The Supreme Court must protect the First Amendment from Unions

(Published in The National Review Online, February 29, 2012)

By David B. Rivkin, Jr. and Andrew Grossman

Theresa Riffey provides help around the home for her brother, a quadriplegic, and receives a small stipend from Illinois’s Medicaid program for her efforts, saving the state the cost of providing full-time care. Illinois law requires her to pay a portion of her check every month to an affiliate of the Service Employees International Union (SEIU). The Supreme Court will soon decide whether to hear her case that asks on what basis, besides raw political power, a state may compel independent home-care workers and other similarly situated self-employed persons to support and associate with a labor union against their will. For the sake of workers’ First Amendment rights, it should take the case.

“Organized labor” brings to mind railroads, factories, and government offices, but the labor movement’s biggest recent gains have been in the home. Led by SEIU, unions and their political allies have pushed through executive orders and legislation in a dozen states to “organize” home-care workers, such as personal assistants and sitters, by deeming them state employees for collective-bargaining purposes alone.

California was the trailblazer in this campaign, with SEIU first trying to convince the state courts to designate Los Angeles County home-care workers as county employees. Having lost the battle in the courtroom, SEIU commenced lobbying the California legislature to pass a law requiring each county to establish special government entities that would serve as an employer of record for home-care workers. A statute was enacted in 1992, and, within a few years, SEIU began representing over 70,000 Los Angeles County home-care workers.

But it was Illinois, under Governor Rod Blagojevich, that provided the model that has been copied across the nation. By executive order, he instituted collective bargaining statewide for home aides for the disabled, even though these workers — often family members — are not hired, fired, or supervised by the State of Illinois, do not work in state facilities, and are not considered to be state employees for any other purpose, such as health benefits or liability. That order was later ratified in legislation.

The Illinois law has served as a roadmap for other states’ lawmakers to circumvent the First Amendment’s limitations on compelled association and speech and thereby bolster the ranks and finances of their union supporters. Indeed, there has always been a tension between the First Amendment, which protects all Americans’ rights to free association and to speak or remain silent, and labor laws that compel all workers subject to a collective-bargaining agreement to support financially a union’s advocacy on their behalf, even if they dissent from the union’s goals and message.

The consistent rationale for the union exception to First Amendment freedom is “labor peace,” a term that harkens back to the violent strikes and lock-outs of the 1930s. But laws such as California’s and Illinois’s turn this narrow exception into a license to compel speech and association in any instance. Is labor peace really at issue when there is no workplace, no employer property is at risk, and workers’ only relationship to their putative employer is payment for services rendered to a third party? If so, doctors and lawyers who are often paid by state governments for services rendered to indigent clients or, for that matter, any person who accepts a government benefit or payment — which is to say virtually everyone — could be forced to kick back a portion to organized labor to fund speech with which they disagree.

Moreover, union representation is a lousy deal for independent workers, who are forced to subsidize a union that is powerless to improve their conditions of employment. The benefits of these cynical laws flow solely to the unions and the politicians they support. So far, however, lower courts have given the states a pass on these points, reasoning that any asserted employment relationship — even an essentially fictional one — is sufficient to compel workers to associate with a union and pay for speech from which they dissent.

“First Amendment values are at serious risk,” Supreme Court Justice Anthony Kennedy has written, “if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors.” Only an “overriding” and legitimate purpose, he continued, “allows any compelled subsidy for speech in the first place.” Here, Governor Blagojevich and the Illinois legislature’s sole purpose was the height of illegitimacy: appropriating spoils for their strongest political backers.

The Supreme Court should take Ms. Riffey’s case. Unless it makes clear that compulsory support of unions is limited to circumstances where it is necessary to preserve labor peace, more workers, in more fields, will see their basic First Amendment rights trampled, without securing any benefits in the process. No American should, or could, be treated in this fashion.

— David B. Rivkin Jr., and Andrew M. Grossman are litigators specializing in constitutional law in the Washington, D.C., office of Baker & Hostetler LLP. David Rivkin served at the Department of Justice and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. They filed a brief on behalf of the non-profit Cato Institute in support of Ms. Riffey’s challenge.

Source: http://www.nationalreview.com/corner/292254/supreme-court-must-protect-first-amendment-unions-david-b-rivkin-jr

CIA interrogations have their day in court

(from The National Review, July 28, 2010)

Al-Qaeda terrorist Ahmed Ghailani provided a test case for CIA interrogations. The interrogations passed.

In February, we wrote in the Wall Street Journal about a classified brief filed in federal court in which the Obama Justice Department argued for the importance and efficacy of the CIA interrogation program. Now a federal judge has reviewed the evidence and agreed.

On Dec. 18, 2009, the U.S. attorney for the Southern District of New York, Preet Bharara, made the secret filing in response to a motion by Ahmed Ghailani, an al-Qaeda terrorist facing charges for his role in the U.S.-embassy bombings in Kenya and Tanzania in 1998. Ghailani argued that those charges should be dropped because lengthy CIA interrogations denied him his constitutional right to a speedy trial.

In his response, Bharara explained that “the defendant was . . . a rare find, and his then-recent interactions with top-level al-Qaeda terrorists made him a potentially rich source of information that was both urgent and crucial to our nation’s war efforts.” Bharara went on to say that “when the United States took custody of the defendant . . . and it justifiably believed that he had actionable intelligence that could be used to save lives, it reasonably opted to treat him initially as an intelligence asset.” And it turned out that “the defendant . . . did in fact have actionable intelligence about al Qaeda.” The “information supplied by the defendant had important real-world effects,” and he provided “crucial, real-time intelligence about senior al-Qaeda leaders and al-Qaeda plots.” Bharara concluded: “The results of the CIA’s efforts show that the defendant’s value as an intelligence source [was] not just speculative.” Thus, “the interest in national security plainly justified holding the defendant in this case as an enemy combatant [and] interrogating him . . . even if that meant delaying his criminal trial.”

Earlier this month, the federal judge presiding over the case, Lewis A. Kaplan, affirmed these conclusions by the Obama Justice Department. His ruling included a classified supplement describing Ghailani’s interrogation and the results it produced. But in his unclassified ruling, Judge Kaplan wrote: “Suffice it to say here that, on the record before the Court and as further explained in the Supplement, the CIA Program was effective in obtaining useful intelligence from Ghailani throughout his time in CIA custody.”

Kaplan went on: “The government has offered evidence that Ghailani continued to be of intelligence value throughout his time in CIA custody. Ghailani’s counsel have had access to extensive classified materials related to his interrogation, yet they have pointed to no evidence to the contrary. As discussed in the Supplement, the Court concludes that the government’s evidence is persuasive.”

He concluded: “The government has offered credible evidence indicating that the decision to place Ghailani in the CIA Program was made in the reasonable belief that he had valuable information essential to combating al-Qaeda and protecting national security. The same evidence shows that the government had reason to believe that this valuable intelligence could not have been obtained except by putting Ghailani into that program and that it could not successfully have done so and prosecuted him in federal court at the same time.” Therefore, “Two years of the delay [while Ghailani was held by the CIA] served compelling interests of national security.”

The judge also rejected “Ghailani’s claim that he was so affected psychologically by the alleged CIA mistreatment that his ability to assist in his defense has been impaired.” The court appointed a psychiatrist to examine Ghailani, and, “On the basis of the psychiatrist’s report and the entire record, including the evidence from the defense psychologist, the Court found that Ghailani suffers from no mental disease or defect, that he is capable of assisting in his defense, and that he is mentally competent. The Court is not persuaded that his mental state has been affected in any material degree by anything that took place while he was in CIA custody.”

The ruling was a major victory for the prosecution. And it was also a major vindication of the CIA interrogation program. The Obama Justice Department has now argued in federal court that the CIA program was necessary for our national security, that it was effective in producing actionable intelligence about al-Qaeda plots that could not have been obtained in any other way, and that it caused no damage to the terrorist’s mental state. A federal judge has reviewed the intelligence, heard the counterarguments of the terrorist who was interrogated, and agreed with the Obama administration that in the case of Ahmed Ghailani, the CIA interrogation program “served compelling interests of national security.”

– Marc A. Thiessen is a visiting fellow at the American Enterprise Institute, a weekly columnist for the Washington Post, and the author of Courting Disaster, just published by Regnery. David B. Rivkin Jr. is co-chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies, a contributing editor to National Review, and a partner in the Washington, D.C., office of Baker and Hostettler, LLP.

Source: http://www.nationalreview.com/articles/243554/cia-interrogations-have-br-their-day-court-marc-thiessen?page=1