As  Radley Balko wrote when he twitted this story, what could possibly go wrong?  WSBTV.com in Atlanta reveals:

During dinner last night, I was trying to explain to Dr. SJ why I hated the new version of tweetdeck, a twitter interface that was created by somebody else, bought by twitter and improved to the point that it’s gone from great to awful. She, unwed to anything techy aside from me, asked why they would do such thing.

I explained that every six months or so, everything on the internet seemed to change. Nobody left anything alone, and even though it wasn’t broke, they were always fixing it until everybody moved to the next new thing. I told her I hated it.

“Does everybody hate it or just you,” she asked?

“I probably hate it more than most people,” I responded.

“Because you’re so adaptable,” she laughed.  When my children aren’t around to keep me humble, she picks up the slack.  The  New York Times public editor writes about the elimination of numerous blogs, with more to die soon. The age of blogs was born, matured, and died, according to the Times.

At The Faculty Lounge, where lawprofs openly seek only the company of their intellectual equals, Alfred Brophy asked whether law blogs were still relevant. I  semi-snarkily commented whether he was talking about law blogs or law prof blogs.

A few years ago, I tried to get law profs to engage with lawyer blogs. It went nowhere. They didn’t like they way they were treated by lawyers, which ranged from disrespectful to vulgar. And there was nothing in it for them, as they write for appreciation, some might say adoration, of their own kind. What lawyers think of profs is no more relevant to them than what non-lawyers think of lawyer blogs.

On the other hand, the lawprofs offered law bloggers a bit of an inside joke when they openly admitted that they were  happy enough to get spam comments rather than no comments at all. It really was an insight into how sad and desperate the need for validation can be within the Academy, and why their purpose for blogging was so very different than lawyers’.

One of the only blogs that was never really focused on gaining the adoration of the Academy was created by Eugene Volokh. It was a by-product of the politics, like an intelligent version of Ann Althouse meant for people who think rather than pander. But then, Eugene wrote a post yesterday that I found deeply unsettling, A Warning to Lawyers. 

He apparently just found out that lawyers were using marketeers to spam comments and offer guest posts.  Either Eugene was immune from the forces of evil that bore on the rest of us for the past five years, or he was shaken from his complacency by a conceit that really pissed him off.

Most recently, I got an e-mail asking whether I would take guest posts from a law firm’s lawyers — but the e-mail was badly written (which doesn’t augur well for the future guest posts) and also began with “Hi Eugene,” a salutation that many people find off-putting when it comes from a total stranger.

UPDATE: For comments along a similar line (with more details), see Ken (Popehat). Ken has a good way of putting it, which paraphrases Eric Turkewitz: “when you outsource your marketing, you outsource your reputation.”

Via Mike Masnick at Techdirt :

While much of the news coverage of FBI Director Robert Mueller’s Congressional hearing this week focused on his admission that the FBI has used drones domestically, there were some other points raised, including his “defense” of the broad surveillance techniques that appears to amount to the idea that it just takes too long to obey the Constitution and go through the proper procedures before getting information:

Testifying before the Senate Judiciary Committee, Mr. Mueller addressed a proposal to require telephone companies to retain calling logs for five years — the period the N.S.A. is keeping them — for investigators to consult, rather than allowing the government to collect and store them all. He cautioned that it would take time to subpoena the companies for numbers of interest and get the answers back.

“The point being that it will take an awful long time,” Mr. Mueller said.

Well, shucks

Got a problem? Pass a law. As much as people complain that we have too darned many laws, the reality is that they want them, love them, see them as their salvation. Of course, it’s not that they just want laws willy nilly. Oh, no. They want laws to fix the critical problems that touch their lives, and so government, always happy to have something new to do so that they can remind us of how much they’ve done for us in their last term of office, is here for us.

In Florida, Governor Rick Scott feels the pain of those who can’t bear the delay of convicted criminals who should have been executed yesterday, but remain alive on the state’s dime, eating, drinking, watching cable TV and working out with their free gym membership, filing papers right and left to get a court to let them test some DNA to prove their actual innocence.

Innocence, shminocence. In a perfect world, Floridians would have them taken out back of the courthouse and shot within minutes of the verdict. Finality, baby. After all, isn’t this the best legal system ever created (except for that Casey Anthony woman, who should have been taken out and shot by accident. Oops, sorry Jose. My bad.) So Scott signed off on a law to put a smile on every redneck in the panhandle.

Gov. Rick Scott signed a bill into law Friday aimed at accelerating the pace of the death penalty process in Florida that could make the governor the most active executioner in modern state history.

The measure, dubbed “the Timely Justice Act” by its proponents, requires governors to sign death warrants 30 days after the Florida Supreme Court certifies that an inmate has exhausted his legal appeals and his clemency review. Once a death warrant is signed, the new law requires the state to execute the defendant within six months.

In a lengthy letter accompanying his signature, Scott aggressively countered allegations by opponents that the law will “fast track” death penalty cases and emphasized that it “discourages stalling tactics” of defense attorneys and ensures that the convicted “do not languish on death row for decades.”

Why are these guys languishing? Well, they won’t languish anymore, Scott promises.

“If this bill had been law, it would have ended my life — even though I was innocent,” said Sean Penalver of Broward County, who was exonerated after six years on Death Row, as he delivered 6,000 petitions to the governor’s office in May. “But if he signs this bill into law, I fear other innocent people like me will be unjustly executed by the State of Florida.”

Sure, Penalver. It’s all about you and those so-called innocent people wrongfully convicted and sentenced to death. Like that happened more than, oh, a few hundred times. Rule and roll, baby. We’ve got people to execute and there’s no time like the present. And if a few innocents get fried in the process, well, that’s the price of a free society.

Higher up the east coast, the  New York Senate has approved an Animal Rights Registry, because the 1999 Buster’s Law won’t be Republic Senator Greg Ball a thankful doggy lick.

Senator Greg Ball (R,C,I-Patterson) announced that the New York State Senate has passed  S2305A, legislation that will require those that violate Buster’s Law by abusing animals, register his or her name and address with the division of criminal justice services, undergo a psychiatric evaluation and will also ban them from ever owning a pet again.

Plus, anyone on the list, after having served their sentence under Buster’s law but clearly not punished anywhere near enough (and given that New York, unlike Florida, has no death penalty), will now have a new list of people who will be denied jobs, housing, education and futures.  So what if they paid their debt to society?  Do it for the votes doggies!

Unfortunately, animal abuse is a prevalent problem in our society. As there are laws to protect children and the elderly from abuse, it is important to extend this means of protection to animals as well. Much like Megan’s Law was designed to prevent sex offenders from repeating crimes against children, this legislation
will serve to prevent animal abusers from committing repeat offenses.

But wait. There are laws to protect children. There are laws to protect the elderly. There are laws to protect animals.  But there is no Child Abuse Registry. No Elderly Abuse Registry. Heck, we don’t even have a murderer registry, or a jaywalking registry (do you have any idea how prevalent jaywalking is in New York?).  How will we ever be saved?

Yet, there’s a far more serious threat than making sure we have registries so we know who to hate in perpetuity. That’s right. Bullies. Big meanies. When the Big Meany turns out to be little kid, however, they rarely have enough loot in their piggy banks to fund the next police crackdown. But their parents do.

As part of an effort to crack down on “harassment and emotional abuse among young people,” a Wisconsin town will reportedly ticket and fine parents whose children repeatedly bully others.

As The Wisconsin State Journal reports, the “parent-liability” approach is part of an overall ordinance passed last month by the Monona City Council and may break fresh ground in the nationwide effort to reduce schoolyard bullying among children and teens.

After all, bullies come out of the womb that way, so who better to blame when a kid calls another kid a mean name?  Even though the fine is only $144, Monona figures that if they put enough undercover officers on the playground, they can nail every parent, over and over, because they all think the bully is some other parents’ kid and not theirs! Their little darling would never say anything to hurt another child’s feelings. Oh boy, are they in for a shock.

And lest you feel left out, if there is anything or anybody who irks you, there are legislators standing by awaiting your phone calls to sponsor a law criminalizing anything that makes you sad.  All you need is a brief description and the name of a dead child, dead animal or meaningless buzzword that’s been in the news lately. No need to wonder when the hammer will drop on whoever or whatever pisses you off, as the days of languishing are over.

You want the perfect society?  No sweat. Just one more law will fix everything. Happy now?

In a folksy op-ed in the Daily News, New York County District Attorney Cyrus Vance, Jr., bemoans how his heart is breaking.  There are headlines to be had, and he’s not getting them. Where’s the love? Where’s the appreciation? How will he ever be more than the guy Morgenthau picked so that Leslie Snyder never gets the job?

In recent months, the politics sections of New York papers have read more like Hollywood screenplays: elected officials wearing secret wires, scheming to bribe their way onto their ballot, engaging in shady business dealings.

It’s hard not to notice that virtually all these alleged crimes have been prosecuted in federal, not state courts, and by U.S. attorneys, not district attorneys.

It is hard, Cy. All these great crimes happening in the cesspool that is New York City politics and you, poor Cy, left out in the cold.  No headlines. No interviews. No fawning admiration of hot young official corruption groupies.

But then, it’s not like these nasty politicians aren’t being caught, aren’t being prosecuted. They are. And they are investigated and prosecuted by an entity from a jurisdiction without inherent conflicts, who won’t suffer from the unintended consequences of relying on the colleagues of your targets, maybe even the targets themselves, for funding or changes to law.

Cy wants to change this. He’s got ideas that will put him in the thick of things, and more importantly, in the headlines.

To strengthen New York’s weak state corruption and procedure laws, Gov. Cuomo has proposed the Public Trust Act. It’s a much-needed first step to give local prosecutors the right tools to crack down on public corruption.

For one thing, it finally gives teeth to New York’s public bribery laws, which unlike our other bribery statutes — sports, commercial and labor — require either a mutual agreement between the parties or that the person giving the bribe believes that the public servant will be influenced by a bribe offer.

Under the governor’s proposal, the offer of a bribe could be treated as seriously as the completion of a bribe.

Do we really want it to be harder to prove a case against a crooked politician than a boxer?

Well, that’s a tough question when you ask it that way, but it’s not nearly as tough when the question isn’t so loaded. After all, they aren’t “crooked politicians” is they didn’t commit a crime, and since it’s not a crime, they’re kinda just ordinary politicians who you think ought to be called crooked.

But the core of the problem makes the question far harder. Politicians survive on campaign contributions. It is a terrible idea, but that’s the way our society handles elections. We simultaneously demand these guys run for office all the time, and it takes buckaroos to buy air time and print up four color brochures. Anyone who wants to win an election, even incumbents, needs money to do so, and they have to get that money from somewhere.

Sure, their friends and family give some up, but that’s not enough to pay for dry cleaning. No, they depend on the only people who give a damn whether they’re elected or not, the people who can benefit from their holding office. And so they pander, smile and kiss the delightful butts of the very people who want something from them.  It sucks. It looks awful. But it doesn’t make them crooked unless there is a quid pro quo for the cash.  For the record, boxers don’t need to be elected.

While a change in the law might well snag some bad dudes (and dudettes), it will also snag a whole bunch of people trying hard to get elected and doing nothing any more wrong than anybody else. It would give you the ability to make a case against them, except they wouldn’t be criminals.  Just politicians doing what they have to do in the normal scheme of politics. And it would put it into your hands to decide whether to go after them anyway.

With all that power, people in Albany would shake when you walked up to them to ask for a little more funding, a new law every now and then. They would quiver. They would always take your phone calls, Cy, because you would have the power to destroy their careers, if not their lives. That’s a lot of power, Cy. Almost as much as Morgenthau.

The bill also would end New York’s unseemly practice of giving a complete transactional immunity “bath” to witnesses who appear before grand juries in cases of misconduct in public office and government fraud. This would give state prosecutors a tool that our counterparts in other states and the federal government have had for decades — though narrowly tailored to apply only to the problem at hand.

Unseemly, Cy? This core tradition of New York criminal law, that’s been with us since the beginning, and to which New York, a state that professes a belief in the Constitution that surpasses that of some of those southern states where cousins regularly marry.  Do you want cousins to marry, Cy? When that happens, it completely screws up DNA identification, as everybody’s starts to look alike.

When a witness is compelled to appear before the grand jury in New York, they receive transaction immunity, not just use immunity as the feds enjoy.  Your “bath” is New York’s constitutional protection, Cy. You can’t make your case without forcing people into the Star Chamber? There is no due process in the grand jury, as our great (if somewhat sad) former Chief Judge explained when it comes to Criminal Possession of a Ham Sandwich in the First Degree.  And you want to turn New York into some backwater, giving away our heritage for a quick headline, Cy. How sad.

And, recognizing the seriousness of fraud against the public, the act also creates the crime of “corrupting the government,” which would apply to ongoing schemes to defraud the state or local government, regardless of whether the perpetrator is a public servant.

These provisions are a great way to get change rolling at a time when New Yorkers are rightfully demanding more vigorous oversight of elected officials.

Pondering what must be an epidemic of regular citizens “corrupting the government,” since it demands a new law to prevent it, it’s hard to imagine who these people are that they are responsible for taking the pristine public servants of Albany’s chambers and turning them into crooks.  If this is happening at such a significant pace that a new crime is needed, then they must be incredibly powerful people to take the fine politicians of the Empire State and twist them into corrupt pretzels.  No wonder New Yorkers are “rightfully demanding” more vigorous oversight of elected officials.

But you, Cy, are an elected official too.  And oversight is certainly a good thing, but you aren’t asking for oversight. You are asking for new crimes and the end of historic protections. Are New Yorkers “rightfully demanding” that?

Some are, Cy.  And if you think yourself worthy of the vast power such changes will put into your hands, the power to make Senators and Legislators bow to you and fear your watchful eye, you can prove it by cleaning your own house first, Cy.  There’s that unconstitutional stop and frisk thing you’ve been ignoring. Or the Brady thing. Or covering up for bad cops thing. You can stop it with a snap of your fingers right now.

New Yorkers are rightfully demanding it.  Don’t disappoint them, Cy.



See? Already you’re name is showing up on the boob tube. Imagine what would happen if you cleaned up your own mess.

My fellow curmudgeon, Mark Herrmann, offers another fundamental concept worth noting in his Above the Law post, On Tweedledee And Tweedledum, Esq. Plus, who doesn’t love a Lewis Carrol reference?

Remember the old joke about the father and son playing golf in Montana, where they’re told by the ranger that if they see a grizzly bear, don’t run away as the bear can run far faster than they can?  So when they happen upon the bear on the 7th hole, the son bolts. The father yells at him, “Son, the ranger told us not to run because you can’t run faster than the bear.”  The son responds, “I know, Dad, but I don’t have to run faster than the bear. I just have to run faster than you.”

Welcome to who’s the better lawyer.

After the Tweeds have been practicing law for a few decades, each having “puked his puke of a life away here, I tell you,” the Tweeds both have pretty fine track records. They both have long lists of cases they’ve won. If they’ve been practicing for 25 years, ineptly handling two cases each year and — arithmetic being what it is, and all — winning half of them, then the Tweeds can each boast of having won 25 cases during the course of an illustrious career. These guys must be good! How else could they have had such success?

What of the fact that “he’s won an awful lot of cases for us in the past”? Bad lawyers win their share of cases — so anyone will win some cases for us. But better lawyers win more than their share of cases. And we don’t have a control universe here: Perhaps Tweedlewhoever did not spot a critical issue back in 2002, so we never filed a winning summary judgment motion in that case. I understand that we may have settled on the cheap, but perhaps we should have gotten out on motion.

When Tweedlewhoever tells us that he did a great job preparing a witness, how do we know it to be true? The in-house lawyer may not have attended the prep session; even if she did, she surely didn’t read all of the e-mails and documents and figure out what a great prep session would have looked like. Tweed tells us that he did fine work; why should we believe him?

The guy is no good, and he doesn’t even know that he’s no good. (Or, as I’ve quoted more elegantly before, “he knows not and knows not he knows not.”) We should shun him.

It may have been  too easy to glom off Kris Kristofferson’s Me and Bobby Magee, but  there  were  plenty who cried that  Salinas v. Texas was the death knell of the right to remain silent.  I hate to be contrary, but while Salinas did great harm, never underestimate the potential for things to get worse. Much, much worse. 

At PrawfsBlawg, Stanford law’s  Will Baude takes up where Clarence Thomas’ concurrence, with some Nino love thrown in, leaves off.

Earlier this week, I mentioned as an aside that I appreciated Justice Thomas’s call to overrule Griffin v. California (which forbids judicial and prosecutorial comment on a defendant’s exercise of his right not to testify).  I don’t have anything terribly profound to say about why, but since that view seemed to surprise and displease some people, I thought I’d say more about my thinking.

First, Griffin is probably wrong.  As Justices Thomas and Scalia discuss in their separate dissents in Mitchell v. United States, there’s little reason to believe that the no-commenting-on-defendants’-silence rule has a historical basis, nor is it a straightforward reading of the text of the Fifth Amendment.  

You read that right, that Baude contends that the Constitution should not prohibit the prosecutor from commenting on the defendant’s failure to testify. He goes on:

Second, the system would probably be more legitimate– and might even be more accurate– if defendants testified more.  The current incentives are rigged to discourage defendants from testifying– even defendants who have something they’d like to say.  Nobody can comment on the defendants’ failure to testify, and if the defendant does testify, prior convictions or other damaging impeachment evidence can come in. (See.)  Ideally, I’d scrap the Griffin rule and the use of prior convictions for impeachment as a package, but even scrapping one or the other would be an improvement.

While insulating defendants from cross for prior convictions and impeachment in order to enable more defendants to testify offers an element of balance, it’s not the only reason why defendants don’t testify. Indeed, it’s not the primary reason.

Defendants suck at testifying. They aren’t schooled in the art, like cops, and they aren’t usually selected for prosecution because of their intelligence or public speaking abilities. They may be a bomb waiting to explode, or so easily confused and manipulated as to be a disaster on cross. No amount of prep can change a lifetime of stupidity or bad attitude. But that doesn’t make them guilty, just horrible witnesses.

Others don’t speak English well, and use of a translator has myriad problems. Still others suffer from mental illness or intellectual limitations. And some use drugs, despite our best efforts to persuade them otherwise, and there is nothing uglier than a junkie on the stand an hour past his fix.

Even the smart ones, the well-educated white collar guys, without negative priors but a laundry list of charitable acts, blow it on the stand. They tend not to like to be cornered by lawyers, and react poorly when not treated with the respect they think they’re due. And juries don’t like it when they spit back at questions. In fact, they hate it, and hate them for doing it. And yet they do it all the time.

But Baude has more:

Third, I don’t think it makes much sense for the Constitution to regulate most of [what] prosecutors say during opening and closing argument.  Criminal cases are full of litigation about various kinds of improper comments and prosecutorial misconduct for the things prosecutors tell the jury, and the whole enterprise strikes me as misguided (with the exception of statements that describe inadmissible evidence).  The prosecutor’s comments are not the law.  The defense attorney can disagree with them.

This is where he demonstrates that he is utterly, insufferably clueless about trial. Even as it now stands, with prosecutors prohibited from commenting on the defendant’s failure to testify and judges instructing the jury that they may draw no negative inference,  there is no jury that isn’t influenced by the defendant’s failure to testify.  None. Ever. The only question is whether the defense can surmount this overwhelming bias.

But Baude is dead wrong when he asserts that the defense attorney can disagree with the prosecutor’s argument that the failure to testify is due to guilt. Try a case, Will, and see what happens.

The prosecutor’s argument is easy.

The defendant had the right to testify, to tell you, ladies and gentlemen of the jury, that he didn’t do it. He chose not to. What does that tell you?

And what does the defense lawyer say in response? That the defendant has a constitutional right not to testify? Oh yeah, that’s persuasive. He can’t argue that the defendant would make a miserable witness, is too dumb or argumentative, has a lousy attitude, needs a fix? 

There is no evidence in the record, nor could there be, as to what legitimate reasons could motivate a defendant to not testify. The defense can’t argue evidence that doesn’t exist. He’s screwed.

Griffin is such a fundamentally critical protection of the defendant’s Fifth Amendment right that it would be unthinkable, inconceivable, to try a case without it. If the failure to testify, not merely to answer questions, could be used against the defendant, he would be absolutely compelled to testify no matter what problems that would cause, because the failure to do so would be a guarantee of conviction. The jury bias would be overwhelming, and anyone who thinks otherwise is dead wrong.

So the end of Griffin would create the law’s version of Heller’s Catch-22, failure to testify assuring conviction and testifying being a likely disaster. Of course, given that the current state of affairs is so incredibly favorable to defendants, with a 97% conviction rate, why not argue for the death of Griffin to level the playing field and make sure that no one walks away?  Never forget that things can always get worse, and Baude’s contention would clearly take us deep into Griffin-22 territory.

It seemed like such a great idea to the nice folks who rushed to embrace the future of law.  They gave it a really cool name, “experiential learning,” and made a big announcement about how third year students at Washington & Lee were going to hit the ground running. It was supposed to show the stodgy legal Academy how it would change everything.

But it didn’t. Via Paul Caron at Tax Prof Blog, Deborah Jones Merritt ponders the employment puzzle :

Pedagogically and professionally, it makes sense for law schools to teach practical skills along with theory and doctrine.

Employers say they are eager to hire these better-trained, more rounded, more “practice ready” lawyers–and they should be. That’s why the employment results for Washington & Lee’s School of Law are so troubling. Washington & Lee pioneered an experiential third-year program that has won accolades from many observers. Bill Henderson called Washington & Lee’s program the “biggest legal education story of 2013.”

Sadly, the statistics say otherwise. Washington & Lee’s recent employment outcomes are worse than those of similarly ranked schools.

When the biggest and brightest new idea that everyone adores crashes and burns, a post-mortem is in order.  Merritt unceremoniously lays it out:

The results are troubling for advocates of experiential learning. They should also force employers to reflect on their own behavior: Does the rhetoric of “practice ready” graduates align with the reality of legal hiring?

Q. Other insights from the data you’ve gathered about Google employees?

A. One of the things we’ve seen from all our data crunching is that G.P.A.’s are worthless as a criteria for hiring, and test scores are worthless — no correlation at all except for brand-new college grads, where there’s a slight correlation. Google famously used to ask everyone for a transcript and G.P.A.’s and test scores, but we don’t anymore, unless you’re just a few years out of school. We found that they don’t predict anything.

What’s interesting is the proportion of people without any college education at Google has increased over time as well. So we have teams where you have 14 percent of the team made up of people who’ve never gone to college.

Q. Can you elaborate a bit more on the lack of correlation?

A. After two or three years, your ability to perform at Google is completely unrelated to how you performed when you were in school, because the skills you required in college are very different. You’re also fundamentally a different person. You learn and grow, you think about things differently.

Another reason is that I think academic environments are artificial environments. People who succeed there are sort of finely trained, they’re conditioned to succeed in that environment. One of my own frustrations when I was in college and grad school is that you knew the professor was looking for a specific answer. You could figure that out, but it’s much more interesting to solve problems where there isn’t an obvious answer. You want people who like figuring out stuff where there is no obvious answer.

Of course, in law, there is always an answer: It depends.

Josh Dratel has spent the last few years doing something that few of us really want to do, defending the penniless accused terrorists.  It’s thankless work, given the near impossibility of getting the basic information that would otherwise be offered to the defense of anyone else because of national security.  It’s not so secret that they can’t indict and convict, but it’s far too secret to let even defense counsel with security clearance know about.  An interesting concept of due process.

That made it all the more curious when Josh learned that these  huge secrets were being spilled before Congress in defense of the NSA’s collecting every bit of information that conceivably exists about anyone. 

When a senior FBI official told Congress the role the NSA’s secret surveillance apparatus played in a San Diego terror financing case today, nobody was more surprised to hear it than the defense attorney who fought a long and futile court battle to get exactly the same information while defending the case in court.

“His lawyers — who all have security clearances — we can’t learn about it until it’s to the government’s tactical advantage politically to disclose it,” says New York attorney Joshua Dratel. “National security is about keeping illegal conduct concealed from the American public until you’re forced to justify it because someone ratted you out.”

When it’s a matter of discovery in a federal prosecution, mums the word. When it’s about justifying secret conduct that undermines the integrity of the American government, it becomes a four-part harmony of the greater glory of our nation.  Can you hum a few bars?

When Josh tried to get access to the FISA applications that allowed the government to seize 1800 phone calls and 680 pages of emails, he was stonewalled.

The government fought the request in a 60-page reply brief, much of it redacted as classified in the public docket. The Justice Department argued that the defendants had no right to see any of the filings from the secret court, and instead the judge could review the filings alone in chambers. “Confidentiality is critical to national security,” the government wrote (.pdf)

Not that it really mattered:

“Indeed, to the Government’s knowledge, no court has ever suppressed FISA- obtained or -derived information, or held an adversarial hearing on motions to disclose or to suppress,” the government added.

But despite his security clearance, it wasn’t enough that he was deprived of the basic discovery that would otherwise be required in any criminal prosecution. Josh wasn’t even allowed to see the judge’s order denying him access.

U.S. District Judge Jeffrey T. Miller rejected the defense FISA challenge in a secret opinion in June of last year; even Dratel, who has a government security clearance, was not permitted to see the order, he says. The first he learned of the NSA’s role in his client’s case was when Joyce disclosed it on CSPAN to argue for the effectiveness of the NSA’s spying.

CSPAN, the newest delivery method of Rule 16 discovery. Of course, the revelation wasn’t meant for Josh or his client, for whom the concept of due process was nothing more than “trust us.”  This was the means for the government to show the efficacy of its efforts to protect us from terrorism, to thwart the plots that would let the terrorists win by undermining our way of life.  This is why it was important enough to disclose such critical national secrets that couldn’t possibly be revealed to security-cleared lawyers defending people entitled, by law and Constitution, to know the evidence against them.

And they protected us from what?  Well, there is the nightmarish plot to bomb the New York Stock Exchange.

By coincidence, Dratel also represents Sabirhan Hasanoff, who was also cited by Joyce in a surveillance success story. Hasanoff supposedly plotted to blow up the New York Stock Exchange. Hasanoff has pleaded guilty to providing material support to terrorists. But the government’s own sentencing memorandum shows that the defendants called off a proposed plot on their own, without any involvement from federal authorities, and over a year before being arrested.

“There was no plot,” says Dratel. “There was one guy was asked to check out a tourist site downtown. It was a year and a half before they arrested Hasanoff. So if they thought it was really a plot, what were they doing letting him run around?”

You might think it weird that the powerful and important men explaining to Congress how their accumulation of every bit of information they could get their hands on saved America from devastation neglected to mention this.  But given the vast amount of information, how can you reasonably expect them to remember that the plot to blow up the stock exchange was nonsense? These guys  have oodles of info in their heads. They don’t suffer the small stuff.

Even Josh, probably because he took the secrecy a bit personally before he realized that he could get discovery by watching TV, doesn’t appreciate the importance of national security.

“This casts suspicion on everything they say about these programs, and the efficacy of these programs,” says Dratel. “Their notion of transparency is so tired. They have to stop lying to everybody.”

Tired? Maybe  not as tired as he might suspect.



After all, there are plenty of buildings across the nation that nobody blew up, which proves what a great job our government is doing to stop terrorism.  All they have to do to succeed is keep it secret, and Americans certainly appreciate it, even if Josh doesn’t.

H/T Doug Cornelius

The mother of an eleven year old knew they would be coming for her child.  Why remains a mystery, which is likely for the best. It can’t be a good thing when an eleven year old gets arrested. But as a mother, as a person, as a Texan and as an American, she did the one thing she could.  She asked the police officers at her front door to show her the warrant.

Via  MyFoxLubbock by way of  Turley :

The mother said that she was aware that there was a criminal complaint made against her 11-year-old son and simply told police “I will release my son to you upon viewing those orders.’ She says that the officer responded:

“He said, ‘This is how you want to play?’ He took two steps back, turned around to the officer and said, ‘Take her.’ They turned me around, handcuffed me, and took me in.

She spent the night in jail and police left the boy at the house. He was never arrested. Her lawyer says that it turns out that there was no warrant since the encounter occurred on May 29 but the directive to apprehend was not signed until May 30.

“He told me it was their duty to come pick up my son,” She said. “Yet, I had someone stay the night at my house. They never came back that evening, they never came to pick up my son, or do what they told me they were there to do in the beginning.”

[The mother’s lawyer, Dwight] McDonald said the Slaton Police Department will issue an apology as long as the mother agrees not to file a lawsuit.

[My Fox Lubbock] attempted to contact Slaton’s city attorney and city manager. Due to the possibility of litigation, both declined to comment.

Chief Steven Wheeler assumed command of the department in August of 2011. Chief Wheeler believes in building strong communities through education, communication and cooperation.