1st Amendment Justice Delayed is Justice Denied for Col. Morris Davis

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Bg32jNgCYAApToACol. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.

And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.

Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:

In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.

The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.

Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:

Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.

Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)

Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.

Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:

Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.

The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.

That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:

The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)

So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a case that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).

As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.

A Remembrance of Judge John Roll

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200px-Chief_Judge_John_RollIt has now been three years to the day since Jared Lee Loughner went to the the Safeway Supermarket at Ina and Oracle Roads in Tucson where Congresswoman Gabby Giffords was holding her “Congress on the Corner” meeting for her constituents. The rest, as they say, is history. Tragic history. Giffords was grievously wounded, six lives taken and others seriously wounded.

One of the lives lost was that of the Chief Judge of the Arizona District, John Roll. This morning, I saw Andrew Cohen of CBS News tweet out a quick remembrance of Judge Roll, with links to two articles Andrew wrote back in 2011 on him and his loss. The articles are here and here, and are excellent, please click through and read them. The point in the second article regarding the dangers our federal judiciary face is especially salient.

I too might have have tweeted or reposted an old post I had done on Judge Roll, but I did not really do one. I knew John Roll, and at one time long ago, well before she was a Congresswoman, knew Gabby Giffords. I also lived, for a little over a year in graduate school, in the Catalina Footlills not that far from Ina and Oracle, and knew the Safeway store where it all happened as well. The wounds, and the longer term scars, from the January 8, 2011 shooting were too real for me back then. I mostly funneled whatever insight and thoughts I had to other, more traditional reporters, and others, covering the shootings and the legal proceedings as to Loughner. In fact, it took me three weeks to even complete the post I was writing that Saturday morning the moment the news of the shooting started coming in on the television. The only real substantive post I recall writing was on the way the federal government bigfooted the state authorities, to wit Pima County Attorney Barb LaWall, as to the prosecution of Jared Loughner.

So, after seeing Andrew Cohen’s remembrance, and with a little prodding from Andrew, I’d like to give my own brief honor to Judge John Roll.

As I said above, I knew John, and he was one of the finest men, not to mention judges, I have ever met. Kind, generous, helpful and compassionate. Tough as a judge, but fair, and extremely smart. Just a good man and great judge. The very kind of traits that led him to drop by Gabby’s local Congress on the Corner event three years ago today. Roll had been in downtown Tucson at Saturday Mass, knew of Gabby’s event and decided to stop in on the way home and say hi.

I knew Judge Roll almost exclusively professionally, although I did talk to him at a few social occasions over the years too. I first came in contact with him in the late 1980’s when, as a relatively new and wet behind the ears criminal trial attorney, I had a felony trial case down in Tucson that went sideways. The emergency remedy here in such circumstances is an extraordinary writ proceeding, known as a “special action”. They are hurried affairs, and back then were referred to a single “hot judge”, who was basically the on call jurist for the week for special actions. I, by sheer luck, got John Roll.

52ac00b293652.imageI was out of my normal home in the Phoenix area, and in the jurisdiction of a completely different division of the Court of Appeals, Division Two in Tucson. A lesser judge could likely have chewed me up and spit me out because I was unfamiliar with that division’s nuances, and I had a couple of technical pleading errors. Instead, I ran into the most gracious, helpful and understanding of men and jurists. John Roll made such an impression that I went out of my way to stop in and chat with him any time I was down in Tucson, whether in the Court of Appeals, or later in Federal District Court after he was nominated and confirmed in the last portion of George H.W. Bush’s term in office.

Looking back, it was really quite remarkable; you just do not get that kind of interaction, and gain that kind of relationship, with judges very much any more. But that is precisely the kind of guy John Roll was.

The death of John Roll cost Arizona not only a great man, but the District its chief judge. Despite the “emergency status” Arizona was already under at the time of his death, only now is the Obama White House getting the District of Arizona close to fully staffed with judges. But time marches on, and it will here, but let Judge John Roll not be forgotten.

A more physical remembrance is embodied in the John M. Roll United States Courthouse, a satellite courthouse for the Southern Division of Arizona’s Federal Court District located in Yuma, Arizona. The facility had been planned under John’s leadership of the District, but was completed and named for him after his death. The John M. Roll United States Courthouse opened for business on Monday December 16, 2013.

Rest in peace John Roll.

The Disturbingly Hollow Message of the Alan Turing Pardon

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Famed World War II code breaker, and computer pioneer, Alan Turing has been pardoned by the British government. From the New York Times story:

Nearly 60 years after his death, Alan Turing, the British mathematician regarded as one of the central figures in the development of the computer, received a formal pardon from Queen Elizabeth II on Monday for his conviction in 1952 on charges of homosexuality, at the time a criminal offense in Britain.
….
The British prime minister, David Cameron, said in a statement: “His action saved countless lives. He also left a remarkable national legacy through his substantial scientific achievements, often being referred to as the ‘father of modern computing.’ ”

Mr. Turing committed suicide in 1954, two years after his conviction on charges of gross indecency.
….
When Mr. Turing was convicted in 1952, he was sentenced — as an alternative to prison — to chemical castration by a series of injections of female hormones. He also lost his security clearance because of the conviction. He committed suicide by eating an apple believed to have been laced with cyanide.

That is about as nice, concise and antiseptic a take as can be had on the matter. The truth, and scathing comment on society therein, is quite a bit darker and uglier.

As Alice Bell put it in the Guardian:

That Turing’s work helped win the war, and that it has had such a large social and economic impact beyond that, makes his treatment by the state especially embarrassing. But his life and his homosexuality are no more meaningful just because he was a genius we (perhaps despite ourselves) managed to benefit from. To use his work in computer science as a basis for this pardon seems to trivialise both the huge contribution of that work and, perhaps more importantly, the history of gay rights.

Right. But it is even darker than the common story of privilege and celebrity gaining advantage. That the pardon came nearly sixty years after Turing’s death in forced shame (whether by suicide or not), makes the pardon act almost sad and meaningless. It does nothing for Turing, at this point it is mostly a cute and happy Christmas feel good move for the British throne and government. The hollowness of the move at this point saps much of the joy.

The criminal charge Turing was convicted of was section 11 of the Criminal Law Amendment Act 1885. Turing was hardly an isolated case; we hear now about him only because of his celebrity. As David Allen Green relates, there were a LOT of others:

In practice, if the police obtained sufficient evidence they would normally prosecute, and the courts would then usually convict. In all there were an estimated 75,000 convictions under section 11 (and its successor offence in the Sexual Offences Act 1956). One of these convictions was of Oscar Wilde, who was sentenced in 1895 to two years’ hard labour (the “severest sentence that the law allows” remarked the judge). But, perhaps counter-intuitively, most of these prosecutions did not happen in the days of Victorian prudery, but in the two to three decades after 1931.

One of these prosecutions was to be of Turing.

And the pardon was not just meaningless to Turing because he was dead the date, lo some 59 years later, when it was issued, it was meaningless too because if Turing were still alive, the equivalent would had already been available by act of law. As David Allen Green further relates:

A recent statute – the Protection of Freedoms Act 2012 – provides a scheme where those who had been convicted of the section 11 offence (and similar offences) can apply for their entire criminal records to be removed if the facts of the case would no longer count as a crime. It would be as if the offence had not been committed at all. These are not pardons – they go much further: the 2012 scheme removes the taint of criminality altogether, and with no fussing about not affecting the conviction or the sentence.

But the 2012 scheme is only for those still alive.

Lastly, Green goes back to the “why only Turing” bit that ought to gnaw at all who celebrate the pardon today:

Turing’s conviction was just one of about 75,000 under a vindictive law. But here is no logical reason why his should be regarded as a unique case. The actual wrong done to Turing was also one done to many thousands of men, and so any righting of that wrong must apply to those men too.

If Alan Turing is to be pardoned then so should all men convicted under section 11 if the facts of their cases would not be a crime today. But a better posthumous gesture would be to simply extend the 2012 scheme to all those who are now dead. Removing the criminal records completely of all those prosecuted who would not be prosecuted today on the same facts would be a better legislative gesture than a single statutory pardon, if there is to be a legislative gesture at all.

Precisely. If you want to honor Turing, make right not just by him, but all those similarly situated. And there are a lot of such men in history. This supposedly benevolent act of the Queen and British government rings hollow and self serving, there is much more than one heroic man to atone for.

Lastly, I urge a full read of David Allen Green’s piece in the New Statesman. It is long and detailed, but truly tells the full tale that ought be told regarding the atrocious history of Alan Turing’s offense, conviction then, and disturbingly hollow pardon now. And, the beauty of it is, Green penned his piece over six months ago, long before today’s pardon came down.

50 Years: That Day, JFK and Today

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UnknownWhere were you fifty years ago today? If you were old enough to remember at all, then you undoubtedly remember where you were on Friday November 22, 1963 at 12:30 pm central standard time.

I was at a desk, two from the rear, in the left most row, in Mrs. Hollingshead’s first grade class. Each kid had their own desk, and they were big, made out of solid wood and heavy. They had to be heavy, of course, because they were going to protect us when we ducked and covered from a Soviet nuclear strike. There were, as there were in most elementary school classrooms of the day, a large clock and a big speaker on the wall up above the teacher’s desk.

I can’t remember what subject we were working on, but the principal’s voice suddenly came over the loudspeaker. This alone meant there was something important up, because that only usually occurred for morning announcements at the start of the school day and for special occasions. The voice of Mr. Flake, the principal, was somber, halting and different; perhaps detached is the word. There was a prelude to the effect that this was a serious moment and that the teachers should make sure that all students were at their desks and that all, both young and old, were to pay attention.

There had occurred a tragic and shocking event that we all needed to know about. Our attention was required.

Then the hammer fell and our little world literally caved in.

President John Fitzgerald Kennedy had been assassinated. Shot and killed in Dallas Texas. Then without a moment’s pause, we were told that the nation was safe, Vice-President Johnson was in charge, the government was functioning and that we need not have any concerns about our own safety. We were not at war.

Twenty four some odd little hearts stopped, plus one from Mrs. Hollingshead. You could literally feel the life being sucked out of the room like air lost to a vacuum. Many of us began looking out the window, because no matter what Mr. Flake said, if our President was dead, we were at war and the warheads were coming. They had to be in the sky. They were going to be there.

Unlike the hokey color coded terror alerts, ginned up fear mongering of Bush/Cheney, Ashcroft and Ridge, and today the terroristic fearmongering of Keith Alexander, James Clapper, Mike Rogers and Dianne Feinstein, things were dead nuts serious at the height of the cold war. If President Kennedy had been killed, we were at war; the missiles were on their way. Had to be. Looking back, the school officials and teachers had to have been as devastated and afraid as we were, yet they were remarkable. They kept themselves in one piece, held us together, talked and comforted us into calm.

We had not been back in class from lunch break for long; it was still early afternoon in the west. Before the announcement was made, the decision by the school officials had been made to send us home. The busses would be lined up and ready to go in twenty minutes. Until then there would be a brief quiet period and then the teachers would talk to us and further calm the situation. Then off we would go to try to forge a path with our families, who would need us as much as we Read more →

Lavabit and The Definition of US Government Hubris

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Graphic by Darth

Graphic by Darth

Well, you know, if you do not WANT the United States Government sniffing in your and your family’s underwear, it is YOUR fault. Silly American citizens with your outdated stupid piece of paper you call the Constitution.

Really, get out if you are a citizen, or an American communication provider, that actually respects American citizen’s rights. These trivialities the American ethos was founded on are “no longer operative” in the minds of the surveillance officers who claim to live to protect us.

Do not even think about trying to protect your private communications with something so anti-American as privacy enabling encryption like Lavabit which only weakly, at best, even deigned to supply.

Any encryption that is capable of protecting an American citizen’s private communication (or even participating in the TOR network) is essentially inherently criminal and cause for potentially being designated a “selector“, if not target, of any number of searches, whether domestically controlled by the one sided ex-parte FISA Court, or hidden under Executive Order 12333, or done under foreign collection status and deemed “incidental”. Lavabit’s Ladar Levinson knows.

Which brings us to where we are today. Let Josh Gerstein set the stage:

A former e-mail provider for National Security Agency leaker Edward Snowden, Lavabit LLC, filed a legal brief Thursday detailing the firm’s offers to provide information about what appear to have been Snowden’s communications as part of a last-ditch offer that prosecutors rejected as inadequate.

The disagreement detailed in a brief filed Thursday with the U.S. Court of Appeals for the Fourth Circuit resulted in Lavabit turning over its encryption keys to the federal government and then shutting down the firm’s secure e-mail service altogether after viewing it as unacceptably tainted by the FBI’s possession of the keys.

I have a different take on the key language from Lavabit’s argument in their appellate brief though, here is mine:

First, the government is bereft of any statutory authority to command the production of Lavabit’s private keys. The Pen Register Statute requires only that a company provide the government with technical assistance in the installation of a pen- trap device; providing encryption keys does not aid in the device’s installation at all, but rather in its use. Moreover, providing private keys is not “unobtrusive,” as the statute requires, and results in interference with Lavabit’s services, which the statute forbids. Nor does the Stored Communications Act authorize the government to seize a company’s private keys. It permits seizure of the contents of an electronic communication (which private keys are not), or information pertaining to a subscriber (which private keys are also, by definition, not). And at any rate it does not authorize the government to impose undue burdens on the innocent target business, which the government’s course of conduct here surely did.

Second, the Fourth Amendment independently prohibited what the government did here. The Fourth Amendment requires a warrant to be founded on probable cause that a search will uncover fruits, instrumentalities, or evidence of a crime. But Lavabit’s private keys are none of those things: they are lawful to possess and use, they were known only to Lavabit and never used by the company to commit a crime, and they do not prove that any crime occurred. In addition, the government’s proposal to examine the correspondence of all of Lavabit’s customers as it searched for information about its target was both beyond the scope of the probable cause it demonstrated and inconsistent with the Fourth Amendment’s particularity requirement, and it completely undermines Lavabit’s lawful business model. General rummaging through all of an innocent business’ communications with all of its customers is at the very core of what the Fourth Amendment prohibits.

The legal niceties of Lavabit’s arguments are thus:

The Pen Register Statute does not come close. An anodyne mandate to provide information needed merely for the “unobtrusive installation” of a device will not do. If there is any doubt, this Court should construe the statute in light of the serious constitutional concerns discussed below, to give effect to the “principle of constitutional avoidance” that requires this Court to avoid constructions of statutes that raise colorable constitutional difficulties. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156–57 (4th Cir. 2010).

And, later in the pleading:

By those lights, this is a very easy case. Lavabit’s private keys are not connected with criminal activity in the slightest—the government has never accused Lavabit of being a co-conspirator, for example. The target of the government’s investigation never had access to those private keys. Nor did anyone, in fact, other than Lavabit. Given that Lavabit is not suspected or accused of any crime, it is quite impossible for information known only to Lavabit to be evidence that a crime has occurred. The government will not introduce Lavabit’s private keys in its case against its target, and it will not use Lavabit’s private keys to impeach its target at trial. Lavabit’s private keys are not the fruit of any crime, and no one has ever used them to commit any crime. Under those circumstances, absent any connection between the private keys and a crime, the “conclusion[] necessary to the issuance of the warrant” was totally absent. Zurcher, 436 U.S., at 557 n.6 (quoting, with approval, Comment, 28 U. Chi. L. Rev. 664, 687 (1961)).

What this boils down to is, essentially, the government thinks the keys to Lavabit’s encryption for their customers belong not just to Lavabit, and their respective customers, but to the United States government itself.

Your private information cannot be private in the face of the United States Government. Not just Edward Snowden, but anybody, and everybody, is theirs if they want it. That is the definition of bullshit.

[Okay, big thanks to Darth, who generously agreed to let us use the killer Strangelovian graphic above. Please follow Darth on Twitter]

Fund Unchained Journalism of Emptywheel: It’s All Because Of You

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[Note from Jim: There have some issues with the PayPal buttons taking you to PayPal’s main page instead of the page set up for Emptywheel donations. Please use the link below and it will give a functioning button. On my machine and browser, though, you have to click the button and stay in the same browser tab for it to work. If you do “cntrl-click” to open in a new tab, you get the main PayPal home page. If there are any issues, please let us know. If you prefer snail mail, checks made out to “Emptywheel, LLC” can be mailed to this address:Emptywheel, LLC
P.O. Box 1673
Grand Rapids, Michigan 49501-1673Thank you one and all, you are the best readers an supports on the web!]

Okay, the Emptywheel blog has run a fundraiser for a week now. For the most insightful, deep weed analyzing, cutting edge and kick ass journalism on the web.We continue to need your support.

We started this ask a week ago, and I should know because I agreed for it to start just ahead of my Trash Talk post at the open of the NFL football season a week ago last night.

But I am going to extend the ask for a short time; such as through the weekend, because it is a more than worthy effort. And it will stay on top of this blog until some time Monday with the hope that the Emptywheel model is kickstarted, so to speak, further into success. Please, help us make it so by going to this page and donating.

If there is a more neutral, deep fact based, deeply analytic, independent and proven insightful blog, or voice than Ms. Marcy T. Wheeler, better serving the relevant niche, than this one, I would like to see it. Whether you are on the right or the left, this blog is incredibly valuable for its depth and consistency of analysis.

The lioness share of this history is by Marcy Wheeler and she alone deserves the support; but you also get the cogent analysis of Jim White, Rayne and, every now and then, me. I won’t speak for my own, but the rest is damn good work. And worthy of your support as a critical voice, whether you agree or disagree with us politically, legally, and/or policy wise.

We need your support as independent journalistic voices in the mass media milieu. Make no mistake, your support of all of our work here helps establish all of us as protected and respected journalists, and we are thankful for the same.

If you are reading this, you either know, or should know, precisely what level of outstanding journalism goes down daily on, and at, the Emptywheel blog.

As they say in my business, there is a certified record. And it stands up. Help us keep up that record, and add to it, with all that is going on in the world every day.

It is not about us. It is about you, and all of us, and what we should and can be. Support this journalism. From me, to Marcy, to Jim, to Rayne, to everything that is, and always has been, the Emptywheel blog, thank you.

Some people get squashed crossing the tracks
Some people got high rises on their backs
I’m not broke but you can see the cracks
You can make me perfect again
All because of you

We can help check the government in its tracks, help fill the gaping cracks. The Emptywheel blog is indeed all because of you. True independent journalism, not bought off by anybody in the main; not subject to any corporate ball and chain. Real independent deep analysis, reportage and journalism.

Help us continue the tradition.

You can donate here.
Thank you!

The Return of the NFL: It’s ON!!!

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[Hey there Lugnuts!! We are having a fundraiser here at Emptywheel. Help the effort out! We have been really hesitant about doing this in the past. To the best of my recollection, we have not done one at all since leaving FDL. Marcy will not toot her own horn, but I will. The level, depth, independence, and rationality, of what Ms. Wheeler does makes most “Main Stream” and other “blogs” look feeble. And it is not just her, Jim White, Rayne and, occasionally, I who also contribute. This is a valuable forum. We live for you, but we also need your help. To the extent you can give it, it would be remarkably well placed, and much appreciated. Thank you!]

I have been being heckled about this Trash Talk stuff forever. Marcy is just cranky jonesing for football and Jim White thinks the Devil Rays count. But this ain’t called “Trash Talk” for nothing you know. Pre-season fake football and baseball in the swamps are not enough. Nosirree. Not in a sophisticated joint like this.

But there was a little smattering of real college football last Saturday, so there was primordial Trash. But, now, my friends, there is REAL, professional grade, NFL football in the queue. Let it be known, unless I meet a bigger margarita pitcher and burrito that looks like this tomorrow night, there will by Saturday morning be additional MAJOR LEAGUE Trash for the weekend. NCAA, NFL and the F1 Circus at Monza (yes, that really may be the bigger story worldwide. Formula One rules; get used to it).

But, tonight, there are two games on the schedule. The biggest, of course, is a replay of last season’s AFC Divisional Playoffs between the Denver Broncos and Baltimore Ravens. Ought to be a great game. Despite what the naysayers say, Peyton Manning’s arm is turning bionic in its incredible strength. The Bronco’s, however, are a bit wounded with Elvis Dumervil now on the Ravens and Von Miller suspended for the first six games. The Ravens have also lost a LOT of weight from last year’s Superbowl team, including Ray Lewis and Ed Reed. As much as the media and fans have always focused on Ray Lewis, I cannot help but believe the absence of Ed Reed, one of the most incredible ball hawks in the history of the NFL, is every bit as big a loss. Broncos are at home and are PISSED about that last minute loss last year to the Ravens. My money is on Peyton and the ARM OF HULK.

Secondarily, and I, (maybe you?) will probably have to DVR this, but the ASU Sun Devils are opening their season tonight at 10:00 pm EST against Sacramento State. Okay, this won’t be much of a game. But, GO DEVILS!!

That’s it for now. More later as promised. This is the best blog in the world, if I do say so from my completely neutral perch! Rock and roll my friends. Today’s music is by Government Mule. Because Donkos and Peyton rock….and, because, the US Government, collectively, are a bunch of War Pigs.

Bradley Manning’s Sentence, Parole and Appeal Implications

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CryingJusticeOn Monday I laid out the dynamics that would be in play for the court in considering what sentence to give Bradley Manning in light of both the trial evidence and testimony, and that presented during the sentencing phase after the guilty verdict was rendered. Judge Lind has entered her decision, and Bradley Manning has been sentenced to a term of 35 years, had his rank reduced to E-1, had all pay & allowances forfeited, and been ordered dishonorably discharged. This post will describe the parole, appeal and incarceration implications of the sentence just imposed.

Initially, as previously stated, Pvt. Manning was credited with the 112 days of compensatory time awarded due to the finding that he was subjected to inappropriate pre-trial detention conditions while at Quantico. Pvt. Manning was credited with a total 1294 days of pre-trial incarceration credit for the compensatory time and time he has already served since the date of his arrest.

Most importantly at this point, Manning was sentenced today to a prison term of 35 years and the issue of what that sentence means – above and beyond the credit he was given both for compensatory time and time served – is what is critical going forward. The following is a look at the process, step by step, Bradley Manning will face.

The first thing that will happen now that Judge Lind has gaveled her proceedings to a close is the court will start assembling the record, in terms of complete transcript, exhibits and full docket, for transmission to the convening authority for review. It is not an understatement to say that this a huge task, as the Manning record may well be the largest ever produced in a military court martial. It will be a massive undertaking and transmission.

At the same time, the defense will start preparing their path forward in terms of issues they wish to argue. It is my understanding that Pvt. Manning has determined to continue with David Coombs as lead counsel for review and appeal, which makes sense as Coombs is fully up to speed and, at least in my opinion, has done a fantastic job. For both skill and continuity, this is a smart move.

The next step will be designation of issues to raise for review by the “convening authority”. In this case, the convening authority is Major General Jeffrey Buchanan, who heads, as Commanding General, the US Army’s Military District of Washington. This step is quite different than civilian courts, where a defendant proceeds directly to an appellate court.

The accused first has the opportunity to submit matters to the convening authority before the convening authority takes action – it’s not characterized as an “appeal,” but it’s an accused’s first opportunity to seek relief on the findings and/or the sentence. According to the Manual for Courts-Martial, Rule for Court-Martial 1105:

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.

(b) Matters which may be submitted.
(1) The accused may submit to the convening au­ thority any matters that may reasonably tend to af­ fect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions.
(2) Submissions are not subject to the Military Rules of Evidence and may include:
(A) Allegations of errors affecting the legality of the findings or sentence;
(B) Portions or summaries of the record and copies of documentary evidence offered or intro­ duced at trial;
(C) Matters in mitigation which were not avail­ able for consideration at the court-martial; and
(D) Clemency recommendations by any mem­ber, the military judge, or any other person. The defense may ask any person for such a recommendation.

Once the convening authority has the full record and the defense has designated its matters for review, Buchanan will perform his review and determine whether any adjustments to the sentence are appropriate, and that will be considered the final sentence. At this point, the only further review is by a traditional appeal process.

Generally, the level of appellate review a case receives depends on the sentence as approved by the Read more →

Stop and Frisk STOPPED! [Updated]

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[Note Update below]

In a rather remarkable decision just handed down by Judge Shira Scheindlin in the Southern District of New York (SDNY), has found New York City’s insidious stop and frisk policy violative of citizen’s basic Constitutional rights. From the NYT:

In a decision issued on Monday, the judge, Shira A. Scheindlin, ruled that police officers have for years been systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. Officers often frisked these people, usually young minority men, for weapons or searched their pockets for contraband, like drugs, before letting them go, according to the 195-page decision.

These stop-and-frisk episodes, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, according to the ruling. It also found violations with the 14th Amendment.

To fix the constitutional violations, Judge Scheindlin of Federal District Court in Manhattan said she intended to designate an outside lawyer, Peter L. Zimroth, to monitor the Police Department’s compliance with the Constitution.

The full decision and order is here.

This is a very strong decision, and it is based on trial evidence and specific findings of fact and conclusions of law that should give it some extra protection, compared to a straight legal decision alone, should the city appeal to the 2nd Circuit.

The court found that the practice violated both the 4th and 14th Amendments and denied equal protection. In so doing, the court basically confirmed that New York City had a standing policy that constituted blatant racial profiling. The court noted, in reference to the City’s belligerent defense of such an unconstitutional policy:

City acted w/deliberate indifference toward NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks.

The “Applicable Law” portion contained in pages 15-30 (by the court’s page numbering) is a hornbook primer on Terry stops and reasonable suspicion.

A few words from the court will close out this post:

New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it.

….

In conclusion, I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

Bravo Judge Scheindlin, and thank you.

More like this please; the federal courts of America owe the citizens the duty of reeling in 4th Amendment abuses by governmental entities. This is a start, but the Obama Administration’s surveillance programs demonstrate there is a very long way to go.

UPDATE: I neglected to include the separate “Remedies Opinion” issued by Judge Scheindlin, here is the link for that.

A few words from the court about the intransigence of NYC and NYPD:

I have always recognized the need for caution in ordering remedies that affect the internal operations of the NYPD, the nation’s largest municipal police force and an organization with over 35,000 members. I would have preferred that the City cooperate in a joint undertaking to develop some of the remedies ordered in this Opinion. Instead, the City declined to participate, and argued that “the NYPD systems already in place” — perhaps with unspecified “minor adjustments” — would suffice to address any constitutional wrongs that might be found. I note that the City’s refusal to engage in a joint attempt to craft remedies contrasts with the many municipalities that have reached settlement agreements or consent decrees when confronted with evidence of police misconduct. (footnotes omitted)

The defendant NYC and NYPD are very much not going to like Judge Scheindlin’s remedies and, thus, likely will appeal on that basis. As I said above, the decision itself looks pretty solid for appeal, the remedies may be another matter. Professor Orin Kerr thinks the court may have gone too far in broad scope based on this paper he previously authored on 4th Amendment remedies in 2009.

I am a big fan of Professor Kerr’s 4th Amendment analysis, but we occasionally differ. And we differ here. My review of Judge Scheindlin’s remedies and order reflects a set of cures targeted and appropriate in purpose, and broad only where necessary to effect said purpose (with possible exception of order to wear cameras). We shall see how they hold up on appeal, but the remedies look proper and necessary to me.

NBC News Hires Edison Carter and Blank Reg For Big Time TV

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NBC News, showing it can move 20 minutes into the future, has made a new and exciting digital acquisition. From Brian Stelter (who was a great replacement for Howard Kurtz today on CNN’s “Reliable Sources”. Seriously) at the New York Times:

When a plane crashes or a protest turns violent, television crews speed to the scene. But they typically do not arrive for minutes or even hours, so these days photos and videos by amateurs — what the news industry calls “user-generated content” — fill the void.

Those images, usually found by frantic producers on Twitter and Facebook, represented “the first generation of user-generated content for news,” said Vivian Schiller, the chief digital officer for NBC News. The network is betting that the next generation involves live video, streamed straight to its control rooms in New York from the cellphones of witnesses.

On Monday, NBC News, a unit of Comcast’s NBCUniversal, will announce its acquisition of Stringwire, an early stage Web service that enables just that. Ms. Schiller imagined using Stringwire for coverage of all-consuming protests like those that occurred in Tahrir Square in Cairo.

“You could get 30 people all feeding video, holding up their smartphones, and then we could look at that,” she said in an interview by phone. “We’ll be able to publish and broadcast some of them.”

Such a vision fits neatly into the future many academics predict. That future has fewer professional news-gatherers but many more unpaid eyes and ears contributing to news coverage.

Before we delve too far into the analogies with the once dystopian future we are now quickly inhabiting, it should be acknowledged that, while new and exciting, this is really just a big incremental step ahead of what CNN has been doing for a while with its “iReport” function.

But the Stringwire capability would look to provide even greater immediacy than CNN’s iReport and, perhaps, even streaming coverage. There is, of course, a very negative side to this potential should unfortunately slanted or particularly grotesque coverage be presented. Also a very real concern is the potential for interference in law enforcement investigations and trauma to people effected and/or prejudiced, including witnesses, defendants and future jury pools, by publication before news is ripe and edited.

The above being said, for my part, I find Groman’s Stringwire concept to be pretty exciting and think it a pretty smart move by Vivian Schiller and NBC News. But, boy howdy, does it bring to mind the once and, apparently future, dystopian information landscape of Max Headroom. From Wiki:

The series is set in a futuristic dystopia ruled by an oligarchy of television networks. Even the government functions primarily as a puppet state of the network executives, serving mainly to pass laws — such as banning off switches on televisions — that protect and consolidate the networks’ power. Television technology has advanced to the point that viewers’ physical movements and thoughts can be monitored through their television sets; however, almost all non-television technology has been discontinued or destroyed. The only real check on the power of the networks is Edison Carter, a crusading investigative journalist who regularly exposes the unethical practices of his own employer, and the team of allies both inside and outside the system who assist him in getting his reports to air and protecting him from the forces that wish to silence or kill him.

To elaborate a little, Edison Carter of “Network 23” is one of several journalists, including another character by the name of “Blank Reg” of “Big Time TV”, who scour the landscape as one man newscrews, just them and their own videocam, for breaking news that will live feed instantaneously to their national networks to drive ratings. So, you can see the analogy to NBC’s Stringwire concept.

One difference between Max Headroom and the current television news existence is that, in Max Headroom, the television broadcasters wholly consumed and dictated to a puppet state government. The current existence of television news seems more tilted to the profit centered, shallow mass consumption oriented, stenography of government issued and manipulated propaganda. One need only look back at the coverage of the Iraq war, Afghanistan, Guantanamo, torture, the rise of the surveillance state or any report from Barbara Starr at CNN (thank you Michael Hastings) to see the problem.

So, while there is certainly potential for some concerns, maybe a function like Phil Groman’s Stringwire at NBC News can not just bring an immediacy to television news, but eradicate some of the governmentally issued bullshit that results from “Breaking News” from the likes of Barbara Starr.

All hail the future. Big Time Television, “All day every day, making tomorrow seem like yesterday.”