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Preview: Jacob Sullum: Reason Magazine articles.

Jacob Sullum: Reason.com articles.





Updated: 2017-07-22T00:00:00-04:00

 






Reefer Madness at The New York Times

2017-07-22T06:00:00-04:00

"The federal government should repeal the ban on marijuana," The New York Times declared in an editorial published on July 27, 2014. That week, the paper ran a series of essays fleshing out the case for legalization, including a piece in which editorial writer Brent Staples exposed the ugly roots of pot prohibition. "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria during the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time," Staples wrote. He mentioned "sensationalistic newspaper articles" that tied marijuana to "murder and mayhem" and "depicted pushers hovering by the schoolhouse door turning children into 'addicts.'" He did not mention that many such stories appeared in The New York Times. In the context of the era, when papers across the country were running news reports with headlines like "Evil Mexican Plants That Drive You Insane" (Richmond Times-Dispatch) and "Smoking Weed Turns Mexicans to Wild Beasts" (Cheyenne State Leader), the Gray Lady's marijuana coverage during the first few decades of the 20th century was not especially egregious. But to modern eyes, it is remarkably naive, alarmist, and racist. There were occasional bursts of skepticism, but in general the paper eagerly echoed the fantastical fearmongering of anti-drug crusaders such as Harry J. Anslinger, who ran the Federal Bureau of Narcotics (FBN) from 1930 to 1962. The path the Times traveled from promoter to opponent of pot prohibition parallels the journey of Americans generally, most of whom supported legalization by the time the paper's editorial board came around on the issue. In both cases, the single most powerful explanation for the reversal is growing familiarity with marijuana, which discredited the government's claims about its hazards. Since exotic intoxicants tend to be scarier than the ones you and your friends use, it is not surprising that fear of marijuana receded as direct or indirect experience with it became a normal part of adolescence and young adulthood. Conversely, people are much more inclined to accept outlandish claims about drugs they have never personally encountered. In that respect, the supposedly sophisticated and empirically grounded journalists employed by The News York Times are no different from their fellow citizens. 'Mexican, Crazed by Marihuana, Runs Amuck With Butcher Knife' On the face of it, the fact that marijuana seemed exotic to Americans at the turn of the 20th century is puzzling, since it was a common ingredient in patent medicines during the 19th century. Elixirs containing cannabis were sold as treatments for a wide range of maladies, including coughs, colds, corns, cholera, and consumption. An 1857 letter to what was then known as the New-York Daily Times even recommended "Cannabis Indica, the East Indian hemp, known most widely as Hesheesh," as "a sure counteractive to the poison of rabies." The letter cited "that famous benefactor to medical science," Irish physician William O'Shaughnessy, who encountered cannabis as a folk cure in India and introduced it as a medicine to Europeans in the early 1840s. By 1876, a Times story (reprinted from The Boston Globe) was describing cannabis as a medicine that "has been used by the faculty here with great success in cases of dropsy." But that was cannabis, a.k.a. Indian hemp. The first reference to "the Marihuana" in the Times, in a 1901 story with a Mexico City dateline, described it as "a harmless-looking plant" that "sends its victims running amuck when they awaken from the long, deathlike sleep it produces." The origin of the word marijuana (also spelled marihuana and mariguana) is uncertain. A quarter-century after the term first appeared in the Times, the paper's Latin American correspondent speculated that it "is probably a combination of the names Mary and Jane in Spanish, Maria y Juana." By 1937, the year Congress banned the pl[...]



Do You Have a Right to Follow the President on Twitter?

2017-07-19T00:01:00-04:00

It will surprise no one familiar with Donald Trump's attitude toward criticism that people who make negative comments about him on Twitter may find their access to his account blocked. If Trump were an ordinary Twitter user, he would be well within his rights to shun anyone who offends him. But Trump is no ordinary Twitter user. He is the president of the United States, and he regularly uses his @realDonaldTrump account—which has 34 million followers, about 15 million more than the official @POTUS account—for presidential purposes. A federal lawsuit filed last week argues that Trump's current use of the Twitter account he established in 2009 makes it a "designated public forum," meaning that banishing people from it based on the opinions they express violates the First Amendment. The idea that you have a constitutional right to follow the president on Twitter is not as silly as it might seem. If the White House let visitors to its website post comments and used a filter to block criticism while allowing praise, that would pretty clearly violate the right to freedom of speech. The Knight First Amendment Institute at Columbia University, which filed the Twitter lawsuit on behalf of itself and seven Trump critics blocked by his account, argues that the president's viewpoint discrimination on the social media platform is analogous. The institute's beef is not with Twitter, a private company that is not constrained by the First Amendment, but with the president and his staff. If Trump used his Twitter account primarily to discuss golf, real estate, or his grandchildren, his criteria for granting access to it would not raise constitutional issues. But Trump uses his Twitter account primarily to discuss work-related subjects such as appointments, executive orders, international affairs, policy initiatives, and press coverage of his administration. Trump's tweets, some of which are posted by White House aides, routinely make news. Sometimes they announce major decisions, such as the appointment of a new FBI director, before any other source. The @realDonaldTrump profile lists his location as Washington, D.C., describes him as the "45th President of the United States of America," and displays official White House photos. The White House social media director describes @realDonaldTrump, along with @POTUS and @WhiteHouse, as a way of "communicating directly with you, the American people!" Trump's press secretary says his tweets are "official statements by the President of the United States." The National Archives and Records Administration agrees, meaning the tweets must be preserved along with other official records. Except for those specifically banned, Trump's Twitter account is open to all, and according to Bloomberg BusinessWeek "a typical Trump tweet" generates "20,000 or so replies." As a result, says the Knight First Amendment Institute, the @realDonaldTrump account has become "an important public forum for speech by, to, and about the President." Twitter users banned by Trump are largely excluded from that forum. They cannot follow him, see his tweets while logged onto Twitter, reply to them, debate other commenters, send direct messages to him, use Twitter's search function to locate specific Trump tweets, or see which accounts follow the president or are followed by him. Banned users can still see the president's tweets if they log out of Twitter, and they can evade the restrictions by creating new accounts under pseudonyms, although they run the risk of being banned again if they say something that irks the president. Alex Abdo, one of the attorneys behind the Twitter lawsuit, argues that "these possibilities are not constitutionally adequate alternatives for users blocked by President Trump any more than the possibility of reentering a town meeting in disguise, or listening in through an open window, would be a constitutionally adequate alternative for a person wrongly ejected from a town hall." The crucial question is whether Trump has created the [...]



Camera-Shy Cops Have No Legal Recourse

2017-07-12T00:01:00-04:00

Last month former FBI Director James Comey said he was relieved to hear there might be "tapes" of his conversations with Donald Trump, since the audio record would confirm his account of those interactions. Last year Comey was less keen on recordings of law enforcement officials, worrying that "viral videos" of police encourage a dangerous passivity that may contribute to rising homicide rates. Those dueling reactions reflect the dual potential of ubiquitous recording technology, which can expose bad behavior or exonerate cops falsely accused of it. Police across the country will have to adjust to the reality that any citizen with a smartphone can record them when they are on duty, because there is nothing they can legally do to stop it, as a federal appeals court confirmed last week. The decision, by the U.S. Court of Appeals for the 3rd Circuit, involved two incidents in which Philadelphia police officers forcibly interfered with people who were trying to record them. Such harassment, which often involves phone confiscation and trumped-up criminal charges, is sadly common, even though every federal appeals court to consider the issue has said it violates the First Amendment. In 2012 Amanda Geraci, a member of a police watchdog group, was observing an anti-fracking protest at the Philadelphia Convention Center when she tried to record an arrest. As the 3rd Circuit describes it, "An officer abruptly pushed Geraci and pinned her against a pillar for one to three minutes, which prevented her from observing or recording the arrest." In 2013 Richard Fields, then a Temple University sophomore, was standing on a sidewalk when he noticed cops breaking up a house party. After he took a picture and refused to leave the area, the police grabbed his phone and cited him for obstructing a public passage. After Geraci and Fields sued the cops and the city, the defendants did not challenge their claim that the First Amendment protects the right to record police in public places. That would have been hard to do, since the Philadelphia Police Department has officially acknowledged as much since 2011. Instead the officers argued that they should be immune from liability because the right to record the police was not "clearly established" when they violated it. U.S. District Judge Mark Kearney gave them a victory they were not seeking, saying what Geraci and Fields were trying to do was not sufficiently "expressive" to be protected by the First Amendment. According to the 3rd Circuit, Kearney missed the point. "This case is not about whether Plaintiffs expressed themselves through conduct," the appeals court says. "It is whether they have a First Amendment right of access to information about how our public servants operate in public….Recording police activity in public falls squarely within the First Amendment right of access to information." The appeals court nevertheless concludes that the law was not clear enough on this point in 2012 or 2013 to hold the officers responsible for violating it. As Judge Richard Nygaard notes in his partial dissent, that aspect of the ruling is hard to swallow. When the cops roughed up Geraci and detained Fields, four circuit courts had already ruled that recording police is protected by the First Amendment. Even more tellingly, Nygaard notes, "the Police Department's official policies explicitly recognized this First Amendment right well before the incidents under review here took place." The department's rule against interfering with recordings, established in 2011, was reiterated in 2012, when "the Department mandated that a sergeant read it at every roll call." Nygaard notes that "each police officer also received a copy of the Directive and was required to sign that they received it." Given this background, it's hard to believe the cops who assaulted Geraci and stole Fields' phone did not realize their actions were illegal. Ignorance of the law is no excuse for the people cops arrest, and it should not pro[...]



It's Not a Lie If the President Believes It

2017-07-05T00:01:00-04:00

Donald Trump views the mainstream press with contempt, and the mainstream press returns the favor. Or is it the other way around? Just as the president has trouble distinguishing between negative press coverage and "fake news," the journalists who cover him tend to treat every inaccurate, unfounded, or even debatable statement he makes as a lie. That mistake, to which I myself am sometimes prone, clouds the judgment and damages the credibility of reporters and commentators who aspire to skepticism but too often settle for reflexive disbelief. New York Times columnist David Leonhardt recently catalogued "nearly every outright lie [Trump] has told publicly since taking the oath of office." There are a lot of verifiably false assertions on Leonhardt's list, but it's an exaggeration to say every one of them is an "outright lie," which implies that Trump knew the statement was wrong when he made it and said it with the intent of misleading people. Take Trump's preposterous puffery about the size of the crowd at his inauguration. "It looked like a million, million and a half people," he said the next day in a speech at CIA headquarters. Four days later, Trump was still marveling at the size of the crowd. "The audience was the biggest ever," he told ABC News anchor David Muir on January 25, standing in front of a photo on the wall in the White House. "This crowd was massive. Look how far back it goes." Maybe Trump was trying to trick people into ignoring plain photographic evidence that his inaugural audience paled beside Barack Obama's in 2009. But it seems much more likely that he was offering an emotionally tinged, self-flattering impression of his experience as he took the oath of office. Similarly, Trump's fanciful claims about the size of his Electoral College victory and the millions of phantom fraudulent voters who cost him the popular vote probably are best understood not as lies but as ego-stroking delusions. The ease of disproving such contentions hardly seems consistent with a calculated plan to deceive. Yet here is the headline that the Times used for its January 23 story about Trump's obsession with voter fraud: "Trump Repeats Lie About Popular Vote in Meeting With Lawmakers." It's not a lie if the president believes it. Leonhardt likewise deems it an "outright lie" when Trump makes an ill-informed statement on subjects such as the murder rate, the number of people affected by his travel ban, or the adequacy of refugee screening procedures. Sheer sloppiness, combined with a tendency to accept misinformation that serves one's agenda, is a more plausible explanation for such lapses. Leonhardt's list is also marred by the inclusion of arguable claims that hinge on interpretation. On at least five occasions, for instance, Trump has described a post-election statement by Times Publisher Arthur Sulzberger Jr. and Executive Editor Dean Baquet as an apology to the paper's readers. Leonhardt counts all five, insisting that the Times "never apologized," which is technically true. But Sulzberger and Baquet did suggest that "Donald Trump's sheer unconventionality [led] us and other news outlets to underestimate his support among American voters," which certainly sounds like an admission of error. In that same statement, Sulzberger and Baquet promised to "report America and the world honestly, without fear or favor, striving always to understand and reflect all political perspectives and life experiences in the stories that we bring to you"; to "hold power to account, impartially and unflinchingly"; and "to bring the same fairness, the same level of scrutiny, the same independence to our coverage of the new president and his team." These are noble aspirations. The Times clearly falls short of them when it reports as fact something that is fundamentally unverifiable: the president's state of mind when he says things that are inconsistent with reality. Pointing out the inconsistency is fair and necessary in r[...]



What America Taught a Murderous Drug Warrior

2017-07-02T15:42:00-04:00

The masked gunmen came for Paquito Mejos two days after he surrendered to police in Manila, identifying himself as an occasional user of methamphetamine, known locally as shabu. The cops later claimed Mejos, a 53-year-old electrician and father of five, was a drug dealer who drew a gun on them. Relatives say the cops planted the gun, along with a packet of meth. This is what daily life during Rodrigo Duterte's murderous war on drugs looks like, which is why his critics were dismayed that Donald Trump seemed to bless it during a "very friendly" telephone conversation with the Philippine president in April. Trump's chumminess with Duterte fits a pattern of admiration for authoritarian leaders around the world. But it is also a logical extension of the policies the U.S. government has been pushing for more than a century. According to the Philippine National Police (PNP), more than 7,000 people have been killed by officers, vigilantes, or other unidentified gunmen since Duterte took office last summer. As of April 23, some 2,717 of the dead were described as "suspected drug personalities killed in police operations," a category that supposedly includes Paquito Mejos. When Human Rights Watch (HRW) investigated that case and 31 other deaths, the group found "a damning pattern of unlawful police conduct in these killings, designed to paint a veneer of legality over summary executions." The author of the report said "police routinely kill drug suspects in cold blood and then cover up their crime by planting drugs and guns at the scene." Besides the police killings, the PNP's numbers indicate, another 3,603 people had died in "extrajudicial, vigilante-style, or unexplained killings" as of January 9. HRW says many of these homicides "are in fact death-squad-style extrajudicial executions by police and police agents." The carnage, which has drawn international condemnation, is only a down payment on Duterte's campaign promise to "kill them all." As a candidate, he said he would fatten the fish in Manila Bay by filling it with the bodies of criminals. Since his election, he has publicly urged people to murder drug addicts, described children killed in the drug war as "collateral damage," likened his own bloodthirstiness to Adolf Hitler's, and told police they needn't worry about being investigated for excessive use of force. "My order is shoot to kill you," Duterte said in remarks aimed at drug dealers last August. "I don't care about human rights, you better believe me." Trump's reaction to all this, according to a transcript of his conversation with Duterte prepared by the Philippine Department of Foreign Affairs, was to "congratulate" Duterte for his "unbelievable job on the drug problem" while criticizing Barack Obama for expressing reservations about it. "What a great job you are doing," enthused the U.S. president, who also invited Duterte to the White House. Trump surely can be faulted for either not knowing or not caring what Duterte's "great job" entails. But Duterte's main sin is taking the rhetoric of American drug prohibitionists a little too seriously. Back in 1989, the head of the Office of National Drug Control Policy, William J. Bennett, who has a Ph.D. in philosophy, cited his expertise in ethics while declaring on CNN that "there's no moral problem" with beheading drug dealers, since the penalty is "proportional to the nature of the offense." The following year, Los Angeles Police Chief Daryl Gates took Bennett's reasoning a step further, telling a Senate committee that casual drug users "ought to be taken out and shot" as traitors in the war on drugs. Duterte is implementing the program outlined by Bennett and Gates, extirpating anyone who dares to flout the government's pharmacological taboos. Like U.S. drug warriors, he casts peaceful transactions—the exchange of money for psychoactive substances—as acts of aggression that pose an existential threat to the nati[...]



Trump's Travel Ban Is Legal but Dumb

2017-06-28T00:01:00-04:00

This week the Supreme Court unblocked most aspects of President Trump's executive order limiting entry into the United States, signaling that the restrictions are likely to be upheld. That makes sense, because the reasons that two federal appeals court offered for upholding injunctions against Trump's order are unpersuasive. But the fact that Trump's policy is legal does not make it smart. The original version of Trump's order was issued in great haste a week after he took office, and it showed. The 90-day ban on entry by citizens of seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) applied to current visa holders, including people working and studying in the United States, and legal permanent residents, who were barred from returning home after traveling abroad. Adding to the confusion, the travel ban took effect immediately, stranding residents and visitors in mid-trip without notice. The result was dismay and disorder at airports around the world as officials, travelers, and lawyers grappled with the new policy. After the order was blocked by the courts, Trump issued a revised version on March 6, clarifying that the travel ban did not apply to legal permanent residents, who have a right to due process when the government tries to prevent their re-entry, or to current visa holders, whose hosts may have standing to sue. Notably, the order issued by the Supreme Court on Monday says that while the case is pending the travel ban should not be enforced against visa applicants or would-be refugees with a "bona fide relationship" to Americans, such as relatives, students accepted by U.S. universities, employees hired by U.S. companies, or lecturers booked to speak here. The revised order also eliminated Iraq from the list of targeted countries and excised language favoring religious minorities from the section imposing a 120-day moratorium on admission of refugees. Critics cited that preference as evidence that the order was motivated by anti-Muslim bias. The U.S. Court of Appeals for the 4th Circuit nevertheless concluded that the March 6 order "in context drips with religious intolerance, animus, and discrimination." The context that the court deemed relevant consisted mostly of statements made by Trump or his surrogates before and after the election, including his support for "a total and complete shutdown of Muslims entering the United States." But that is not the policy Trump actually tried to implement, and relying on his campaign comments to conclude that his executive order is a "Muslim ban" in disguise leads to strange results. The plaintiffs conceded, for example, that if Hillary Clinton had been elected president and issued exactly the same executive order, it "could be constitutional." The U.S. Court of Appeals for the 9th Circuit relied on a different rationale when it upheld an injunction against Trump's order, saying he exceeded his statutory authority because he did not make an evidence-based determination that admitting the people he wants to exclude would be "detrimental to the interests of the United States." But that was really just another way of saying that Trump's policy, which is supposedly aimed at protecting Americans from terrorists, is half-baked and empirically unsound. That much is true. Since 1975, no terrorist from any of the countries covered by the travel ban has killed anyone in the United States, and the odds of being killed by a refugee are infinitesimal. In any case, it has never been clear why a travel ban was necessary for Trump to deliver the "extreme vetting" he promised. Even the "total and complete" Muslim ban he originally proposed was supposed to last only as long as it took to "figure out what is going on," which according to his executive orders means three months. Trump has been president for more than five months. By his own account, he could have made any necessary im[...]



The NRA Shuns a Second Amendment Martyr

2017-06-21T00:01:00-04:00

Philando Castile did what you are supposed to do if you have a concealed-carry permit and get pulled over by police: He let the officer know he had a gun. Had Castile been less forthcoming, he would still be alive. Last Friday a Minnesota jury acquitted the cop who killed Castile of second-degree manslaughter, demonstrating once again how hard it is to hold police accountable when they use unnecessary force. The verdict also sends a chilling message to gun owners, since Castile is dead because he exercised his constitutional right to keep and bear arms. Jeronimo Yanez, an officer employed by the St. Anthony, Minnesota, police department, stopped Castile around 9 p.m. on July 6 in Falcon Heights, a suburb of Minneapolis and St. Paul. The official reason was a nonfunctioning brake light. The actual reason, according to Yanez, was that Castile resembled a suspect in a convenience store robbery that had happened four days before in the same neighborhood. The full extent of the resemblance was that Castile, like the suspect, was black, wore glasses and dreadlocks, and had a "wide-set nose." Castile, a 32-year-old cafeteria manager, had nothing to do with the robbery. But in Yanez's mind, Castile posed a threat. The traffic stop began politely but turned deadly within a minute. Audio and video of the encounter show that Yanez asked for Castile's proof of insurance and driver's license. After Castile handed over his insurance card, he calmly informed Yanez, "Sir, I have to tell you that I do have a firearm on me." Yanez interrupted him, saying, "OK, don't reach for it, then." Castile and his girlfriend, Diamond Reynolds, who was sitting in the front passenger seat, repeatedly assured the officer that Castile was not reaching for the weapon. But by now Yanez was in full panic mode. "Don't pull it out!" he screamed, immediately drawing his weapon and firing seven rounds into the car, heedless of Reynolds and her 4-year-old daughter, who was in the backseat. Mortally wounded, Castile moaned and said, "I wasn't reaching for it." Reynolds, who drew nationwide attention to the shooting by reporting it via Facebook Live immediately afterward, has consistently said Castile was reaching for his wallet to retrieve his driver's license, per Yanez's instructions. Yanez initially said he thought Castile was reaching for his gun; later he claimed to have seen Castile pulling out the pistol, which was found inside a front pocket on the right side of the dead man's shorts. Yanez clearly acted out of fear. The question is whether that fear was reasonable in the circumstances and whether deadly force was the only way to address it. Jeffrey Noble, an expert on police procedure, testified that Yanez's actions were "objectively unreasonable." The officer had "absolutely no reason" to view Castile as a robbery suspect, Noble said, and could have mitigated the threat he perceived by telling Castile to put his hands on the dashboard or stepping back from the car window. If Castile planned to shoot Yanez, why would he announce that he had a firearm? That disclosure was obviously aimed at avoiding trouble but had the opposite effect because Yanez was not thinking clearly. Officers like Yanez, who is leaving his department under a "voluntary separation agreement," pose a clear and present danger to law-abiding gun owners. Yet the National Rifle Association (NRA) has been curiously reticent about the case. A day after the shooting, the NRA said "the reports from Minnesota are troubling and must be thoroughly investigated." It promised "the NRA will have more to say once all the facts are known." The reports have been investigated, and the facts are known. Yet the NRA has not added anything to the bland, noncommittal statement it made a year ago. You'd think "the nation's largest and oldest civil rights organization" would have more to say about an innocen[...]



The Search for a Place to Toke Up

2017-06-18T06:00:00-04:00

Denver has a bunch of businesses where you can legally buy marijuana but none where you can legally use it. That is supposed to change under a local ballot initiative approved by voters last fall. But a statewide solution to Colorado's cannabis consumption conundrum has been derailed by fears of a federal crackdown.

Amendment 64, the 2012 ballot initiative that made Colorado the first state to legalize marijuana for recreational use, allows adults 21 and older to use it at home. But Amendment 64 does not apply to "consumption that is conducted openly and publicly," which is a petty offense punishable by a $100 fine. Because the meaning of "openly and publicly" is a matter of dispute, finding places to enjoy the marijuana that has been sold by state-licensed retailers since 2014 remains a tricky proposition.

In Denver, which banned marijuana use not only in parks and on sidewalks but in all businesses open to the public, frustrated cannabis consumers put the issue to a vote. Initiative 300, which was approved by 54 percent of voters in November, lets customers of specially licensed businesses use marijuana they bring with them.

Under Amendment 64, those establishments cannot include pot shops, and state alcohol regulators say bars may not allow marijuana use either. But any other business can seek a city permit to create a "designated consumption area," provided it is not within 1,000 feet of a school and has the support of "an eligible neighborhood organization." The city, which at press time was still working on details such as whether and where pot smoking (as opposed to vaping or edible consumption) will be allowed, planned to start accepting permit applications this summer.

At the state level, meanwhile, legislators in April gutted a bill that would have authorized "marijuana membership clubs" because they worried about how Attorney General Jeff Sessions, an old-fashioned pot prohibitionist, might respond. Democratic Gov. John Hickenlooper had threatened to veto the bill, citing "the uncertainty in Washington."

Instead of allowing cannabis clubs wherever they are not prohibited by local law, the revised bill authorizes local governments to legalize them. "I'd like to see [a bill] that goes much further," Rep. Jonathan Singer (D–Longmont) told the Associated Press. "But in a year with Jeff Sessions, a small first step is better than no step at all."

Other states have learned from Colorado's difficulties when it comes to defining spaces outside of private residences where marijuana use will be allowed. The legalization initiatives approved by voters in California, Maine, Massachusetts, and Nevada last year all leave the door open to on-site consumption in businesses that sell cannabis.




A Presidency Consumed by Pettiness

2017-06-14T00:01:00-04:00

Last month Donald Trump interrupted his own comments on Republican health care legislation to marvel once again at the victory he had won six months before. "I'm president!" he exclaimed. "Hey! I'm president! Can you believe it, right?" Trump's comical obsession with his own electoral accomplishment is at the root of his current political troubles, including investigations that will hobble him for months, even if they ultimately find no criminal wrongdoing. By constantly revisiting his unexpected defeat of Hillary Clinton and insisting that everyone acknowledge how amazing it was, he may ensure that nothing he does in the White House will be nearly as impressive. After the election, Trump called his victory a "landslide." It wasn't. As political scientist John J. Pitney Jr. pointed out, Trump's share of the electoral vote ranked 46 out of 58 presidential contests. Trump said his feat was still impressive because, as he put it last week, "it's almost impossible for the Democrats to lose the Electoral College." That is not true either. If anything, Republicans have a slight advantage in the Electoral College, because Democrats are more concentrated in certain parts of the country and therefore tend to waste more popular votes by far exceeding the threshold needed to win a state. Trump said he would have won the popular vote were it not for "the millions of people who voted illegally." Nearly every study of the issue has found that voting fraud is rare, and there is no evidence that it happened last year on the scale suggested by Trump. Even the ridiculous spat over the size of the crowd at Trump's inauguration was a proxy for the debate about how big his victory was. By insisting, contrary to photographic evidence, that something like 1.5 million people showed up, Trump was again suggesting that the official tally on Election Day underestimated his popular support. All of these Trump-generated tiffs were counterproductive distractions from the president's avowed policy goals. But none compares to the ongoing controversy over the FBI's investigation of Russian meddling in the presidential election, which Trump has magnified because he cannot abide any implied diminishment of the achievement he commemorates by handing election maps to White House visitors. Trump calls the FBI investigation, which includes possible ties between his campaign and the Russians who hacked emails that made Clinton look bad, a "witch hunt" and a "taxpayer-funded charade." After he fired FBI Director James Comey last month, he admitted that the Russia investigation was a factor, lending credibility to the charge that he was trying to obstruct justice. "When I decided to just do it," Trump told NBC News, "I said to myself...this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election that they should have won." Last week, after Comey cited that interview in his Senate testimony by way of explaining his dismissal, Trump returned to the theme. He told reporters that Russia's election meddling "was an excuse by the Democrats, who lost an election that some people think they shouldn't have lost." Trump is understandably upset about the unproven claim that his associates had something to do with the Russian operation. But what really gets his goat is the suggestion that he would not have won the election without Russian help. The president was annoyed when Comey publicly acknowledged in March that the FBI was looking at possible links between Russia and the Trump campaign. But he also was angry when the FBI director testified last month that felt "mildly nauseous" about the possibility that his investigation of Clinton's sloppy email practices as secretary of state helped tip the election to Trump. Both comments irked Trump because they cast do[...]



Trump's Travel Ban Is Security Theater

2017-06-07T00:01:00-04:00

Donald Trump is starting to sound like a critic of his own administration. "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.," he tweeted on Monday, referring to the executive order currently before the Supreme Court. It was Trump, not the Justice Department, who decided to issue that revised order, based on the reasonable expectation that it would be easier to defend in court. And contrary to Trump's claim that his "smart, vigilant and tough" policy provides "an extra level of safety," there is little reason to think either version of the travel ban would reduce the average American's already tiny risk of being killed by a terrorist. Trump's original order, issued on January 27, imposed a 90-day ban on travel to the United States by citizens of seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It suspended admission of refugees for 120 days, indefinitely for Syrians. The revised order, issued on March 6 after the first version was blocked by the courts, removed Iraq from the list of targeted countries and eliminated the distinction between Syrians and other refugees. Two other changes were more legally significant. The revised order clarified that the travel ban does not apply to lawful permanent residents, who according to the Supreme Court have a right to due process when the government tries to exclude them, or current visa holders, whose American hosts might have standing to sue. Trump's lawyers also excised a preference for refugees from religious minorities (typically Christians), which critics cited as evidence of unconstitutional anti-Muslim bias. Trump, who approved those changes, now says they were a mistake. "The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court," he tweeted on Monday, "& seek much tougher version!" That comment misconstrues the roles of the Justice Department, which is defending Trump's order, not rewriting it, and the Supreme Court, which can only review the order as it stands. And if Trump plans to revive the original ban after the second one passes muster, he will only prolong the litigation he claims is endangering national security. That claim is highly implausible. Trump says he picked the seven (now six) countries covered by the travel ban because they were on a list of nations excluded from the visa waiver program as sponsors of terrorism or havens for terrorists. But people from those countries seem to pose a much smaller terrorist threat than people from countries that were omitted from the order. Based on his count of domestic plots and attacks by foreign-born terrorists from 1975 through 2015, Cato Institute immigration analyst Alex Nowrasteh reports that 19 perpetrators came from Saudi Arabia, 14 from Pakistan, 11 from Egypt, and 11 from Cuba. Their combined death toll was 2,537. During the same period, Nowrasteh found, six foreign-born terrorists came from Iran, six from Sudan, two from Somalia, and one from Yemen. None came from Libya or Syria. The combined death toll for terrorists from those six countries was zero. University of North Carolina at Chapel Hill sociologist Charles Kurzman compiled information on Muslims who carried out or were accused of planning domestic attacks last year. Most (12 out of 23) were American-born converts. Just two, both Somalis who were shot and killed during nonfatal knife attacks, came from a country on Trump's list or had parents who did. Even if the list made sense, it is hard to imagine how the "extreme vetting" Trump promises could identify future terrorists. As an internal Department of Homeland Security report noted last March, "most foreign-born, US-based violent extremists l[...]



Government Hype Helps Terrorists

2017-05-31T00:01:00-04:00

John Kelly, the secretary of homeland security, seems to be moonlighting as a publicist for ISIS. How else to explain his fearmongering warnings about terrorism on Fox News last Friday? "I was telling Steve on the way in here," Kelly said, referring to Fox & Friends co-host Steve Doocy, "if he knew what I know about terrorism, he'd never leave the house in the morning." Kelly's remarks, which seemed designed to put a damper on everyone's plans for Memorial Day weekend, complemented the efforts of terrorists, who aim to provoke an emotional response that grossly exaggerates the threat they pose. "It's everywhere," Kelly said. "It's constant….It can happen almost here anytime." He probably meant it can happen here almost anytime, but you get the idea: The threat of terrorism is so severe and pervasive that it's foolhardy to venture past your front doorstep. Contrary to Kelly's claims, terrorism is not everywhere, and it is not constant. It is a rare event that is much less likely to kill you than myriad hazards that somehow do not deter us from leaving our homes in the morning. From 1970 through 2016, according to numbers from the Global Terrorism Database, terrorist attacks killed 3,662 people in the United States. Nearly 3,000 of those deaths, 82 percent of the total, resulted from the attacks of September 11, 2001. Counting 9/11, the average is 78 deaths a year, which makes the annual risk of dying in a terrorist attack within the United States 1 in 4.2 million for a random American. The lifetime risk, based on a life expectancy of 78.8 years, is roughly 1 in 53,000. Those risks pale beside many we face every day without being paralyzed by fear. If Steve Doocy is looking for reasons to stay home, he should worry less about a terrorist attack and more about a car crash, which according to the National Safety Council is about 465 times as likely to kill him. The odds that Doocy will be killed by assault with a firearm, drowning, or exposure to excessive natural heat are, respectively, 143, 45, and three times as high as the odds that he will be murdered by a terrorist. Not that taking Kelly's advice by cowering in his home will necessarily save Doocy. He still might fall down the stairs, a kind of mishap that each year kills nearly 30 times as many Americans as terrorists do. Some risks are smaller than the chance of dying in a terrorist attack. Based on terrorism deaths since 1970, you are less likely to be killed by lightning, a dog, or stinging insects. But that is true only if we include the 9/11 attacks, which were highly unusual and are unlikely to be repeated, in the calculations. If we limit the analysis to the years 2002 through 2016, the annual risk of dying in a terrorist attack is about 1 in 25 million, while the lifetime risk is 1 in 317,000. By that measure, lightning is twice as dangerous as terrorists. Why does Kelly seem determined to make us worry about terrorism far more than is rational? Perhaps because his budget depends on an inordinate fear of terrorism. In a 2014 Cato Institute policy analysis, John Mueller and Mark Stewart estimated that annual counterterrorism spending by federal, state, and local governments had risen by $75 billion since 9/11. Applying the usual standards for assessing the cost-effectiveness of regulations, they found that the additional spending could be justified only if it saved something like 11,000 lives a year. That is not remotely plausible, but Kelly is doing his best to convince us otherwise by magnifying the terrorist threat and alluding to secret knowledge of attacks averted. "The good news for us in America," he said on Fox News, "is we have amazing people protecting us every day." He mentioned several agencies, but his own got top billing. © Copyright 201[...]



Did Trump Know Enough to Obstruct Justice?

2017-05-24T00:01:00-04:00

For almost a year, Donald Trump has been complaining that FBI Director James Comey gave Hillary Clinton "a free pass for many bad deeds," as the president recently put it on Twitter. Trump thinks his opponent in last year's presidential election should have been prosecuted for her loose email practices as secretary of state, even if she did not deliberately expose classified information. The president might want to reconsider that hardline attitude. The reason Comey cited for not recommending charges against Clinton—a lack of criminal intent—could prove crucial in rebutting the allegation that Trump obstructed justice by trying to impede the FBI's investigation of ties between his associates and the Russian government. When Comey announced the results of the Clinton investigation last July, he criticized her "extremely careless" handling of "very sensitive, highly classified information," saying she "should have known" the unsecured private email system she used "was no place" to discuss such matters. That description sounded like grounds for charging Clinton under 18 USC 793, which makes it a felony to "mishandle classified information either intentionally or in a grossly negligent way." But Comey argued that "no reasonable prosecutor" would pursue a case against Clinton based on gross negligence. He said he was aware of just one case where the government had used that standard in the century since the law was passed, which suggests federal prosecutors "have grave concerns about whether it's appropriate." While prosecuting Clinton might have been legally feasible, Comey told a congressional committee, it would have been unjust. "In our system of law, there's a thing called mens rea," he said, referring to the state of mind required for a conviction. "We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do." That brings us back to Trump, who has done (or allegedly done) several things that could be viewed as attempts to undermine the FBI's investigation of Russian meddling in last year's presidential election, including the hacking of embarrassing Clinton-related emails. The FBI probe, Comey confirmed during congressional testimony in March, encompasses possible collusion between Russia and the Trump campaign. After Comey said that, The Washington Post reported this week, Trump asked Daniel Coats, director of national intelligence, and Michael Rogers, director of the National Security Agency, to publicly say there was no evidence of such collusion. Both declined, deeming the request improper. The previous month, according to a Comey memo described by The New York Times, Trump interceded with the FBI director on behalf of former National Security Adviser Michael Flynn, one of the associates whose ties to Russia are of interest to the bureau. "I hope you can see your way clear to letting this go, to letting Flynn go," Trump reportedly told Comey. "He is a good guy. I hope you can let this go." A few months after that alleged encounter, Trump fired Comey. Two days later, Trump admitted that the Russia probe, which he had denounced as a "taxpayer-funded charade" on Twitter the day before he gave Comey the boot, was on his mind when he made the decision. Some Democrats are already calling for Trump's impeachment, arguing that his response to the FBI investigation amounts to obstruction of justice. But that crime requires proof of intent, and it is not at all clear that Trump knew he was doing something he shouldn't do—the standard that Comey applied to Clinton. If Trump was acting "corruptly," as the statute that seems most relevant requires, why would he approach three officials who were likely to make note of his requests? Why wou[...]



Jeff Sessions Is a Glutton for Punishment

2017-05-17T00:01:00-04:00

As a senator, Jeff Sessions helped kill bipartisan legislation that would have made federal drug penalties less mindlessly draconian. As attorney general, he seems determined to make those penalties as disproportionate as possible, instructing federal prosecutors to pursue the most serious provable charges without regard to culpability or dangerousness. That policy, announced in a memo last week, reverses a Justice Department initiative that sought to spare low-level, nonviolent drug offenders the five-, 10-, and 20-year minimum sentences that are supposedly aimed at ringleaders and kingpins. The shift signals a return to unfair, ineffective drug policies that have been rightly repudiated by politicians across the political spectrum. The current mandatory minimums sentences for drug offenses, which Congress enacted during the "Just Say No" era that Sessions remembers fondly, are tied to drug weight, which is often a poor indicator of a defendant's role in a criminal organization or the danger he poses. "Crafted purportedly for sharks, mandatory minimums catch lots of minnows," notes Families Against Mandatory Minimums, which points out that "93 percent of individuals who receive mandatory minimum sentences played no leadership role in their offense." In 2013 Attorney General Eric Holder tried to ameliorate this injustice by urging federal prosecutors to omit drug weight from charges against nonviolent offenders who did not have leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Largely thanks to that policy, the share of federal drug offenders facing mandatory minimums fell from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. The upshot of that trend was substantially shorter prison sentences for thousands of minor drug offenders. During this same period, the bloated, over-capacity federal prison population, which grew steadily from 1980 through 2013, began to shrink, although that change had more to do with shorter crack cocaine sentences that Congress approved in 2010. How does Sessions, who supported the 2010 reforms, justify his belief that Holder went too easy on drug offenders? "Drugs and crime go hand in hand," he told a police group in New York City last Friday. "Drug trafficking is an inherently violent business." There is nothing inherently violent about the sale of psychoactive substances, as a trip to your local liquor store will confirm. Drug trafficking is violent only because the government makes it so by creating a black market in which there are no legal ways to resolve disputes. In any case, the observation that drug offenders are sometimes violent does not justify the assumption that any given defendant is. Holder's policy made sensible distinctions that Sessions pretends do not exist. Sen. Tom Cotton (R-Ark.), another prominent opponent of sentencing reform, is equally oblivious. Responding to Sessions' memo, Cotton said, "I agree with Attorney General Sessions that law enforcement should side with the victims of crime rather than its perpetrators." That stance obscures the difference between peaceful, consensual transactions that violate no one's rights, such as the exchange of drugs for money, and predatory crimes with specific, identifiable victims, such as robbery and murder. Even if you don't think this distinction makes drug prohibition inherently unjust, it is surely relevant in deciding what punishment someone deserves. The practical impact of Sessions' memo will depend on how federal prosecutors around the country respond to it. But by establishing a new default rule from which prosecutors are supposed to depart only with permission from th[...]



Israel Decriminalizes Pot Possession

2017-05-13T06:00:00-04:00

"More and more citizens are demanding marijuana use be permitted," Yohanan Danino, then Israel's police chief, observed in 2015. "I think the time has come for the Israel police, together with the state, to re-examine their stance on cannabis. I think we must sit and study what's happening around the world."

If it was surprising to hear a sitting police chief talk about tolerating cannabis consumption, it was even more surprising when the country's right-wing government followed Danino's advice, although it didn't go quite as far as he suggested. In March, the Israeli cabinet approved a plan to replace criminal penalties for possessing small amounts of pot with civil fines.

Under the plan, which was endorsed by Public Security Minister Gilad Erdan, a member of the conservative Likud Party, people 18 or older caught with up to 15 grams (half an ounce) of marijuana would be subject to a fine of 1,000 shekels (about $275). The amount would be doubled for a second offense, while third-time offenders would receive probation, possibly coupled with treatment or additional sanctions, such as suspension of their driver's licenses. Criminal charges would be possible, at the discretion of police, only after a fourth offense.

Possession of 15 grams or less is currently punishable by up to three years in prison, although the consequences are usually much less severe. Under attorney general's directives issued in 1985 and 2003, people caught with small amounts of marijuana are not supposed to be arrested for a first offense. Police have discretion as to whether charges should be brought for subsequent offenses.

Arrests for marijuana possession fell 30 percent between 2010 and 2015, from 4,967 to 3,425, in a country with a population of 8.2 million. By comparison, police in the United States, which has a population 40 times as big, arrested about 575,000 people for marijuana possession in 2015, or 168 times as many.

"The current law enforcement policy may come across as arbitrary and draconian, or, alternatively, a dead letter that is no longer enforced," a committee appointed by Erdan concluded. Tamar Zandberg, a member of the left-wing Meretz Party who chairs the Knesset Special Committee on Drug and Alcohol Abuse, said the new approach "sends a message that a million Israelis who consume marijuana aren't criminals."

While recreational use remains illegal, about 25,000 Israelis legally use marijuana as a medicine. Last year, the government made medical marijuana more accessible by letting more doctors prescribe it and allowing ordinary pharmacies to dispense it. In January the government announced $2.1 million in funding for medical marijuana research, and 37 growers received preliminary permits in March, more than quintupling the number of cultivation sites.