The Economist Debates, Gambling, and Empirical Evidence

The Economist hosts Oxford-style debates on its website and this week they are discussing whether gambling should be legalized. Radley Balko, a well-known libertarian is on the side arguing in favor of legalization, and Les Bernal, the director of an anti-gambling interest group is arguing against legalization.

In the opening remarks, Balko focuses on the classic decriminalization argument that criminalization leads to underground markets, which in turn fosters crime and wastes police resources. He also states that gambling doesn't create any victims because the participants act voluntarily, and we as a society shouldn't ban the decisions of consenting adults when there is no harm to others. Bernal, on the other hand, focuses on the predatory practices of the casinos and appeals to the parental instinct of wanting the government to protect predisposed gamblers from themselves. Both are framing the debate in general policy terms and the role the government should play in regulating conduct. Neither tend to focus on historical data or empirical evidence of their claims.

I'm frustrated that Les Bernal did not mention any of the findings in Earl Grinols book, Gambling in America: Costs and Benefits. Contrary to what Balko thinks, gambling isn't like any other consensual crime. As a general rule, when formerly illegal activities are removed from underground markets (black market, drug market) the costs to society become alleviated. However, gambling is the complete opposite. When gambling is legalized, the social costs skyrocket. Crime increases, business and employment costs rise (lost productivity, lost time, embezzlement), bankruptcy rates increase, suicide rates increase, mental illnesses increase, social service costs rise, additional regulatory costs, family costs (divorce, separation, spousal abuse) rise. If you think I'm making this up, read chapter seven of Grinols book. And I'm not even mentioning the economic burdens of gambling (hint: they increase when gambling is legalized). In sum, Grinols found:

What are the benefits and costs of moving from a policy of no casinos on one
hand to the alternative policy of free-entry, laissez faire regarding casinos on
the other? Based on available numbers, costs exceed benefits by a factor
of more than 3:1. (Grinols, at 131.)

I'm not arguing against the legalization of gambling from a moral point of view. I also ascribe to the belief that "people should be free to do what they want, as long as it doesn't harm others" and I don't think a moral objection to conduct by itself is enough to create legislation. But here, legalized gambling does harm others. The evidence proves it. How else can you explain the cyclical history of gambling being legalized, then subsequently banned, over and over again? One generation thinks like Balko, and then the next sees the corruption and harm it brings, leading to an eternal circle-jerk where we never learn from history...or empirical evidence for that matter.

It's amazing that a 26 year-old, who is studying 10-12 hours a day for the bar exam, can come up with a better argument than the opponent in this debate. Does empirical data, instead of talking points, matter anymore?

**Edit note: I typed separate paragraphs in the body, yet blogspot doesn't know how to create them. Time for wordpress.

US Constitution Protects Non-Citizens as Well

Since the failed Christmas Day bombing attempt, many in the public have struggled with how we should treat Umar Abdulmutallab. Last week, two prominent writers, one of the Washington Post (Charles Krauthammer) and one of Politico (Rory Cooper) stated that the undie-bomber should not be given a criminal trial because that would amount to "extending constitutional rights to non-citizens." The underlying premise being that the Constitution applies only to U.S. citizens. This is not true and it is not even a topic of reasonable debate among legal scholars and lawyers. The law is clear - the Constitution is not limited to citizens. And yes, the Constitution applies to terrorists captured in the United States.

The Constitution is a document that limits what the government can and cannot do. It is not a document that grants rights to citizens or non-citizens. Those rights, as evidenced in the Declaration, exist independent of whether or not we have a government. Thus, it should be assumed that the Constitution applies to everyone in the United States or under the government's control, unless explicitly stated otherwise. For example, several of the amendments in the Bill of Rights protect "persons" or "the accused" from government overreach and abuse. As used in regular speech, the term "person" is not limited to just a U.S. citizen. A "person" is any human being. But how can we be sure that the Founders intended to protect all "persons" and not just "citizens?" The answer is simple. The Founders also used the word "citizen" in the Constitution. For example, in listing the requirements of who may be elected as president, one must be a "citizen" of the United States. If the Founders wanted habeas corpus, the right to a trial, and equal protection of the laws to apply only to "citizens," they would have used that specific word instead of "persons" - broadly speaking. Accordingly, unless specifically stated otherwise, the Constitution protects the rights of all "persons" under the government's control.

The Supreme Court has ruled that the Constitution applies to persons, even if they are not U.S. Citizens. In the 14th Amendment Equal Protection case of Yick Wo v. Hopkins, the court overturned a criminal conviction of a Chinese citizen for violating laundry shop regulatory laws. The court wrote, "The rights of petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China. The fourteenth amendment to the Constitution is not confined to the protection of citizens." (emphasis mine) The court added, "The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court." (emphasis mine)

As recently as 2008, the principle was reaffirmed in the case of Boumediene v. Bush. Even though it was a 5-4 decision on the specific question presented to the court, the nine Supreme Court justices unanimously agreed that the Constitution applies to non-citizens in the United States, including one of the most conservative Justices - Justice Scalia. Scalia wrote, "But in extending consitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." (emphasis mine) Not even the most conservative justice would argue that the Constitution only applies to U.S. citizens.

The law is clear that the protections of the Constitution do not apply exclusively to U.S. citizens. Both Democratic and Republican presidents, beginning with Reagan, have recognized this fact and submitted terrorists to U.S. courts. Why is this issue still being debated? Do not let those who claim the Constitution applies only to U.S. citizens fool you. The simple and boring fact that has remained unchanged for centuries is that the Constitution applies to all persons within the jurisdiction of the United States. To claim otherwise is being ignorant of the law or dishonest.

Civilian Trials for Terrorists

Watching the GOP and Dems cower in fear over bringing terrorists to justice in criminal court is a pathetic scene. They don't act like the leaders they should be and they certainly give the terrorists exactly what they want - terror.

And the hysteria is pervasive on both sides of the aisle. Ronald Reagan believed we should treat terrorists as criminals. George H.W. Bush believed the same. As did President Clinton. Even George W. Bush subjected certain terrorists to criminal trials. Yet, today it is considered the position of "far leftists" or extreme "civil libertarians," if one believes we should subject terrorists to criminal trials. Here is Ronald Reagan's official stance on treating terrorists:

Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element in our strategy has been to delegitimize terrorists, to get society to see them for what they are - criminals - and to use democracy's most potent tool, the rule of law against them. (h/t Greenwald)

Our current political climate is a perfect example of how radical and extreme our government/country has become in regards to how we should treat terrorists that are not captured on the battlefield. It shows how easily fear can be used by the government to take away our most precious liberties and erase guiding principles of western civilization.

The most recent example of how we treated a terrorist who tried to blow up an airliner was the Richard Reid case under George W. Bush. Bush made the right decision by placing Reid in the federal court system.

During this time of mass hysteria and people on both the right and left claiming we should abandon our legal system, it's worth remembering what the presiding Judge told Richard Reid during his sentencing:

We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before.

There is all too much war talk here. And I say that to everyone with the utmost respect. Here in this court where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice.

You are not an enemy combatant. You are a terrorist.

You are not a soldier in any war. You are a terrorist.

To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treaty with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice.

So war talk is way out of line in this court. You're a big fellow. But you're not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders. - Judge William Young

Jon Stewart's Missing Homework

Last Monday, Jon Stewart interviewed former Deputy Assistant Attorney General John Yoo on the Daily Show. Many (myself included) expected a sharp back and forth over the legal reasoning used in the infamous "torture memos" authored by Yoo, but to my surprise, Yoo came away from the interview unscathed. He also came across as a likeable guy with a good sense of humor.

I'm perfectly aware that Jon Stewart is not a Constitutional lawyer nor someone versed in national security law, yet, I expected him to touch on a few points which could have been unearthed with basic research or a five minute chat with someone like Scott Horton. Instead, as Kevin Drum noted,

Yoo's argument was, plainly, about what counts as torture. Stewart didn't get that - or pretended not to get that, I'm not sure which - and that led him to continually act surprised by perfectly ordinary statements from Yoo. "You're saying we'd never before considered whether torture was OK?" Stewart would ask, and Yoo would respond, "No, we were trying to figure out for the first time which interrogation techniques were torture and which ones weren't." That's really not hard to understand, but Stewart continually misunderstood it and wasted the entire first segment of the interview."

Stewart didn't bring up the preliminary findings by the Office of Legal Counsel's Office of Ethics and Professional Responsibility which found that Yoo's memos used poor legal reasoning. He also didn't bring up the leading Supreme Court case on Presidential powers and national security law - Youngstown Sheet and Tube v. Sawyer. Research on both of these topics is essential if one is to have an interview with Yoo over the memos and torture in general. Why Stewart didn't do his homework will remain a question for quite some time.

Below, I'm going to take some of John Yoo's statements/arguments and use them as Jon Stewart should have.

Yoo: There were no legal precedents for practices; this question never came up before.
Yoo: What is and isn't torture. We have never come against the question in government before.
Yoo: We had not faced the question of what interrogation methods do not constitute torture but go beyond regular law enforcement methods.
Yoo: What lies in that area between torture and humane treatment?
Yoo: Executive power is limited to what is necessary to win the war.

I can break these statements down into two categories:
1) The issue of what interrogation methods constitute torture or cruel, inhumane and degrading treatment are a "gray" area in US law.
2) The President has unlimited power in war time and can do whatever he pleases as long as his actions are necessary to win the war.

Statement 1
The Torture Act, 18 USC Section 2340, incorporates the UN Convention Against Torture into federal statutory law. Like the War Crimes Act, the Torture Act creates federal jurisdiction to prosecute torture. In the definition of "torture," severe mental pain or suffering must be caused by or result from the "intentional or threatened infliction of severe physical pain or suffering," the administration of threatened administration of "mind-altering substances," "the threat of imminent death," or threatened administration of "mind-altering substances," "the threat of imminent death," or the threat that "another person will be subjected to imminent death, or severe physical pain or suffering." However, when ratifying CAT, the US made a reservation on the law. The effect of the reservation stated that the US was bound by the Convention only to the extent that the treatment in question falls within the punishment prohibited by the 5th, 8th, and 14th Amendments of the US Constitution. Therefore, in order to be considered torture or cruel, inhumane, or degrading treatment (violations of international law, war crimes, and felonious conduct under US domestic law) the actions must be of the type prohibited by those three amendments. Again, John Yoo says that conduct that falls within this category is a "gray" area in US law. He is mistaken. The law is absolutely clear in what conduct - specific interrogation methods - are considered torture or cruel, inhumane, and degrading treatment under US law.

As a general principal in interrogations and treatment of detainees, the Supreme Court prohibits the use of "coercive cruelty." The case of Hudson v. McMillan recognized the use of "shocking with the use of electrical currents," exposure to "undue heat or cold," and infliction of psychological pain as "cruel and unusual punishment in violation of the 8th Amendment." Depriving detainees of warmth and food or use of the cold cell - "for example, a low cell temperature at night combined with a failure to issue blankets," is cruel and inhumane treatment according to the case of Wilson v. Seiter. Estelle v. Gamble found disregard for detainee medical needs an "unnecessary and wanton infliction of pain." The Supreme Court case of Brooks v. Florida described the combination of forced nudity and withholding food in a small cell as, "a shocking display of barbarism." The case of Beecher v. Alabama, discussed mock executions which are explicitly banned under the Torture Act. In that case, a police officer held a gun up to a detainee's head and threatened to kill him if he didn't tell the truth. At that time, another officer fired a rifle in another room. The court found the acts of the police officers as "gross coercion." As almost a mirror image of the treatment of US citizen - Jose Padilla, the case of Wright v. McMann, and Scarver v. Litscher, declared that solitary confinement, sensory deprivation, use of the cold cell and forced nudity, "serve to destroy completely the spirit and undermine the sanity of the prisoner" and rise to the level of conduct that violates the 8th Amendment. Stress positions, where limbs and body parts are forced into unnatural positions while the detainee is handcuffed or shackled to an object, is a per se violation of the 8th Amendment. In Littlewind v. Rayl, the court held "that the 8th Amendment was violated where [the] prisoner was restrained naked for seven hours, denied clothing for six days, denied a blanket for two days, restrained seven days in leg irons and handcuffs, and tied to a bed for eight hours." Even forced nudity or withholding detainee access to the bathroom is considered cruel, inhumane and degrading treatment that violates our Constitution and shocks the conscience.

Surely there is no longer any question that forced nudity in conjunction with stress positions, mock executions, hooding, use of dogs, smearing fecal matter and soiled tampons on the face of a detainee, and the cold cell are in violation of our Constitutional standards and a violation of federal laws criminalizing the use of cruel or inhumane treatment of detainees. Also, keep in mind that many of these techniques were used in succession on detainees instead of isolated applications. There is a conspicuous absence of binding legal decisions stating that these interrogation methods are not cruel and inhumane. The legal precedent is clear that the techniques authorized and used on detainees are violations of US law and felonies punishable up to the death penalty. To claim otherwise is being willfully ignorant of US law or intellectually dishonest. Yet, Jon Stewart didn't point out that what is considered cruel and inhumane treatment in interrogation has been developed by domestic US law.

Statement 2
Among others, Yoo claims the power to regulate the capture of enemies during wartime is possessed solely by the President's Constitutional powers. However, this argument ignores the express provisions of the Constitution. Article I, Sec. 8, delegates to Congress alone the power "[to] make rules concerning captures on land and water." Accordingly, Congress - not the Executive - possesses the authority to create rules applicable to prisoners of war and detainees. Yoo failed to address this textually demonstrable Constitutional commitment in his memo or statements. Additionally, the preeminent case in national security law is Youngstown Sheet and Tube Co. v. Sawyer. Surprisingly, it is absent from Yoo's analysis. In Youngstown, President Truman ordered the seizure of steel mills that had been shut down due to strike, so work could resume. President Truman believed the strike and lack of steel production created a threat to national security and therefore, he could force production under his Article II executive powers. However, the Supreme Court overturned Truman's order saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Because Congress did not give the President the power to act, his actions were unconstitutional. The case also marks the influential formulation of Justice Jackson's tripartite theory on executive power where he states the President has "no monopoly on war-powers." In regards to post 9/11 treatment of detainees, Congress never delegated such authority on the President. Some may cite the AUMF as a delegation of such power, but 18 USC Section 4001 requires an order to be "pursuant to an act of Congress" and the congressional enactment must "clearly authorize detention of imprisonment." The AUMF does not contain an express grant of authority to the executive regarding prisoners, nor is the word "detention" even mentioned. Therefore, the President did not possess the authority to unilaterally determine how detainees would be handled because there was never a congressional delegation of such power to the President.

John Yoo might have responded as he did in his book, by stating that the Youngstown case is distinguishable because it deals with labor disputes. However, this assertion is undermined by the fact the opinion itself addresses executive power - not labor disputes. Clearly, the president's powers are not only limited to what is neccessary to win the war. The Supreme Court has ruled that his powers are far more limited than John Yoo believes.

In short, Yoo's predominant claims that what defines torture or cruel and inhumane treatment is a gray area in US law and the President can do whatever he pleases during wartime is demonstrably untrue. Yet, Jon Stewart let him get away with it. That is a shame. Stewart said he may invite Yoo back on the Daily Show in the future. Let's hope so and let's hope he does his homework this time.


*Disclosure
Many of the excerpts of this post are taken from my GWR or law school term paper. Because I'm unable to place footnotes in a blog post, it needs to be mentioned that many diverse sources were used to compose my paper and I cannot take full credit for all the thoughts/arguments expressed in portions of the above. Among others, thanks to Prof. Wilson Huhn (Univ of Akron Law School), Prof. Jordan Paust (Univ of Houston Law School), and Judge/Prof. Wallach (NYU)