DEA Busts TOR-Operated “Farmer’s Market” Drug Market Place

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The DEA arrested 8 named and 7 unnamed people today in what it says is the first TOR-operated drug bust.

“The drug trafficking organization targeted in Operation Adam Bomb was distributing dangerous and addictive drugs to every corner of the world, and trying to hide their activities through the use of advanced anonymizing on-line technology,” said Briane M. Grey, DEA Acting Special Agent in Charge. “Today’s action should send a clear message to organizations that are using technology to conduct criminal activity that the DEA and our law enforcement partners will track them down and bring them to justice.”

[snip]

The 12-count indictment charges that each of the defendants was a member of a conspiracy to distribute a variety of controlled substances worldwide through the use of online marketplaces that allowed independent sources of supply to anonymously advertise illegal drugs for sale to the public. According to the indictment, the operators of the online marketplaces provided a controlled substances storefront, order forms, online forums, customer service, and payment methods for the different sources of supply. For customers, the operators screened all sources of supply and guaranteed delivery of the illegal drugs. The online marketplaces handled all communications between the sources of supply and customers. For these services, the operators charged a commission based upon the value of the order. Customers of the on-line marketplaces have been identified in every U.S. state and the District of Columbia and in approximately 34 other countries. There were thousands of registered users of the online marketplaces. The on-line marketplaces have multiple sources of supply offering various controlled substances, including lysergic acid diethylamide (LSD), MDMA (ecstasy), fentanyl, mescaline, ketamine, DMT and high-end marijuana. Between January 2007 and October 2009 alone, defendants Willems and Evron processed approximately 5,256 online orders for controlled substances valued at approximately $1,041,244 via the online controlled substances marketplaces.

As alleged in the indictment, the “Farmers Market”, previously known as “Adamflowers”, operated on the TOR network. According to the indictment, TOR is a circuit of encrypted connections through relays on the TOR network that can be downloaded on home computers. TOR allows websites and electronic mail communications to mask IP address information by spreading communications over a series of computers, or relays, located throughout the world. The online marketplaces have accepted Western Union, Pecunix, PayPal, I-Golder, and cash as payment for illegal drug sales.

The indictment isn’t yet on PACER. But I’m curious to see how they busted these guys–and whether it involves some way to counteract TOR. I’m also interested in the mention of 7 unnamed arrestees; presumably they’ll be the next lucky folks dragged into the government’s informant network.

No wonder Obama defended the war on drugs while he was in Colombia; the DEA was preparing arresting one of these guys–Buenos Aires-based American citizen Michael Evron–in Colombia at the same time Obama was there (though Evron was in Bogota, not Cartagena).

Update: One of the weirdest parts of the indictment (via Wired h/t MD) is the way it uses different time frames to quantify the drugs involved:

January 2007-October 2009: 5,256 orders valued at $1,041,244

May 2008-May 2010: 608 Western Union orders totaling $200, 031

January 2008-August 2011: 29,285 hits and 63 grams of LSD

March-September 2009: 148 grams MDMA

March 2008-June 2010: 1,489 ounces of pot

July 2009: 350 units fentanyl

It’s a veritably Borgesian list of unlike time periods and items. But it may hint at how they found these guys.

William Welch Leaving DOJ; Main Justice Circles The Ethical Wagons

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Apparently the thrill is finally gone, or at least soon to be gone. Carrie Johnson at NPR has just reported:

A federal prosecutor who led the elite public integrity unit when the case against the late Alaska Sen. Ted Stevens collapsed has told associates he will leave the Justice Department.
….
A spokeswoman for the Justice Department and a representative for Welch had no comment on his departure, which one source said he characterized as a “retirement.”

Welch had been scheduled to lead a controversial prosecution later this year of former CIA official Jeffrey Sterling, who is accused of leaking secrets to New York Times reporter James Risen. That case has drawn widespread media attention because it could set important precedent on the issue of whether reporters enjoy some sort of legal privilege that could help them protect their sources.

This is interesting, actually fascinating news. As Carrie notes the Sterling matter is hanging in the lurch. In fact, it is waiting on an interlocutory appeal decision from the 4th Circuit over claims that the DOJ, once again led by Welch, played fast and loose with critical evidence disclosure. I do not, however, think that the impetus behind this somewhat surprising announcement. The 4th case appears to have completed briefing with the government’s filing of a redacted reply about six weeks ago; however, I don’t think a decision is likely coming that fast and federal appellate courts are not that leaky. Although, to be fair, District and Circuit courts do, occasionally in media intensive cases, give the parties a heads up a decision is coming.

More likely, this is more fallout from the Ted Stevens case and the Schuelke report. In fairness to Welch, he was not one of the hardest hit DOJ attorneys in Schuelke’s report, but he was blistered by Schuelke at Schuelke’s testimony in front of the Senate Judiciary Committee in late March:

Schuelke said tight deadlines before the lawmaker’s October 2008 trial and a series of missteps within the Justice Department’s public integrity unit where leaders William Welch and Brenda Morris “abdicated supervisory responsibility” contributed to the evidence sharing lapses. The failings prompted new Attorney General Eric Holder to abandon the case in 2009; Stevens died a year later in a plane crash after he had lost his Senate seat.

The odds are fairly good that the DOJ is putting the finishing touches on its long awaited OPR report on the Stevens fiasco and, after Schuelke, needs a sacrificial lamb. And Welch is a prime candidate to be sacrificed. But that would beg the question of what will they do about Brenda Morris, whose conduct in Stevens was much more egregious and central, as a supervisor, that even that of Welch. And it should not be forgotten that Brenda Morris was also smack dab in the middle of another catastrophic black eye for the DOJ, the Alabama bingo cases. So, there are some real questions for DOJ there.

As to William Welch though, with both the OPR report nearing completion, and the prospect of a House Judiciary inquiry looming later this week, it would seem that Welch’s newfound desire for “retirement” has a bit of a forced edge to it.

One last thing should be kept in mind: the legislation proposed by Lisa Murkowski and having key bi-partisan backing after Stevens and the Schuelke Report, to reform federal evidence disclosure rules for the DOJ. The DOJ is literally, and cravenly, apoplectic about the proposed reform and has promised they have “learned their lesson” and that everybody should just “trust us”.

DOJ had been fighting disclosure reform hard for quite a long time; but there will never be better momentum than is present now, and they know it. Any seasoned criminal defense attorney will confirm that the far more open and reciprocal discovery rules found at the state level in several more enlightened jurisdictions (I can vouch for this in Arizona, which is one of them) work far better than the archaic disclosure rules extant in federal court. It would be a huge benefit to fairness in the criminal justice process, and it IS an attainable goal. And that, too, may be why we are seeing the sacrifice of William Welch.

Zimmerman: Anatomy Of A Deficient Probable Cause Affidavit

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Now that the dust has settled from the decision in the Zimmerman/Martin case not to proceed by grand jury by the Florida Special Prosecutor Angela Corey, and the decision to file a single count of second degree murder, I want to address a couple of critical topics in the case. First is the fact that there are serious questions as to the sufficiency of the probable cause affidavit that currently constitutes not just the core, but pretty much the entire basis for the state’s case.That will be the subject of the instant post. Second, will be a discussion of the mechanics of Florida’s procedure for implementing its “Stand Your Ground” law and a discussion of other pending procedural aspects of the case, and that will be covered in a followup post.

A probable cause affidavit is exactly what it sounds like, a sworn affidavit delineating probable cause in a criminal case – whether it be to search a place, arrest a person or charge a crime. Whatever the particular purpose, the affidavit must delineate the factual basis to support the specific legal action sought to be pursued by the state. And the general principle common to all such affidavits, whether for search, arrest or charging, is that it must “stand on its own” based on “what is within its four corners”. In lay terms, that means there must not only be sufficient information to cover all requisite elements necessary for the action, all such support must be actually in the affidavit – not in some extraneous place or with some extraneous source.

The Zimmerman affidavit is, at least by my analysis, wholly deficient for its purpose intended, i.e. to support the criminal charge under Florida law of second degree murder against Zimmerman.

We will start with a look at what useful, and useable, information is actually contained in the affidavit. Here is a complete copy of the full three page affidavit filed by the State of Florida in the Zimmerman case. Other that captions, signatures and certifications, all pertinent information is contained in twelve text paragraphs on the first two pages. Let’s look at them:

Paragraphs 1-3: The first three paragraphs give the names of the two investigators that are serving as the affiants for the affidavit and gives their background experience that qualifies them to do so. The investigators, O’Steen and Gilbreath both appear to be very experienced and appropriate for the task. No problems here.

Paragraph 4: The fourth paragraph details the types of material, evidence and sources the affiants relies on. Pretty standard stuff, again no problems here. (Interesting that the state appears to have a lot of “sworn statements” – even from cops, which is kind of unusual at this stage. Cops rarely give sworn evidence if they don’t have to, and prosecutors rarely want to lock them in this early. There may have been an internal affairs type of investigation that explains this, we shall see).

Paragraph 5: The fifth paragraph is the first factually substantive material. It details that Martin was living in the gated community at the time of the event, was returning from the store (with the infamous Skittles) and was unarmed and not engaged in any criminal activity. Then, however, the affidavit blurts out a critical, but completely unexplained and unsupported claim, namely that Zimmerman was “profiling” Martin. It does NOT allege that any such “profiling” had a racial animus or was, in any sense, illegal or improper. This is important because, while it is a rhetorically charged term, profiling is completely legal, whether for police or average citizens, so long as it not based on an improper invidious animus like race, religion, sex, etc. So, with NO allegation of improper animus here, and there is not, the profiling alleged is completely and unequivocally legal. Further, there is absolutely no specific attribution as to where this allegation came from – did Zimmerman admit it, if not what was the basis for the conclusion by the affiants? We have NO idea whatsoever, it is just a raw conclusory statement of absolutely no value whatsoever in its naked state. In short, there is nothing in Paragraph 5 that does anything to actually provide probable cause for the crime charged.

Paragraph Six: Paragraph six is much like paragraph five, except it details the intro to Zimmerman, where paragraph five did so for Martin. Zimmerman also lived in the gated community. It relates Zimmerman was “driving his vehicle” (we have no idea from where or to here) and “assumed Martin was a criminal”. Well that sounds bad right? Well, not really. First off, again, there is absolutely NO way of knowing where this information came from – did it come from Zimmerman? Was it culled from the 911 tape? Did a psychic conjure it up? We don’t know. Remember, it is seminal affidavit law that a;; pertinent facts must be supported and attributed “within the four corners of the document”. There is also a statement the 911 dispatcher told Zimmerman an officer was “on the way”. Again, there is absolutely nothing in Paragraph 6 that does anything to actually provide probable cause for the crime charged.

Paragraph 7: Paragraph seven is yet more of the same. It describes that Zimmerman believed there had been unsolved break-ins in the neighborhood, and “fucking punks” and “assholes” “always get away”. Credit where due, we finally have a specific attribution point for the statements by the affiants, it is specifically stated to be from the recorded 911 call. See, the state and affiants are capable of proper attribution when they want to. Small victory. The problem is, there is still NO improper or illegal activity described. None. So far, Zimmerman is judgmental and concerned about his neighborhood, but there is not one scintilla of illegal conduct.

Paragraph 8: The eighth paragraph starts out with a description of a call Martin was on supposedly at the time he was being observed and followed by Zimmerman. But, again, there is not squat for specificity or particularity, the linchpins of a proper affidavit. We are not old who the person on the phone with Martin is, what the exact time of the call, and length of call, was, and we are not told how that information is known. Was that person interviewed by cops? Did she give a sworn statement? Did these investigators talk to her themselves, or was it some other officer and, if so, who? Hearsay, and even double or triple hearsay is acceptable in an affidavit, but the path and facts establishing it must be delineated. Here it is not. Then paragraph 8 goes off the Read more →

What Zimmerman’s Charge Means (Or Doesn’t)

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Well, okay, the press conference by Angela Corey is over. Let us be clear, it was the performance of a politician and, not necessarily that of a grounded and by the book prosecutor. Seriously.

First off, Ms. Corey talked in repeated and continued platitudes and never, at any point, identified what the exact charge she was prosecuting Zimmerman under, nor her basis for doing so.

This is important to me, and the discussion herein at this blog, because 1) we are intelligent and actually care about such specifics, but 2) It is really important in a publicly and hotly contested case such as the Zimmerman shooting homicide of Trayvon Martin.

I stand by everything said in my preliminary post today as to why the path, via information filed and prelim process is not only appropriate, but absolutely smart. That still stands.

The only issue, at this point, is the actual charging of the criminal defendant, in this case George Zimmerman. Here is the SOLE charge filed by Angela Corey against George Zimmerman:

COUNT 1: IN THE COUNTY OF SEMINOLE, STATE OF FLORIDA, On February 26, 2012, GEORGE ZIMMERMAN, did unlawfully and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill TRAYVON MARTIN, a human being under the age of eighteen, by shooting the said victim, and during the commission of the aforementioned Second Degree Murder, the said GEORGE ZIMMERMAN did carry, display, use, threaten to use or attempt to use or attempt to use a firearm and did actually possess and discharge a firearm and as a result of the discharge, death or great bodily harm was inflicted upon any person, contrary to the provisions of Sections 782.04(2), 775.08(1) and 775.087(2), Florida Statutes.

That would be 2nd degree murder, as charged. Under what actual section of the pertinent Florida statute are we talking? Well, 782.04(2), 775.08(1) and 775.087(2). does that really tell you where and how the state is proceeding? No. Not to my eye, it does not. Take a look, if you can see the specific, definable, path to charge, then you are a better man and lawyer than I. If you can see, maybe, potential, possible, applicability then join the club. But, that is, of course, not the standard.

Here, however, is the manslaughter provision I proffered in the earlier post. I now see legal gadabout Mark Geragos on CNN saying the 2nd degree statute charged may be actually easier to prove up than a manslaughter charge. He is is fucking crazy loopy off his rocker if he really believes that bleating bullshit.

Seriously, I cannot speak as an active criminal prosecutor, but as a defense attorney, bring this on. If my client has to be charged, I would rather he be over charged, especially nebulously and with all the justification defenses available under Florida law, as either described and/or linked, in the earlier post.

So, to sum up, I would say it is a bit batty to charge the HIGHEST POSSIBLE CHARGE IMAGINABLE, and ONLY THE HIGHEST CHARGE IMAGINABLE, with no lesser included backups. But, hey, what me worry Angela Corey?

Yes, I am perplexed at this. Completely. Let the college of internet knowledge school us on why this is wrong.

Why Florida Is Charging Zimmerman Directly Instead Of By Grand Jury

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As you may have heard by now, the Washington Post has broken the news that Florida officials, to wit Special Prosecutor Angela Corey, will charge George Zimmerman in the Trayvon Martin killing. The charging is expected late this afternoon, but could be as late as tomorrow. Here is the key information from the Washington Post report:

Florida special prosecutor Angela Corey plans to announce as early as Wednesday afternoon that she is charging neighborhood watch volunteer George Zimmerman in the shooting of Trayvon Martin, according to a law enforcement official close to the investigation.

It was not immediately clear what charge Zimmerman will face.

Both the AP and CBS News have confirmed that Zimmerman will be charged and the AP is reporting the news conference announcing the charge will be at 6:00 pm EST today. Further, the Miami Herald is reporting there will be one single charge filed in the matter, although they do not report what the charge is.

Now, here is why this is occurring, and it s exactly what I predicted from the moment Special Prosecutor Corey’s office let it be known that she, on behalf of the state, would not be availing herself of the grand jury process, an announcement made Monday.

The bottom line is this: a direct information/complaint is a cleaner, and safer, way for Corey to proceed.

The facts are muddled, and the evidence set for the case was compromised, by incompetent investigation by police from the outset. There is, at this point, no question (and, really, there may never have been) any doubt but that Zimmerman had at least at a nominal minimum, an allegeable self defense claim. That does not mean it is valid, but it does mean that it is legally cognizable.

With the screwed up and compromised evidence status, combined with all the public attention and attendant lobbying of law and factual interpretation, it would be brutal for a prosecutor to take the matter to a grand jury. The first thing a good defense lawyer would do upon knowledge of a pending grand jury presentation is salt the prosecutor with every fact and argument humanly imaginable in his client’s behalf – in writing – and demand that it be presented to the grand jury along with the state’s case. You do that on a high profile case like this with a sloppily worded affirmative defense like Florida’s “Stand Your Ground” law, and there is every reason to believe a grand jury would decline.

But, the odds are far different if a prosecutor, in this case Corey, takes the path of filing an direct information and foregoing the grand jury. A direct information, with a duly issued arrest warrant from the court of competent jurisdiction, gives the case the instant imprimatur of legitimacy, and guarantees that it will be determined by an experienced magistrate, and not lay citizens on a grand jury. This is exactly why I argued to Jeff Toobin Monday night that it was a superior path.

Now, a little further depth on what is at play, and for that I will turn to an excellent, and correct, analysis by Reuters on this subject:

To mix metaphors, Stand Your Ground is no Slam Dunk.

The controversial 2005 Florida law grants immunity to people who use deadly force in self defense. In the days since George Zimmerman shot and killed 17-year old Trayvon Martin, critics and supporters both seem to have assumed that if Zimmerman is charged, he could easily seek and win immunity from prosecution under Stand Your Ground.

But don’t be so sure. Interviews with nearly a dozen veteran defense lawyers who have experience litigating Stand Your Ground cases suggest winning immunity could be quite difficult.

“Judges do not readily grant these (immunity) motions because they know they can pass it on to the jury,” said Carey Haughwout, the public defender for Palm Beach County.

So far, Zimmerman has not charged with any wrongdoing. A special prosecutor, Angela Corey, is still investigating the incendiary case, which carries heavy racial overtones and has stirred a national outcry.

But if charges are filed and Zimmerman does choose to seek immunity, he will face challenges at almost every stage, lawyers said.

The first hurdle will be a special evidentiary hearing in front of a judge, where Zimmerman will have the opportunity to argue that he deserves immunity. But to convince the judge, Zimmerman will have to present a “preponderance of evidence” that he acted in self defense, which under the law means he has to show he had “reasonable belief” that such force was necessary. That is a high bar, and difficult to prove, criminal defense attorneys said.

In cases where the facts are in dispute — and even if they don’t seem to be — the judge is likely to deny the Stand Your Ground immunity motion, said Ralph Behr, a Florida criminal defense attorney who has filed eight motions for immunity, all of which have been denied. More typically, a judge will choose to have the case go to trial, where the defendant must take his or her chance with a jury, just like other criminal defendants, he said.

“Most judges, I think, are comfortable letting the adverserial system play out before a jury rather than make decisions themselves,” said Behr.

Bingo! I literally could not have said it better myself. Hats off to Reuters for some fine analysis. See, filing the charge via information guarantees it gets to a court. The first step is almost certainly (and Florida criminal code is a bit, um, confusing, but seems consistent with the norm) that Zimmerman would be given an initial appearance within 48 hours of his actual physical arrest, and would be set for a preliminary hearing within ten days of the date of his initial appearance (unless he waives said time limit and requests an extension). The magistrate is going to want no part of being the final arbiter, and will want to pass this on to a jury trial level court. And, as the Reuters analysis explains, things actually favor the case getting to the jury. This is almost surely why the case is proceeding as it is. And, no, it is not, as Think Progress blithely stated, because Angela Corey definitively decided “Stand Your Ground” is inapplicable; it is about making a further court decide that issue as Reuters explained.

One last thing, in addition to the above discussion, it simply is not, and never has been, that the infamous Florida “Stand Your Ground” law is the controlling boogeyman that nearly every commentator has made it out to be. David Kopel, at Volokh Conspiracy, says:

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say.

I do not want to expend the space to cover all that David did again here, but do go read his lengthy piece on the full nature of Florida homicide and self defense law, it is very good. While I do not agree with every thing Kopel says it is, on the whole, spot on as to how Zimmerman/Martin is really a normal self defense/justification case. And so it is.

Lastly, a prediction. As related above, it appears there will be a single count charged in Corey’s information against Zimmerman. That is certainly not unusual nor distressing in the least if you are experienced in such matters. Actually, it is predictable. I predict that charge will be a single count of manslaughter under Florida Revised Statute 782.07 and aggravated under subsection (3) because Trayvon Martin was under the age of 18 years old.

So, that is why we are where we are, and my predictions for where this case is going, and why.

Sheriff Joe Arpaio’s Legal Henchman Andrew Thomas Gets The Axe

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I have written several times over the years about the unethical antics of Andrew Thomas, the disgraced former elected County Attorney in Maricopa County Arizona. (See: here, and here and here for instance).

The article at the last link was, with unwitting prophecy, titled “Arpaio And Thomas: The Most Unethical Sheriff And Prosecutor In America Conspire To Abuse Power And Obstruct Justice“. Indeed, subsequent to that article, Thomas resigned as Maricopa County Attorney, lost a bid to be elected Arizona’s Attorney General and was charged with a blistering set of ethics violations by the Arizona Supreme Court via their Disciplinary Board.

Nearly two and a half years later after the prophetic article, those chickens have come home to roost for Andrew Thomas. After the appointment of bar discipline investigators/prosecutors from Colorado to avoid conflict, the assignment of the Chief Disciplinary Judge to the case, and a two month long, very public, adversarial hearing, the Arizona Supreme Court has just issued its decision against Andrew Thomas and his two of his top aides while at the Maricopa County Attorney’s Office.

The court found insufficient evidence and dismissed a couple of the initial charges against Thomas. However, as to pretty much the entirety of the remaining thirty (30) plus counts, the court found ETHICAL VIOLATION BY CLEAR AND CONVINCING EVIDENCE.

Wow, this is a first rate tarring and feathering, as to Thomas primarily, but his key aides Lisa Aubuchon and Rachel Alexander, as well. Andrew Thomas and his go-to assistant Lisa Aubuchon have both been disbarred. The other assistant, Rachel Alexander, has been handed a much more severe suspension that anticipated, which was set at six months and one day, the extra “one day” being assessed to put her in a harder position to be reinstated. Harsh.

Thomas was charged in in a total of 30 of the counts counts, Aubuchon in 28 and Alexander with seven counts. As Yvonne Wingett and Mike Kiefer summarized in the Arizona Republic:

Charges cover a variety of allegations, including conflict of interest for holding press conferences to denounce the Maricopa County Board of Supervisors, which was his client, and threatening county officials with litigation; falsely claiming a judge had filed Bar complaints against Thomas, in order to have the judge removed from a case; and seeking indictments against county officials to burden or embarrass them. In one case, the charges allege, Thomas and Aubuchon brought criminal charges against a county supervisor even though they knew that the statute of limitations had already expired on the offenses.

The most serious allegations involve filing criminal charges against a sitting Maricopa County Superior Court judge without probable cause in order to stop a court hearing. Several of the allegations of ethical misconduct revolve around a federal civil racketeering lawsuit claiming that judges and county officials conspired against Thomas and Sheriff Joe Arpaio.

The importance of these holdings, and the attendant disbarment of Andrew Thomas and Lisa Read more →

Judge Issues Gag in Sandusky Case–After ESPN Exposes Tom Corbett’s Conflicts

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The judge in the Jerry Sandusky case, John Cleland, just gagged all the parties to the case. The Inky suggests the gag is targeted at Sandusky’s lawyer, Joseph Amendola. Of course, Amendola and even Sandusky himself have been working the media since Sandusky was first charged in the case, and the judge never issued a gag. The Inky points to contradictory psychological evaluations from one of the victims, suggesting (without any evident proof) the report came from Sandusky’s team.

Cleland’s gag order comes just more than a week after two conflicting psychological evaluations of one of Sandusky’s alleged victims were leaked to NBC News and other media outlets. Prosecutors had argued that not even the former coach’s defense team should have access to the files because releasing them would violate the rights of the purported victims.

One of the psychologists who interviewed a boy that Sandusky purportedly showered with in 1999 while on the Penn State campus concluded that the coach showed a “pedophile’s pattern of building trust” with a victim. Another, however, saw nothing inappropriate and noted that coaches often showered with their college-aged athletes.

But as the Inky admits, that report came out more than a week ago. A more recent collection of new revelations (with a reference to one of the psychologist’s reports) came from Don Van Natta Jr just two business days ago. His JoePa-friendly investigative report for ESPN focused on Governor Tom Corbett’s role.

A 62-year-old Republican, Corbett is a blunt-spoken former prosecutor whose political career has been built pursuing powerful people who, he has said, “believe they are beyond the law.” And his role in the Penn State scandal, fraught with potential conflicts, placed him in a remarkable position. As Pennsylvania’s attorney general, he investigated Sandusky for nearly two years but failed to make an arrest. But then, as governor, he blamed the university’s leaders for not doing more.

[snip]

To some, Corbett relished the opportunity and had even planned to play a role in managing the crisis. Eight days before the Sandusky grand jury presentment was released this past November, Corbett’s staff booked hotel rooms in State College. Becoming governor had made Corbett a trustee, and he had decided to attend his first board meeting, after missing the first four. During those days of crisis in State College, he lobbied for the ouster of Paterno and Spanier, ending with that conference call on Nov. 9. And when he was on campus the next day, after Spanier’s resignation and Paterno’s firing, he celebrated the leadership changes. “Throughout this whole process, I felt he had some ulterior motive,” a trustee says of Corbett. “Most trustees felt uncomfortable with his role. It was odd for him to be there and participate the way he did. Very odd.”

[snip]

A passionate defender of children who had opened a sexual predators unit in his office, Corbett had aggressively pursued such prosecutions during his career. But this time, he assigned just one investigator to the Sandusky case, say lawyers with knowledge of the arrangement, although Corbett has denied this through his spokesman. At the time, he had 14 investigators looking into the activities of Pennsylvania House Speaker Bill DeWeese, a Democrat, who was accused of having staff members use state resources for his campaign.

The information on Corbett appears to come from Penn State’s board and members of the investigative team, who would presumably be covered by the gag, though also by State College locals who reported on Corbett’s actions.

It may well be the judge decided to issue this gag because of those psychological reports (though details about the victims have already leaked). But the timing suggests it might well be targeted at those suggesting Corbett’s actions were less than noble in this affair.

Requiem For ACA at SCOTUS & Legitimacy Of Court and Case

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The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.

Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.

Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.

Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.

I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.

Despite the grumbling of so many commentators that the law was clear cut, and definitively Read more →

America, the Dystopian Reality Show: Pink Slime Edition

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When The Decline and Fall of the American Empire is written, I hope the historian writing it is astute enough to notice that the same week our nation’s highest court spent deciding whether the government could legally offer (badly conceived) health insurance reform, the business community was fighting to sustain a market for pink slime.

Pink slime arose as a typically American response to industrialization. After Jack in the Box killed a bunch of its customers by feeding them E. coli, rather than cleaning up the nation’s industrial meat supply, the food industry instead decided to scrub meat parts with ammonia before mixing it back in with The Beef.

But guess what? If you tell consumers what kind of slime you’re actually feeding them, they’ll stop eating it.

Ammoniated beef has taken a real beating in the media over the past couple years, and now fast-food giants McDonald’s, Taco Bell and Burger King are no longer using it. As veteran journalist Philip Brasher reported over the holidays, the Iowa-based company that manufactures the beef product — at one time used in around 70 percent of American ground beef — has watched sales drop by 25 percent.

Beef Products Inc. uses an innovative process to turn fatty beef trimmings, which used to go mainly into pet food and other byproducts, into hamburger filler. Because the trimmings are at risk for E. coli or Salmonella contamination, the company adds a mixture of ammonia and water (ammonium hydroxide) to kill bacteria. BPI’s process, progressive food safety policies, and state-of-the art system have received numerous food safety awards and the company has never been linked to a foodborne illness.

But when some consumers find out about the treated beef product — dubbed “pink slime” by a U.S. Department of Agriculture microbiologist — they don’t like what they hear and food companies are taking notice.

In 2008, many American eaters were introduced to the product by Food, Inc, the Oscar-nominated documentary, which portrayed the technology as merely masking a symptom of a bigger problem: the industrial meat system. A year later, a New York Times expose questioned whether the ammonium hydroxide process was really delivering on its food safety promise, which is especially critical considering the product is widely used in the National School Lunch Program.

After Krogers and McDonalds both decided they couldn’t continue to sell consumers pink slime anymore, the pink slime company, BPI, shut down a bunch of pink slime factories.

Now a bunch of Governors and other industry-owned hacks have taken to the airwaves to defend pink slime.

Three governors, among them recent presidential candidate Rick Perry of Texas, two lieutenant governors, and the Under Secretary for Food Safety at the U.S. Department of Agriculture all went to bat for Beef Products Inc. in a press conference in South Sioux City, Nebraska Thursday to assure consumers that Lean Finely Textured Beef, now widely known as “pink slime,” is safe and nutritious.

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White House Counsel Kathy Ruemmler Vows Not to Let the White House Be Defeated by Actual Citizens

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In an article describing how–in the guise of “flexibility”–the White House has continued the seeming relentless grab for unchecked executive power, White House Counsel Kathy Ruemmler offers a terribly cynical explanation for the Administration’s asinine levels of secrecy regarding its drone strikes.

But in an interview, White House Counsel Kathy Ruemmler acknowledged Mr. Obama has developed a broader view of executive power since he was a senator. In explaining the shift, she cited the nature of the office.

“Many issues that he deals with are just on him, where the Congress doesn’t bear the burden in the same way,” she said. “Until one experiences that first hand, it is difficult to appreciate fully how you need flexibility in a lot of circumstances.”

[snip]

Ms. Ruemmler said Mr. Obama tries to publicly explain his use of executive power, but says certain counterterrorism programs like the drone campaign are exceptions. Opening them to public scrutiny would be “self-defeating,” she said.

The WSJ doesn’t explain what she meant when invoking “self-defeat.” But her stance was described in a Daniel Klaidman article on the Administration’s decision, at a meeting in the Situation Room last November, to release more information about the targeted killing of Anwar al-Awlaki.

Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

That is, Ruemmler’s not making an argument about the efficacy of the drone strikes themselves; al Qaeda already knows who’s responsible for the arms raining down on their heads.

Rather, Ruemmler doesn’t want to be “defeated” by journalists, civil liberties organizations, and ordinary citizens seeking to at least understand, if not limit, executive power.

Kathy Ruemmler’s not waging her counterterrorism war against al Qaeda when she warns of self-defeat. She’s waging her counterterrorism war against us.