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Raid Of The Day: Hawaii 5-Uh, Oh

Radley Balko   |   March 29, 2013    2:40 PM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

Given the amount of force the Kaua'i, Hawaii Police Department meted out to catch him, you'd think David Hibbitts had gone on a spree of orphanage-and-nunnery-burning. Yet when Hawaii Fifth Circuit Court Judge Kathleen Watanabe finally sentenced him in May 2006, he got all of five years probation, some fines, and community service. His crime? He had mailed 11 pounds of pot to his home in Hawaii while visiting California.

A year earlier, Kaua'i police had intercepted the package and outfitted it with a radio transmitter. They then obtained an "anticipatory search warrant," which authorized them to search whatever house the package was in when it was opened. Hibbitts retrieved the package from the post office. The police followed his Toyota pickup truck down the Kaumuali'i Highway, then into a private neighborhood. But by the time the transmitter indicated that the box had been opened, the police had lost track of the truck. There were seven houses on the street. They had a one in seven chance of getting the right place. So they picked one at random, even though the truck they had been following wasn't parked in any of the driveways.

Inside that house, William and Sharon McCulley were babysitting their grandchildren. According to the McCulleys' subsequent lawsuit, the police entered the home quickly and threw Sharon McCulley and one of the grandchildren to the ground. They screamed profanities at her, put a knee into her back, and pushed a gun to her head, hard enough to leave an imprint of the barrel on her scalp. William McCulley was in the kitchen. Due to a nerve disorder, he used a walker and a leg brace. He also used an implanted device that delivers electrical impulses to help him manage pain. When the police ordered him to the floor, he was apparently too slow to respond, so an officer threw him down with violence. That caused his electrical device to malfunction. He began convulsing -- or as the lawsuit colorfully put it -- "flopping like a fish."

The police had raided the wrong house. When they finally realized as much, they picked another house to raid. Still no box. Finally, on the third try, the police raided the home with Hibbitts, the box of marijuana, and two others inside.

In October 2007, Kaua'i County settled with the McCulleys for $325,000.

Sources: Amanda C. Gregg, "'Wrong house' raid costs county $325K," The Garden Island News, October 24, 2007; Cynthia Kaneshiro, "Probation given in mailed-marijuana case," The Garden Island News, March 4, 2006; Lester Chang, "Violated couple may sue," The Garden Island News, February 9, 2007.

Raid Of The Day: Lewis Caldwell

Radley Balko   |   March 28, 2013   10:50 AM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

On March 6, 2003, six NYPD police officers dressed in riot gear broke down the door to the home of Lewis Caldwell. Police handcuffed Caldwell, a lung cancer patient, and forced him to the floor at gunpoint.

Caldwell's wife returned home from work to find her home filled with police officers and police dogs. She pleaded with the officers to release her husband from the handcuffs, citing his medical condition. They kept him restrained for more than an hour. Caldwell said police were "laughing and joking" while searching his apartment. They found nothing incriminating. They had raided the wrong home.

When the Caldwells filed a complaint, they said a lieutenant called to tell them the raid was completely justified, and "there's nothing you can do about it."

Source: C. Virginia Fields, "Report and Recommendations on the Execution of No-Knock Warrants: In the Aftermath of the Death of Alberta Spruill," Office of Manhattan Borough, June 2003.

Raid Of The Day: Cat Urine And The Opera Singer

Radley Balko   |   March 26, 2013    9:27 AM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

On July 19, 1993, Brian and Elizabeth Davis, their infant, and their two-year-old son woke to the sound of armed, masked police officers from a narcotics task force breaking into their home.

The Davises had been involved in an ongoing dispute with neighbors. At some point, the neighbors suggested to police that the couple was manufacturing methamphetamine. As evidence, the neighbors noted a faint smell of cat urine coming from the Davis home, and pointed out that Brian Davis had "no visible means of support."

In fact, Davis was an opera singer. The raid turned up no drugs or evidence of any illegal activity. In a subsequent investigation, the Pennsylvania Attorney General's Office called the raid "unfortunate," but insisted that in sending armed, masked men to storm a family's house early in the morning -- based only on a tip from aggrieved neighbors -- the police had "acted properly."

The state settled with the Davises in 1996 for an undisclosed amount of money.

(Raid of the Day archive here.)

Sources: Dick Cowen, "Odors didn't lead to drugs," Allentown Morning Call, January 15, 1996; Dick Owen, "State settles lawsuit over city drug raid," Allentown Morning Call, January 15, 1996.

Raid Of The Day: Daniel Castillo, 17, Killed In A 2007 Early Morning Bust

Radley Balko   |   March 25, 2013   10:18 AM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

In February 2007, police in the small town of Wharton, Texas say an informant told them about drug sales going on in a home on Sunset Street. The police didn't bother to attempt to buy any drugs themselves, or send an informant to attempt a buy. Instead, one officer reported observing heavy traffic at the home, which was inhabited by 17-year-old Daniel Castillo, his parents, his brother, his sister, and his sister's one-year-old child.

On February 17, the police conducted an early morning raid. According to Ashley Castillo, Daniel's sister, she, her brother, and her child were sleeping when the police came in. She woke up, stunned, and screamed at the intruders, "Pleases don't shoot my baby!" Her cries woke up her brother Daniel, who rose from his bed to defend her. That's when Sgt. Don Falks shot Castillo in the face, killing him.

Falks -- who according to Castillo's family was known around Wharton as "The Terminator" -- told a different story. He said Castillo was awake when he entered the room, and lying in wait. When he entered, he said Castillo punched him in the fact, then reached for an object from his waistband that Falks believed to be a gun. (A small knife was found near Castillo's body.)

Days after the raid, Wharton County Sheriff Jess Howell noted that Sgt. Falks had been given counseling to deal with the trauma from the raid. No one offered the Castillo family similar counseling. The following month, a grand jury declined to indict Falks on any criminal charges.

Daniel Castillo had no criminal record. He had recently enlisted in the Army. The police later claimed to have found $5,000 worth of cocaine and marijuana and to have arrested an uncle of Castillo's during the raid. The Castillo family said the drugs were found in a car parked in the family driveway belonging to a boyfriend of one of Castillo's sisters, and that he -- not an uncle -- was the one arrested. Castillo's 14-year-old brother was also arrested after demanding to see a search warrant. He was later released with no charges.

Of course, even if we assume everything about the police account to be true -- that someone was dealing drugs from the Castillo home, and that Daniel Castillo came at Sgt. Falks with a knife -- the incident illustrates the perils of forced-entry drug raids. It seems unlikely that Castillo, given his background and plans for the future -- would have knowingly attacked a heavily armed, heavily armored police officer with a knife. It seems far more likely that he thought Falks was a criminal intruder who had broken into his bedroom, and was protecting his sister and her child.

Castillo's aunt later wrote of the incident:

The entire family is afraid that people are going to see this as "oh well, just one less young hispanic male for us to deal with." They've got the wrong family this time. They will not come into our homes and kill our children and then move on with their lives. As long as we have no justice, we will always be there to remind them that an innocent young life was taken. They didn't even give him a chance to be tried and convicted of anything. That lone cop was the judge, jury and executioner. They shot him as he stood next to his sister who was holding her 1 year old baby. They hauled his mother away in handcuffs as she struggled to get to her son. They refused to even let her contact his father at work to let him know that his son had been shot. His 14 year old brother got reasonably upset and demanded to see the warrant. They arrested him for "interfering with a police investigation" and hauled him off to juvie. To this day, the only reason they even got a hint of what was in the warrant was because the media was able to get it before them.

When word spread that Danny had been shot, the police blocked off the ER at the local hospital and kept everyone out. (Its a very small town and word spreads fast.) . . .

The family just wants to know why. Why did they do this? Was it an accident? Was he spooked by something? Just give us some sort of reason. Its all so senseless. Junior is dead. He will never graduate high school, he will never get married or have children. All beacsue some informant told them that a "David Castillo" was dealing drugs out of the house and the police believed him. Had anyone ever just gone to the house and knocked on the door, they would have discovered that there was NO David Castillo at that residence. There was a mother, father, their children and two grandchildren. Why didn't someone do that? WHY?

The Castillo family's federal lawsuit was settled in 2009. The terms of the settlement are bound by a confidentiality agreement. As of January, Falk was still with the Wharton Police Department.

Raid Of The Day: Rusty Windle

Radley Balko   |   March 22, 2013    1:39 PM ET

In the spring of 1999, a 46-year-old ex-con named Roy Parrish befriended 25-year-old electrician Rusty Windle at a blue collar bar in the town of Wimberley, Texas. After a few conversations, Parrish talked Windle into trying to find him some pot. Windle was no drug dealer. It took him six days to find his new friend some marijuana. When the ex-con asked Windle again, he could only find a few grams and, embarrassed, sheepishly refused to take any money for it.

Parrish was a paid drug informant. At the time he working for the Hays County, Texas Narcotics Task Force. Windle was also a gun collector, so Parrish attempted to bait him into making a silencer for him, which is a federal crime. Windle was reluctant, but finally gave Parrish a metal tube, some washers, and instructions on how he make one himself. Parrish turned it all over to the ATF.

Word had also been getting in the town about the parties Parrish would throw, which flowed with booze (and, allegedly, plenty of minors), and inevitably involved him asking people to score him some drugs. One acquaintance (and friend of Windle's) told Texas Observer reporter Nate Blakeslee, "He asked everybody to get him pot, he practically begged you for it."

As for Windle, friends told Blakeslee he had moved to Wimberley at teh age of 18 to get a fresh start after a rough childhood in Florida. Until he met Parrish, he was doing pretty well. Windle had “developed a reputation as a quiet, extremely dependable, even-tempered, and likable man,” Blakeslee reports. He wasn't dealing drugs so much as reluctantly doing a favor for someone he thought was a friend.

Once Parrish had persuaded Windle to get him enough pot for Windle to be charged with a felony, the task force struck. On May 17, 1999, they descended on Windle's home for a pre-dawn raid. Windle awoke to a disturbance in front of his home, and answered the door holding a rifle. Police say that when they heard the slide action of a rifle bolt, Officer Chase Strapp backed away from the door. Seeing armed men dressed in black approaching his house, and watching one of them then retreat from his porch, Windle pointed his weapon at Strapp. Strapp fired four rounds from his semiautomatic weapon, hitting Windle three times, killing him in his own doorway.

Police later discovered that Windle's weapon was unloaded, and the safety mechanism was still activated. They found less than an ounce of marijuana in his home. Though some officers claimed they announced themselves outside of Windle's home, he wasn't the only one raided that morning based on Parrish's informant work that morning. Others who were claimed the police never announced themselves before executing those warrants. One of those raided was targeted for selling Parrish half a bottle of Vicodin for $30 after Parrish had attempted to buy prescription drugs from the same man's 72-year-old mother.

Windle left behind a 7-year-old son, Christopher. After Windle was cremated, his mother took his ashes back to Florida, where Christopher helped spread them near where Windle grew up.


(The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.)

Source: Nate Blakeslee, "Drug Warriors; Zero Tolerance Takes Toll in Hays County," Texas Observer, October 29, 1999.

Five Star Fridays: Tom House Invokes Chinua Achebe

Radley Balko   |   March 22, 2013    9:15 AM ET

The Nigerian novelist, poet, and political activist Chinua Achebe has died. A few years ago, Nashville's Tom House played a few songs at my place. One of them, called "Nothing at the Core," was inspired by Achebe's most well-known book, Things Fall Apart.

You can read my interview with House here. Also, I'll be posting a new "Songs From My Couch" installment next week, this time with singer-songwriter Matthew Perryman Jones.

Raid Of The Day: Cheryl Ann Stillwell, Killed In A Drug Raid Over Two OxyContin Pills

Radley Balko   |   March 21, 2013   12:06 PM ET

Cheryl Ann Stillwell, a 41-year-old computer engineer, was concerned about the drug activity around her home on Florida's Amelia Island. According to friends and family, she had repeatedly asked police to do something about the problem, including offering them the use of two other houses she owned in the neighborhood.

Stillwell was reclusive, perhaps even paranoid. She kept a gun in the home, and had on a prior occasion pointed it at a cable installer she thought was an intruder. She often moved her couch up against the door to keep out criminals, and had installed a video camera outside her front door. But Cheryl Ann Stillwell died at the hands of the police, not the drug dealers she feared.

Stillwell suffered chronic pain from a work-related accident, and a doctor had prescribed her OxyContin to treat it. In December 2005, police say a confidential informant reported buying two Oxycontin pills from an “unknown white female” at a house whose description matched Stillwell's cottage. Stillwell's brother told the Florida Times-Union that she had given the two pills to an acquaintance who later got into trouble with the police. At 5:30 am on December 22, a Nassau County SWAT team and a few federal agents raided Stillwell's home, one of three raids they conducted that morning. Neither Stillwell's name nor the house's address was listed on the warrant. The police had no idea whom they were raiding.

The police initially said Stillwell fired at them, at which point they opened fire. Later, after post-mortem forensics determined that Stillwell had actually fired her weapon only after she was shot, the police story changed. Officer Dallas Palecek, they said, fired only after seeing Stillwell's finger "twitch" on the gun's trigger. A report by Florida Assistant State Attorney Granville Burgess later questioned how that was possible, given that Palecek was a good distance away from Stillwell and it was dark at the time.

Burgess also criticized the heavy-handed tactics. “As far as this team knew they were executing a search warrant on a single white female with no violent history who had sold one time a minor amount of drugs. If they had had background information I'm sure they would have approached it differently.” An FBI report raised the same questions. Yet both reports, along with a report from the Florida Department of Law Enforcement, ultimately cleared Palecek of any wrongdoing.

While possibly negligent, it seems right that Palecek was cleared of criminal conduct. This tragedy, like those before it, was a question of tactics. Unfortunately, Stillwell's death didn't move the police department to change their tactics, either. In an interview with the Times-Union five months after the raid, Nassau County Sheriff Tommy Seagraves said that all search warrants in the county were still served by the SWAT team.

(The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.)

Sources: David Hunt, “For a family, drug raid went terribly wrong,” Florida Times-Union, November 5, 2006; Kevin Turner, “FDLE clears officer in shooting,” Florida Times-Union, April 29, 2006.

Raid Of The Day: "Operation Ready-Rock"

Radley Balko   |   March 20, 2013    1:01 PM ET

As the drug war escalated in the late 1980s and early 1990s with the crack epidemic, police in some cities began raiding entire neighborhoods. The raids were authorized by constitutionally-suspect search warrants giving them permission to raid multiple residences at once. One example came in November 1990, when 45 police officers dressed in camouflage and black hoods raided an entire block of homes in North Carolina. They were from the Chapel Hill and Carrboro police departments, the Orange County Sheriff's Department, and the North Carolina State Bureau of Investigation. The raids, part of an investigation dubbed "Operation Ready-Rock," went on for four hours. According to the subsequent lawsuit, everyone raided and apprehended was black. The astonishing search warrant affidavit condemned an entire street of people. The officer asserted, "[W]e believe there are no 'innocent' people at this place . . . Only drug sellers and drug buyers are on the described premises."

Journalist Christian Parenti describes what happened next.

The assault force--dressed in combat boots, green camo' battle dress uniforms, body armor, hoods, masks, goggles, and kevlar helmets--armed itself with the usual array of "tactical" gadgetry: less-than-lethal "blunt trauma impact ordnances," chemical sprays, and [Heckler & Koch] MP-5s, MP-54s and Colt AR-15s. For maximum results, the the operation was launched on a Friday night with teams of officers storming the block from all directions, cutting off every path of escape and then combing the area with drug-sniffing dogs. Even amidst the military frenzy the courtesy of the old South prevailed: whites were allowed to leave the area, while more than a hundred African-Americans were searched. The warrant also included the search of a pool hall called the Village Connection. In typically "proactive" fashion SWAT commandos made a "dynamic entrance," smashing in the front door and forcing the occupants to the floor at gunpoint. While the captives were searched and interrogated, the bar was ransacked for contraband. The commotion left one elderly man trembling on the floor in a pool of his own urine.


Despite the affiant's statements, the raids netted just 13 arrests. Meanwhile, three dozen of the citizens who were raided but not arrested brought lawsuits alleging civil rights violations. In 1993, Orange County Superior Court Judge Knox Jenkins berated the raiding officers in a three-page statement that he read in front of a crowded courtroom. In 1996 the city and county governments settled for $200,000.

Just a year after the settlement, the same four police agencies sent 37 officers to raid the same area of the county. The Village Connection pool hall had shut down, so young people were congregating on nearby Broad Street In Carrboro. That led to neighbor complaints of noise, drinking, and drug use. So backed by a National Guard helicopter circling over head, police raided a house they claimed was being used for drug distribution. This time, a crowd gathered near the raid site to jeer the police officers. The police found no drugs in the home.

(The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.)

Sources: Christian Parenti, Lockdown America, Verso (2000), pp. 124-125; "Cops Survive Lawsuit, Get Judge's Reprimand," Associated Press, May 26, 1993; Joyce Clark, "Suit over drug raid settled for $ 200,000," Raleigh News and Observer, February 22, 1996; Beth Velliquette, "Failed raid draws jeers from crowd; Helicopter part of operation to clear street," Chapel Hill Herald, August 13, 1997.

Ugly Facebook Post From The Police Union In Columbia, Missouri

Radley Balko   |   March 19, 2013    1:29 PM ET

UPDATE: 3:50 p.m. -- A spokesperson from the Columbia Police Officers' Association wrote to say that the post was satire, rather than a suggestion. The spokesperson also noted that the organization is not formally a union.

The post in question has since been removed from the organization's Facebook page.

Previously:
The police department in Columbia, Missouri -- the same department responsible for a drug raid video that went viral a couple years ago -- wants to get a new armored vehicle. The town's police union, which has been fighting the local police chief over his efforts to hold cops accountable for abusive behavior, apparently approves of the idea.

This was taken from the group's Facebook page. As of 1:30 ET, it was still there.

Charming, fellas.

Raid Of The Day: The Hay Family

Radley Balko   |   March 19, 2013   10:10 AM ET

At about 6 am on the morning of March 8, 1985, 60 law enforcement officers staged a raid on the Point Arena, California ranch owned by Bill Hay and his wife Karen. Point Arena is in Mendocino County, due south of Humboldt County. The two counties, along with Trinity County, make up the "emerald triangle," the rugged, heavily-forested part of northern California that state and federal anti-drug agencies and the state's National Guard had been targeting through the Campaign Against Marijuana Planting, or CAMP.

When Hay answered the loud knock at the door, he told a local paper, a federal agent "threw some papers in my face . . . while he held a gun up nose." Hay's wife and son Robert were already awake, and also held at gunpoint. His son Richard was rousted from sleep with a gun pressed to his temple. Within minutes dozens of camouflage-clad narcotics cops from at least seven local, state, and federal police agencies fanned out over the Hays' 11,000 acre farm. The raid included 14 vehicles, two ambulances, two aircraft, and a "lunch wagon" -- in case the raiding cops worked up an appetite.

The raid was based on a tip from a confidential informant, who told police that the Hay ranch was the site of a massive underground drug warehouse, where they'd find stacks of marijuana bales and crates of cocaine, all packaged and ready for sale. After six hours of searching, they found nothing of the kind. The agent in charge then ordered a search of the Hay house. The drug cops ransacked the place, rifling through drawers and cabinets, apparently in the hope that Bill Hay was hiding an enormous drug storage facility in his sock drawer. They finally brought in drug dogs to sniff every inch of the Hay household. They found no contraband.

In all, the Hays were held at gunpoint for eight hours, during which they were not permitted to talk, eat or drink, change out of their bedclothes, or use the toilet. The Hays said several SWAT members mocked them as they ate lunch in front of them, and at one point, began simulating intercourse with a plastic deer lawn ornament on the family's front lawn. The warrant allowed the team to look not just for drugs, but for "paraphernalia" used to harvest and package illegal drugs. At one point, a narcotics officer demanded to know why Hay was in possession of a large supply of baling wire. Hay pointed out that he kept a thousand head of cattle, 900 sheep, and had a baler in the barn. He then pointed to his huge of supply of hay, stacked in bales.

Finally, the police flew their informant to the Hay ranch, where he told them they had raided the wrong property. The Hays would later learn that the informant -- described on the warrant as trustworthy and reliable -- had previously told police the ranch was in Sonoma County.

Three years later, the Hay family filed a law suit in state court. Judge John Golden ruled the trial that the search warrant was invalid. The jury found for the Hay family, and awarded them $8 million in damages. Some jurors wept. After the trial, jurors chipped in to buy roses for Karen Hay. The Ukiah Daily Journal reported that juror Hans Zwetshoot said the Hays' account of the raid reminded him of the stories his father told him about life in Nazi-occupied Holland.

Meanwhile, California Deputy State Attorney General Paul Hammerness called Judge Golden a "villain" for his ruling on the search warrant, and said the monetary award wasn't justified. When asked why it wasn't justified, he replied that "the Hays really weren't damaged."


(The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.)

Sources: Peter Page, "Jury to state: Pay Hay family $8 million for mistaken raid," Ukiah Daily Journal, February 12, 1988; Peter Page, "Raid left ranch family cynical and depressed, doctor says," Ukiah Daily Journal, February 3, 1988; Peter Page, "Drug agents raid wrong ranch," Ukiah Daily Journal, March 10, 1985; "Family in raid wins $8 million," Associated Press, February 13, 1988.

Sunday Evening Dog Blogging

Radley Balko   |   March 17, 2013    6:28 PM ET

Had some requests for Sunday evening dog blogging this week. Here are a couple shots of the pup I took last week.

daisy1



dais2

Obama, Civil Liberties, And The Presidency: An Interview With Gene Healy

Radley Balko   |   March 15, 2013    3:15 PM ET

Gene Healy has been one of the more prominent and consistent critics of presidential power going back to the Clinton administration. (Disclosure: Healy is a friend and a former colleague.) In 2000 Healy, vice president of the libertarian Cato Institute, authored the study "Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years." In 2006, Healy and fellow Cato scholar Tim Lynch set their sights on President Bush with Power Surge: The Constitutional Record of George W. Bush.

In 2008, Healy took a broader, more historical look at at the issue with his book The Cult of the Presidency: America’s Dangerous Devotion to Executive Power. The book looked at the evolution of the office of president from George Washington through George W. Bush, and was praised across the ideological spectrum, including from Ezra Klein and George Will at the Washington Post, the Economist, and Glenn Greenwald at The Guardian. Healy has now published an ebook update to the book, False Idol: Barack Obama and the Continuing Cult of the Presidency.

I asked Healy a few questions about the update to his book over email.


Let's start with the fun question: In terms of civil liberties, who was the worst American president in U.S. history?

I’m going to go with Woodrow Wilson: the pointless carnage of WWI, conscription, Espionage Act prosecutions on a scale much greater than the Alien and Sedition Acts, military surveillance, racial segregation of federal employees, and the Palmer Raids. Wilson wasn’t just a monstrous president in terms of civil liberties he was an absolutely pivotal figure in the presidency’s transformation from a limited “chief magistrate” to an extraconstitutional monstrosity that promises everything and guarantees nothing, except public frustration and the steady growth of federal power.

Are there any notable common elements among the presidents who have been predictably bad at respecting civil liberties -- political ideology, a friendly Congress, etc?


I don’t see political ideology as an essential factor. The imperial presidency is a bipartisan monstrosity, birthed by progressives, brought to maturity by conservative “unitarians.”

But yes, a compliant Congress is often a factor. For one thing, presidents feel freer to use force abroad under unified government, and as William G. Howell and Jon C. Pevehouse have shown "the White House's propensity to exercise military force steadily declines as members of the opposition party pick up seats in Congress." Divided government also results in more vigorous policing of the incumbent administration's conduct, including many more congressional oversight hearings.

Have presidents who serve in wartime been unusually bad for civil liberties?

Without a doubt. There’s a reason presidents continually repair to militaristic framing of their policies -- War on Drugs, War on Terror -- war is a powerful argument for unified command and suspension of constitutional niceties.

A notable exception to the rule was James Madison, who, Ritika Singh and Benjamin Wittes note, “eschewed the authority to detain American citizens in military custody or try them in military tribunals, and more generally, declined to undertake the sorts of executive overreaches we have come to expect -- and even encourage -- from our presidents in war.” As Justice Scalia observed in his Hamdi dissent, Madison apparently believed American citizens were entitled to damages for false imprisonment if they were summarily locked up as “enemy combatants.” I think that’s fairly powerful evidence of the original understanding of civil liberties in wartime.

Have any presidents been a net good for civil liberties? If not, can you think of any who were less awful than the others?

Well, despite Lincoln’s manifold abuses of civil liberties, you’ve certainly got to weigh emancipation heavily in his favor. (See Jeffrey Rogers Hummel on Lincoln’s complicated legacy).

It usually goes unrecognized, but Warren Harding, the Rodney Dangerfield of U.S. presidents, and his taciturn successor, Calvin Coolidge, both had decent civil-liberties legacies.

As I wrote in my first book:

Harding's good nature and liberal instincts led him to overrule his political advisers and pardon 25 nonviolent protesters that Wilson had locked up, including Eugene Debs. "I want him to eat his Christmas dinner with his wife," Harding said. History remembers Harding's successor, Calvin Coolidge, mostly for his reticence and for fiscal policies that combined Yankee parsimony with generous tax cuts. Less well known is Coolidge's admirable record on civil liberties. Coolidge ordered the release of Wilson's remaining political prisoners, and his attorney general, Harlan Fiske Stone, put an end to political surveillance by the Federal Bureau of Investigation, abolishing the FBI's General Intelligence Division. "The Bureau of Investigation," Stone declared, "is not concerned with political or other opinions of individuals. It is concerned only with their conduct and then only with such conduct as is forbidden by the laws of the United States. When a police system passes beyond these limits, it is dangerous to the proper administration of justice and to human liberty."

Alas, Coolidge also inadvertently set the seeds for undoing that policy when he promoted the young J. Edgar Hoover. Personnel is policy, like they say.

You've made the point that historians tend to rate some of the worst violators of civil liberties among the greatest presidents. Can you explain why you think that is?

The scholars who fill out the scorecards in the perennial presidential rankings game definitely exhibit perverse values. Why is Wilson routinely a Top Ten favorite, while Harding’s nearly always dead last? Sure, Teapot Dome -- but are kickbacks for oil leases really worse than 117,000 dead doughboys?

I don’t think the rankers are awarding extra credit for civil liberties violations. I don’t think, for example, that Japanese internment helped FDR get a top five ranking. But it seems pretty clear that the graders hate normalcy. Presidents who simply preside over peace and prosperity are boring, and court historians seem to prize excitement above all else.

I’ve long suspected that participants in these surveys are unconsciously rewarding crusading presidents who get us into wars -- and, as discussed, wartime usually brings a crackdown on domestic liberties.

Last year, economists David Henderson and Zachary Gouchenour released a study, "War and Presidential Greatness," that provides empirical support for my simmering suspicion about a “combat bonus” in the presidential rankings.

Henderson and Gouchenour’s study is a sober, scholarly paper that comes to an absolutely horrifying conclusion: "military deaths as a percentage of population is a major determinant of greatness in the eyes of historians." They found “a strong positive correlation between the number of Americans killed during a president's time in office and the president's rating."

How much culpability does Congress have in the erosion of civil liberties? The Supreme Court?

Congress deserves a great deal of blame. On paper, it really is the “most dangerous branch.” Its formal powers are so great it could not only rein in all executive abuses, it could even, as the constitutional scholar Charles Black once commented, “shrink the White House staff to one secretary, and… with a two-thirds vote… put the White House up at auction.” (I sometimes find myself wishing it would.)

The Court certainly hasn’t lived up to its appointed role as “bulwark of our liberties,” but in the end, it can’t save us from ourselves.

Let's turn to Obama. Many progressives and libertarians have been disappointed with his civil liberties record after four years. Where do you think he ranks among recent presidents? Among all presidents?

Among recent presidents? On civil liberties, the differences with Bush are negligible. There’s been “a powerful continuity” between “43” and “44” says Gen. Michael Hayden, who as 43’s NSA head ran the Bush administration’s illegal wiretapping program.

The New Republic’s legal affairs editor, Jeffrey Rosen, predicted in early 2008 that, if elected, Obama would be “our first civil libertarian president.” No such luck. As I point out in my new ebook:

In several key areas, “44” has gone even further than “43” in pushing extravagant claims of executive power. George W. Bush never publicly asserted a presidential right to summarily execute American citizens abroad, far from any battlefield. President Obama both claims that authority and has exercised it: in the September 2011 Predator strike on New Mexico-born Anwar al-Awlaki.

As General Hayden put it last year: “We needed a court order to eavesdrop on [Awlaki], but we didn’t need a court order to kill him. Isn’t that something?” I’d say so.

As far as where Obama fits in among all presidents in American history, I wouldn’t hazard a guess while we’re this close to the action. I don’t have the same confidence in my judgment this early that the presidential scholars who participated in the 2010 Siena Research Institute survey seem to have. Just 18 months into his first term, they decided Barack Obama’s already the 15th best president we’ve ever had.

But one of Obama’s main legacies has been ratifying George W. Bush’s legacy of permanent war and permanently enhanced federal power.

Why do you think he has abandoned many of the civil liberties positions he took during his first campaign?

In fact, Obama started “growing in office” before he even got in office. In the summer of 2008, as the election loomed, Senator Obama broke his campaign promise to filibuster “any bill that includes retroactive immunity for telecommunications companies” that had broken the law by assisting President Bush’s warrantless wiretapping efforts. Since then, among other things, he’s reauthorized the PATRIOT Act with the presidential autopen.

The surest explanation for why presidents behave the way they do is the “Pogo Principle”: we have met the enemy and he is us.

From False Idol (again, with the self-quoting!):

What Americans demand from the presidency shapes the president’s incentives, and those incentives play a far larger role in executive power’s growth than any given president’s character flaws. The “God of All Things” is, as we’ve seen, responsible for securing the warranties on American cars and for getting us a lower rate on our mortgages. So of course he’s also the guardian of our safety, responsible for shielding us from any possible terrorist attack. “It’s 3 a.m., and your children are safe and asleep,” the famous 2008 Hillary Clinton campaign ad declared, over images of helpless babes, “but there’s a phone in the White House, and it’s ringing.” It’s a “dangerous world,” the narrator insisted. “Who do you want answering the phone?”

The facts are: (1) the terrorist threat is anything but existential; and (2) there’s not much the president can do in an open society of 313 million people to provide seamless protection against any possible attack. We demand it anyway—and presidents know there’s a political price to be paid for failing to do the impossible. As Obama’s former national security adviser James L. Jones put it, “Who wants to be the guy that says we don’t need [these powers] anymore and then three weeks later something happens?


From your own research of past administrations, do you anticipate he'll get worse in the second term, or will the fact that he won't be running for reelection allow him to take firmer stands on some of these issues?

Hope springs eternal—as Jeff Rosen proved last March in another TNR piece entitled “The President Should Finally Fight for Civil Liberties." He admitted his “first civil libertarian president” prediction had bellyflopped, but wrote, “If Obama wins a second term, I hope reelection gives him the freedom to redeem that unfulfilled promise.”

But this is, again, the triumph of hope over experience. There’s no sign that “letting Obama be Obama” would result in a rollback of the National Surveillance State or the ever-expanding Game of Drones. In fact, in his most recent State of the Union, as Micah Zenko points out, the president seems to have expanded the definition of who can legally be eliminated via flying robot assassin.

It seems like once a president claims a new power that violates civil liberties, there's no going back--or at least there's no way to prevent future presidents from claiming the same powers. Is there any way to undo the damage on issues like indefinite detention, torture, assassinations, and so on? That is, are there any steps a civil liberties-minded president could take with a willing Congress to limit the power of future presidents in these areas?

We shouldn’t expect there to be a real “civil-liberties-minded president” in our future. I’ve been giving Jeff Rosen a hard time, but he wasn’t wrong -- Obama had the sort of background you rarely see in presidents: a seemingly high-minded, left-leaning former law professor with something of a pro-civil liberties record as a state senator. Still, nobody who does what it takes to grab the Ring is going to turn around and say, once in office, “you know what, now that I’ve arrived -- I’d like less power.”

Unless and until the public makes Congress demand it, there won’t be a rollback of the National Security/Surveillance State. We saw a halting, partial rollback in the ‘70s. We likely won’t see it again unless and until there’s a demand for a new Church Committee.

So most presidents have been pretty awful for civil liberties. Why do you think that is?

The answer has a lot to do with what I suggested in #8, above: It’s our fault. The American intelligentsia favors “transformative presidents” who upend the constitutional order in wartime. The ordinary voters like peace and prosperity better than the presidential rankers do, but they’re not overly exercised about vanishing liberties. A 2010 Washington Post-ABC News poll showed that almost two-thirds of Americans supported TSA’s adoption of full-body scanners. In 2012, Gallup reported that 54 percent of us think the agency’s doing a “good”-to-“excellent” job. Meanwhile, “Support for drone strikes against suspected terrorists stays high, dropping only somewhat when respondents are asked specifically about targeting American citizens living overseas.”

“If only the czar knew” was supposedly a common lamentation uttered by 19th-century Russian peasants facing the business end of the czarist state. Then, as now, a better lament might be, “If only the czar cared.” And yet, if we don’t care about lost liberties, why should he?

Raid Of The Day: Jose Colon

Radley Balko   |   March 12, 2013    3:27 PM ET

One night in April 2002, police in Bellport, New York were preparing for a heavily-armed raid that included a helicopter.

As four SWAT cops rushed across the front lawn toward the targeted house, 19-year-old Jose Colon emerged from the front door. According to the police account of the raid, as the officer rushed the door, one officer tripped over a tree root and fell forward into the lead officer, causing the lead officer's gun to accidentally discharge three times. One of the three bullets hits Colon in the side of the head, killing him.

The police said they screamed at Colon to "get down" as they approached, though two witnesses told a local newscast that, (a) their screams were inaudible over the sound of the helicopter, and (b) the officers appeared to be frozen before the shooting. That is, the witnesses didn't see any of the officers trip. One witness later recanted his story after speaking with police.

Colon, who didn't live at the house, was never suspected of buying or selling any illicit drugs. The police proceeded with a search of the house, and seized eight ounces of marijuana. A subsequent internal investigation found no criminal wrongdoing on the part of police.

Colon had no criminal record. He was two months away from becoming the first member of his family to graduate from college.


(The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.)

Sources: Samuel Bruchey, "Victim's girlfriend says shooting wasn't an accident," Newsday, April 26, 2002; Samuel Bruchey, "Cops' account disputed again," Newsday, April 27, 2002; Bruce Lambert, "No indictment in shooting of young man in Suffolk raid," New York Times, August 9, 2002.

Some Afternoon Links: Cops Caught Rummaging Without A Warrant, Mistaken ID Leads To Legal Nightmare, Photos From The Hermit Kingdom

Radley Balko   |   March 12, 2013    3:09 PM ET

Read More: the agitator

-- Photos from rural North Korea. It's like a ticket to the 19th century.

-- Obsolete words and phrases that need to come back.

-- But for video: Garland, Texas edition. These cops should be fired.

-- Sorry, paleo dieters. Hunter-gatherers had hardened arteries, too.

-- Thorough, provocative post from a defense attorney on police and lying under oath.

-- It's bad enough that this poor guy went through hell because of mistaken identity. That's just run-of-the-mill incompetence. What I don't get is why federal prosecutors saw fit to tack on federal charges after it was abundantly clear that the police had the wrong guy.

-- A long list of amusing captions and chyrons from local news.

-- A Salt Lake City detective who lied on a search warrant affidavit, causing a SWAT team to raid the wrong house, was disciplined with a 20-hour suspension. I guess that's better than nothing. But only by about 20 hours.