When it was revealed that the Federal Bureau of Investigation, when pushed to the limit, planned to tell the judge to kiss their collective butts, it gave rise to a question:
So you big-time, important, federal judge, you. How do you like a bunch of guys in polyester suits telling you they really don’t give a shit what you order (unless it’s what you order what they want you to order), because you’re a joke in a robe and they’ve got guns. How does that sit with you, Judge?
This is where some genius will quote Hamilton in Federalist 78 about the judiciary being “the least dangerous branch.” So what? Either it’s a co-equal branch of government or it’s not. If not, then it’s a palliative, something we do to pretend it matters and suck the will out of us to do something effective, something real.
But Judge Robert J. Bryan of the Western District of Washington, the judge who refused to back down in the face of the FBI’s refusal to comply, engaged in some high math, calculated the integrity of the judicial branch of government relative to the guns of the executive branch, and arrived at the solution.
In February, a judge ordered the FBI to reveal the full malware code it used to identify visitors of a dark web child pornography site, including the exploit that circumvented the protections of the Tor Browser. The government fought back, largely in sealed motions, and tried to convince the judge to reconsider.
It has succeeded. The government’s motion has been granted, and the FBI does not have to provide the exploit code to the defense as previously ordered. That means that the defense in the case will probably be unable to examine how the evidence against their client was collected in the first place.
Was it because the future of the world is the internet, and releasing the dirt on how the government can perform its exploits would let the Tor criminals win? Was it because the judge sat down in a room with a government lawyer who explained the facts of life to the judge, that if he insisted on ruling that the FBI give up its secrets, he was about to bring the whole dog and pony show of the judiciary actually mattering to its knees?
How you gonna make us, Judge? Just how do you think that’s going to happen?
Judges think the United States Marshals love them, will do anything for them. Hey, the marshals have guns too, you know. And they hang around the courthouse with the judges, telling them how well their tie matches their shoes, so if a judge asks them to go raid the FBI office, they would do it, right? Right?
The only weapon of the judiciary is integrity. We accept the premise that those guys in robes get to decide things, get to order us around, because they are principled, they are the decision-makers in whom society has reposed trust, so that we don’t shoot it out in the streets whenever we have a slight disagreement. We trust the judiciary to be the real deal.
And indeed, the judiciary is very real to us regular guys, because they get backed up by the marshals, even the FBI if need be. But when they push too far, as Judge Bryan apparently did here, the fantasy of the system is put to the test. Will the FBI do what it absolutely, positively refuses to do, just because some guy in a robe said so?
Hell, no.
There were only two solutions available here. The first was the constitutional clash, where a judge ordered something to be done and the guys with guns said, “nope, and you can’t make us.” That would have been embarrassing, since it would reveal the impotence of the legal system as a legitimate co-equal branch of government. We would all then laugh at judges when they ruled, knowing that it was just a matter of who had more guns. Might makes right, and the judges were shooting blanks.
Or the judge could back away, hem and haw, hold a secret meeting where we could suppose that deeply persuasive national secrets were at stake that, if revealed, would mean every child in America would be raped and pillaged, and so we could totally understand why, in the exercise of judicial restraint and deep thoughtfulness, the government’s secrets should remain secrets and we would all sleep well again tonight, secure in the knowledge that the guys with guns were our friends, protecting our children from imminent rape.
The question raised in the first place was how, dear judges, do you feel about the guys with guns telling you that you got nothing, that they’re happy to listen to you only as long as you haven’t crossed their line. But that once you issue an order to which they “strenuously object,” you can shove your order where the sun don’t shine? How do you feel about that?
Maybe Judge Bryan had a damn fine reason for reversing himself, but without knowing that to be the case, without knowing why the government gets its own door into the judge’s chamber, it’s impossible to blink hard enough to believe that this is all fine and legit. Spare us the speeches and platitudes. You got put to the test and failed. The government called your bluff and nobody laughed at your joke.
We got our answer.
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The reason you wrote “You got put to the test and failed” isn’t clear to me. Was it because Judge Bryan decided not to continue his demand of the FBI? Or was it because, having not continued in that demand, he did not dismiss the case?
Having some experience in the technical side of the intelligence community, I am wiling to believe that there are some technological means that should be held secret, and this might be such a case; hence grant the judge the benefit of the doubt.
As a non-lawyer, am I off the mark in thinking that if defense can make a showing that the technical details are important to conducting the defense, and those details are denied the defense, that the judge ought to dismiss? I’m sure that I’m oversimplifying (at the least), and that the answer could range all the way from an essay up to ‘go study law for a few years’, but I am curious.
I bet your curiosity will be sated if you think about it. I believe in you.
You ask a different question than Thomas. This isn’t a question of remedy, but enforcement of his order.
Same answer as Thomas. Think hard.
And I was so looking forward to seeing: “John Marshall has made his decision; now let him enforce it!”
I failed. Thank you for pointing it out.
“Every failure teaches a man something, to wit, that he will probably fail again.”
The Judge had the tool. Civil contempt. Just start locking up FBI agents, one after another, when each one refused to hand over the information. Once the field office is out of agents, start up the chain.
He could have done that, had he not reversed himself. In fact, that was what I suggested first time around.
Very troubling. Then again, I thought the original post itself was troubling in itself. Colin’s memorandum in opposition to the motion for reconsideration was very well written. It’s unfortunate that it did not trigger the judge to start cracking heads and remind the executive branch who is in charge of the courtroom.
Well I hope you didn’t get your hopes up.
http://www.clowncrack.com/wp-content/uploads/2016/05/Crucifixion2.jpg
Couldn’t a judge just pick a single lead investigator and jail him for contempt ?
Sure.
Wait, are you sure you’re not getting ahead of yourself here? Yes, Judge Bryan ruled “the government has a justifiable right not to turn the information over to the defense”, but he also ruled “the defense has a justifiable need for information in the hands of the government”, and my understand was that he’s holding another hearing next week on how to resolve it. In other coverage of this I’ve seen, it was written that this sort of conflict is not at all uncommon (Jencks v. United States, 1957 was an example), and there’s nothing inherently odd or new about both sides being right. In those cases it’s typically been resolved by allowing the government to make an either-or decision between larger national security concerns and continued prosecution of the specific accused. If the government believes there is a greater good at stake so be it, but then it becomes poison fruit as far as the judicial branch is concerned. Which makes sense to me, military intelligence is a thing and valuable, and requires secrecy, but it has no place in the justice system either.
So I guess I’m not actually seeing an answer here yet from Judge Bryan, just a summation of situation. The answer will come when the judge decides how to resolve that situation. If the case is allowed to go forward anyway that really would be disgusting/surprising, but if it merely ends up being “the court won’t try to force revealing code if the executive asserts there’s something bigger at stake, but if so you can’t proceed with the case either” then wouldn’t that be fine? And if the reporting has been wrong and that really has been decided, what is next week’s hearing actually about?
Except the judge already resolved the issue by ordering disclosure. And now he didn’t.
Aren’t appeals and legal equivalents of “I think this decision was a mistake Your Honor” a perfectly normal part of the legal process though? When Apple was most recently fighting the FBI, one of the constant frustrations with mainstream media reporting were headlines along the lines of “Apple refuses to comply with court order”, as if they were somehow putting themselves above the law when in fact they were arguing perfectly within its bounds. The issue I asked clearly wasn’t resolved because it wasn’t even on the table, it specifically is the issue of what to do when a legitimate, reasonable need for secrecy crashes against the (even more) legitimate, reasonable requirement for transparency and citizens’ core rights in court.
I don’t personally see anything new, illegal or even unreasonable about the government needing to have multiple hats, including a Military Intelligence/National Security Hat and a Criminal Justice Hat. The real crux seems to be that the government must never ever be allowed to wear both hats at once, in some ways a more specific version of bigger themes like the military itself being a distinct sphere from law enforcement, with powers and equipment we forbid LEAs but itself forbidden from domestic affairs (Posse Comitatus, 1807 Insurrection Act etc). As with Fruit of the Poisoned Tree, I think “allowing a potential criminal to go free”, particularly one the public considers heinous, is by far the most powerful (and perhaps only truly effective) deterrent against serious LEA and prosecutor misconduct. It can result in major political fallout, which is what many in politics truly fear, and goes against a core ethos of the work (“putting away criminals”, whether that should be the ethos vs “justice”/”protection” or not).
So I think it’s sufficient if the government is forced to choose every time. They can take it out of the judicial sphere entirely and make it purely a matter of national security, in which case the courts have nothing to say on the matter but in both ways, there is no case at all and whomever was accused goes free. Or, the government can put on their domestic law hat, full transparent disclosure as required, and prosecute individuals within criminal law. That seems naturally self-limiting: even taking the most cynical, self-interested, corrupt, Machiavellian view, the government is going to need a pretty darn good reason to justify national newspaper front pages being filled with “Government chooses to let dozens of accused child abusers go free to protect secret technique”. Even for top political spinmasters that’s a nasty one, particularly in a nation that’s currently brimming with populist challenges.
You assert that Judge Bryan caved to a threat of ultima ratio regum here, implicit or otherwise, by acknowledging the existence of a National Security Hat, but I do not think you have sufficiently justified such an accusation when he seems to merely be treading an old path, and one previously trod by very big shoes. Quoting Justice Brennan from the SCOTUS opinion:
>”It is unquestionably true that the protection of vital national interests may militate against public disclosure of documents in the Government’s possession. This court noted in United States v. Reynolds that in criminal cases, ‘…the Government can invoke its evidentiary privileges only at the price of letting the defendant go free.'”<
That was nearly 60 years ago. Why would the FBI be able to invoke evidentiary privilege for undercover informants or secret techniques but not some secret software? It seems to be perfectly within precedent so long as at the hearing next week the judge sticks to the same old formula: evidentiary privilege and mistrial follow by dismissal, or full disclosure with the prosecution allowed to go forward. If he deviated from that and allowed opaque, secret evidence then yes, that would be an outrageous surrender (or just plain poor judgement). What am I (and the various news sites I read) missing here?
Have you considered writing substantially shorter comments? If you do, they might get read.
So, short and sweet as you asked: yesterday, Judge Bryan issued an order suppressing all evidence related to the FBI’s TOR exploit kit [1]. He did not outright dismiss the case, choosing the alternative remedy the defense offered instead, but frankly it seems the government will face a rather challenging task in securing a conviction with that and all its poisonous fruit tossed.
You accused him of specially rolling over to the government. How does this order fit into your narrative?
[1]: https://www.documentcloud.org/documents/2842885-Michaud-Order.html
Grossly inadequate. One defendant won a battle, but the government won the war.