Ah, to be cited by in an opinion of the United States Supreme Court. One of the great honors, recognition that one’s work, thoughts, are worthy of mention.  If it happens to a law professor, it will launch a dozen self-congratulatory posts, will be used as a shining example of the relevancy of legal scholarship and raised prominently when it’s time to renegotiate the contract. Yes, quite the honor.

Unless, of course, it was mentioned to support a proposition that is contrary to its purpose, abusive of its point.  What then?

Via Adam Liptak at the New York Times :

The case, Maryland v. King , was about whether the authorities may take DNA samples from people arrested in connection with serious crimes. Justice Anthony M. Kennedy, writing for the five-justice majority, drew on a 2000 book by the founders of the Innocence Project and a newspaper columnist to explain why this was a good idea.

“In the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense,” Justice Kennedy wrote. Then he quoted from the book, “Actual Innocence.”

I asked Peter J. Neufeld, one of its authors, how he felt about the honor.

“Not great,” he said.

In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck [is it possible to write a story mentioning the Innocence Project, even one about Peter, that does not include Barry’s name?], represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne .

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.”

The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.

Kennedy also misquoted Neufeld. In a quote from the book, Kennedy writes that Neufeld and co-author Jim Dwyer encourage “prompt testing” of DNA to prevent wrongful convictions. But Kennedy implies that the authors were advocating for prompt testing of all arrestees. They weren’t. They were advocating for prompt testing of evidence collected from the crime scene. In their book, Neufeld and Dwyer take six sentences to explain this. In his quote, Kennedy hides those six sentences behind an ellipsis.

Liptak points out that Kennedy’s quote from the book also includes a second interesting ellipsis. After misstating what the authors meant by “prompt DNA testing,” Kennedy then notes that they state such testing could “prevent the grotesque detention of … innocent people.” The original quote included the words thousands of in place of the ellipsis. Liptak writes, “Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings.”

A deep, dark secret within the magical community of lawyers is that the phrase “with all due respect” is an insult.  It’s the facially acceptable way of saying “that’s the stupidest thing I’ve ever heard,” but since saying that to a judge would make them unhappy with you, which rarely serves any good purpose, we pose it in more genteel language. But that’s what it means.

With all due respect, Broward County Circuit Judge Kathleen McHugh, your sentencing Chad Ochocinco to 30 days rather than probation as was agreed in the plea offer was arbitrary, improper and abusive.



What is it? Are you not a football fan? Football players give their teammates a slap on the butt as a sign of appreciation. Did you not just ask whether he was satisfied with the efforts of his lawyer,  Adam Swickle? You asked? You went out of your way to compliment Swickle’s work. And so, in conformity with your question, your statement, he was a bit demonstrative in his showing of appreciation. So what?

It probably embarrassed you a bit that others in the courtroom started giggling when Chad gave Swickle the slap on the butt. You realized then that you, not he, started the chain of events that culminated in the butt slap. You thought it made you look foolish?

Not nearly as foolish as when you chastised the defendant for having “not taken the proceeding seriously,” even though your comment reflected nothing about his conduct, but your own.

True, it’s only 30 days, hardly a blip in the scheme of sentences imposed on defendants by judges in the Land of the Free.  There are certainly far harsher sentences to be alarmed about, outraged about, and similarly needlessly imposed. But yours, judge, was captured on video and played widely because Chad Ochocinco was a football player. It’s part of the reason why you felt compelled to try to vindicate your dignity, not wanting the world to see you look weak or realize that this was your lack of self-esteem on trial rather than his lack of seriousness at the sentence.

But judge, we expect you to be bigger, smarter, more secure in your own competence, than to react like a petty tyrant trying to clean up her own mess before anybody notices who caused the problem. Had you let it pass, no one would have noticed, or thought ill of you. But it apparently struck a chord with you, enough so that you felt compelled to salvage your dignity.  With all due respect, your dignity issues are your problem, not Chad Ochocinco’s.

Your job, and your only job, was to impose sentence for the violation of probation. If the sentence of probation with community service was the proper sentence before the butt slap, it was the proper sentence afterward. What you did, and what can’t be explained any other way, is punish Chad Ochocinco not for the offense that brought him before you, but for the offense of innocently causing others in the courtroom to laugh. Oh, the humiliation of having people laugh during your sentence. How will you ever live that down?

“The whole courtroom laughed because you just slapped your attorney on the backside.”

Rarely has a judge provided as clear a path to her troubled self-esteem than this. 

The only “act” taken by Chad was to show his appreciation to his lawyer in the manner that comes naturally to him.  By no stretch of the imagination can this be construed as an affront to the court. There is no rational basis to find him responsible for others in the courtroom laughing. They thought it was funny? How is that his fault? 

While it’s easy to be dismissive of a judge behaving foolishly, even self-indulgently, at the expense of a defendant when the sentence is only 30 days, it’s wrong to do so. The lifer might scoff, but if someone who was supposed to walk out of court on a plea ended up doing time in the pokey, that’s his time, his days and nights, his life, that shouldn’t be behind bars even for a minute. That’s how it works.

So Judge McHugh, with all due respect, your conduct in the sentencing of Chad Ochocinco was a disgrace. If you can’t control your low self-esteem needs long enough to appropriately fulfill your duties as a judge, then you have no business being on the bench.  Sometimes people will laugh in your courtroom. Toughen up and get over it. That’s not a justification for your to indulge your fragile desire for the veneer of respect by taking it out on a defendant.

Following the disclosures of the NSA’s accumulation of every communication ever made by every person in the United States, debates rage over whether the leaker, Edward Snowdon, is hero or traitor, whether the government’s action was lawful or proper.  Good and important arguments, but unavailing.

What is known, conclusively, is that technology allows this to happen and the law has not prevented it. The true distinction between the Orwellian world so many of us fear and the disclosure that we’ve been living in it for, well, at least a while now, is whether those branches of the government expected to adhere to the law, honor the Constitution, would do so if the judicial branch said so.

The problem is that the government, from Congress to the Supreme Court, have fallen so far behind the curve of technology that its reduced itself to a nullity in these debates. Exhibit A is this post by Orin Kerr at  Volokh Conspiracy about a 9th Circuit decision that, had it come out a month ago, would have made for an interesting discussion.

Can Anyone Intercept Unencrypted Wireless Communications?

Google argues that the answer is “yes,” in this oral argument today in the Ninth Circuit in Joffe v. Google.   It’s an interesting question as a matter of statutory interpretation, largely because Congress wasn’t thinking about wireless Internet networks when it was writing about “radio communications.”  The statute reflects different carve-outs from different eras that each reflected technologies of its era, all of which now are now barnacles on the hull of the statute that exist decades later when the technologies are very different.

For years, the criminal defense bar has challenged the Colorado state lab’s competency, integrity and accuracy. Arguments questioning its results, its methodology have been made over and over, and rebuffed.  The problem is always the same, that without knowing what’s happening inside the onion, you can’t prove that it’s rotten at its core.  And the defense bar was always on the outside, only shown the top layer that looked exactly the way officials wanted it to look.

But they knew.  And they were right.

The March 18 report was the result of an investigation conducted by the Mountain States Employers Council. A redacted version, obtained by The Colorado Independent, shows a decline in training and oversight in the toxicology lab. It also finds it “more likely than not” that:

• “employees perceive they’re ‘not adequately trained to provide fact or expert testimony in court.’”

• “employees justifiably perceive that blood-alcohol training protocols for toxicology lab analysts are inadequate.”

• “refrigerators used to store blood and urine samples are not locked, making them accessible by unauthorized personnel.”

• A supervisor “had toxicology lab employees help him/her with his/her master’s thesis during work hours.”

• That same supervisor “made statements that suggest s/he is biased against defendants in criminal cases” and “imposes unreasonable burdens on toxicology analysts by making excessive accommodations for prosecutors and law enforcement agencies.”

• And that “employees justifiably perceive that the toxicology lab is not sufficiently staffed to handle the work load.”

Given that the problems began at least as early as August 2011, hundreds if not thousands of criminal cases could be affected by the allegations, says state Public Defender Doug Wilson.

In a letter written Friday, Attorney General John Suthers disclosed the existence of a two-and-a-half-month-old, scathing report on the Laboratory Services Division of the Colorado Department of Public Health and Environment, the agency that does forensic testing of chemical samples used by prosecutors.

The defense community is livid and wants to know how long Suthers, whose office represents the Health Department, knew about the report before disclosing its findings late on Friday. It also wants to know if the Attorney General — a former district attorney and former U.S. Attorney for the District of Colorado — had shared the report with prosecutors before telling defense lawyers who could potentially have used its findings to defend their clients. The report could be a basis to argue that test results and testimony in their clients’ cases are not, or should not have been, admissible as evidence.

I didn’t see this coming.

In his celebrated career as a criminal defense lawyer, Gerald Shargel has represented Mafia bosses, corrupt politicians and celebrities in hot water, while trying more than 125 jury trials along the way.

Now, four decades after hanging out his own shingle, Mr. Shargel has closed the law offices of Gerald L. Shargel L.L.P. and on Monday will announce that he is joining the corporate law firm Winston & Strawn as a partner in its New York office.

One cop, Andrew Blomberg, was acquitted last year in the beating of Chad Holley. Will the same happen for another Houston police officer, Drew Ryser?  A trooper and Texas Ranger took the witness stand in his defense to explain why it should, using a vision and language that only they know.  From the Houston Chron :

Jess Malone, a former state trooper who has assisted in the investigation of more than 100 police misconduct cases, said that Ryser’s hand strikes in the arrest of Holley, then 15, were justifiable given the situation.

Ryser admitted striking Holley during the arrest. However, he denied kicking Holley, saying a move seen in the video was a rugby maneuver called a “stab step.”

Malone testified that while he does not believe Ryser kicked Holley, doing so would also be within the confines of police protocol. “Kicking is perfectly legal,” Malone said. “It may be distasteful, but it’s legal.”

A kick becomes a “stab step.” Either way, perfectly legal.

Malone testified that the arrest scene was “very chaotic” and very risky. When asked by prosecutors if the risk dissipated when Holley was on the ground and being struck, Malone continued to defend the officers’ actions.

“There’s no obvious position of surrender until you are in custody,” the ex-Ranger said. “Anything’s possible.”

Former Texas Ranger Chief Maurice Cook, the second witness called by the defense in Friday’s trial, reiterated the sentiments of his fellow Ranger on the stand.

“(Ryser) did act as a reasonable officer based on the totalitary of circumstances,” Cook said, calling Holley “an active resistor.”

Cook, who teaches law enforcement at Alvin Community College, said Ryser’s strikes to Holley’s head were permissible and identified them as “pain compliance.”

Prosecutor Tommy LaFon showed the arrest video to Malone on the stand and asked whether there was an attempt to arrest Holley before he was struck.

“The first contact that happens with Mr. Holley is several officers putting feet on him,” LaFon said referring to the kicks and knee strikes in the video. “Have you ever seen a police officer handcuff someone with their feet?”

Obviously, LaFon doesn’t understand the language of cops, at least when it comes to Chad Holley. One can’t handcuff someone who hasn’t surrendered, and since there is “no obvious position of surrender,” and anything can happen, the police were left with no choice but to execute cop moves with cool names upon his head and body.

But this all happened three years ago, so you probably don’t recall that Chad Holley was then a 15-year-old being chased for a burglary. He was subsequently convicted of it in juvenile court and sentenced to probation. He had already received the requisite whoopin’. And this is the video of  his arrest.

It would have been bad enough, no, horrible enough, had this just been another utterly needless tragedy of over-armed cops using all their toys to protect themselves first, to accomplish with excess force what they could have easily accomplished safely, that ended in the death of 7-year-old Aiyana Jones in Detroit.

But no, that failed to explain what really happened.  Via CBS Detroit :

Jurors in the trial of a Detroit police officer charged with involuntary manslaughter in the death of a 7-year-old girl watched a video Tuesday of the police raid that led to the fatal shooting.

The shot that killed Aiyana Stanley-Jones in 2010 could be heard on the video, which was recorded by a crew from “The First 48,” a reality TV show on A&E Networks. Officer Joseph Weekley’s gun fired and struck the girl in the head while she slept on a couch.

It wasn’t just for the testosterone rush that Weekley carried a submachine gun into the house, but for the cameras.  So you could watch some cool show about the heroic work of law enforcement.  Here’s what you could have seen:



And this is the face of the young human being on the other end of that gunshot.



The family photo is not just one of a lovely little girl, but of an irony that can’t be manufactured. Notice the faces in the background, the Disney characters of beautiful fantasy females that young girls adore? If any one of them had been shot in the head in her sleep during a nighttime police raid, you would be bombarded with news about it. How many have heard of Aiyana? It happened over three years ago, but a dead 7-year-old in Detroit doesn’t get the airplay of a Jodi Arias.  At best, it’s worth A&E, not the networks. Cable has too much time to fill with cheap content.

A witness, Sgt. Robert Malone, explained the process.  Note in particular the language, the heroic police jargon that captures hearts and minds on cable TV shows and makes police officers feel brave, valued and manly.

“Generally when we do entries, there is a lot of yelling. You generally hear a lot of ‘Police, police, police. Get down, get down. Police, police,” but it was a little more frantic than normal. I heard a lot of screaming that wasn’t typical of a normal entry,” he said.

Weekley was the first officer through the door — “the tip of the spear” — assistant prosecutor Rob Moran said in his opening statement to the jury.

“The flash grenade goes off: Boom!” Moran said. “He stands there. This is called the fatal funnel. You never stand in a doorway. Three seconds after the flash grenade detonates, his gun goes off and that’s when the fatal shot is fired.”

The idea behind all this is to disorient the occupants of the house, to cause momentary confusion so they can’t process what’s happening until the police have overwhelmed them with shock and awesomeness.  It looks great on TV, reminding viewer what a spectacular job the police are doing protecting them from the vicious criminals, even if they turn out to be 7-year-old girls, and that they better not screw with the cops or their home could be the next one on camera.

Yet, this scenario ends up with an unanticipated outtake. You see, it was meant to show greatness, and nobody planned on its showing the killing of a child. “Cut,” the director would yell, but there was no stopping reality TV. A dead child was as real as it gets.

Homicide investigator LaTonya Brooks testified that detectives didn’t want the TV crew at the scene. Fishman said police department officials never asked officers if they wanted cameras following them with people asking “dumb questions.”

“That’s additional pressure to doing a pressure-filled, difficult job, wouldn’t you agree?” Fishman said.

“I agree,” Brooks said.

Cameras. Pressure. Dumb questions.

Malone, like Brooks, testified he would have preferred not being “miked up” and having cameras tagging along taping their every move.

“I just know that, again, it’s distracting and it was a serious event that we were getting ready to undertake. So, I disagreed with it 100 percent tactically. I don’t think that we needed distractions,” he said.

When it goes clean, meaning they use all the toys but only kill a dog or two, and not a child, however, they get to play hero on the telly. Gather the family, gather the team, let’s watch ourselves be awesome cops on cable.

Except whether they are “miked up” or not, they are still holding guns in their hands, and those guns have real bullets in them, and they are aimed at real human beings. The type who can die when struck by real bullets from their real guns.  The people holding those guns can’t blame the TV cameras for pulling the trigger. Being on camera doesn’t mean you’re excused for killing people.

The idea that Weekley, who vomited right after realizing that he had just shot a child, was horrified by what he did reflects that the shooting was accidental. He didn’t mean to pull the trigger. Nobody wanted to kill anyone that night. But the problem remains that when you carry a submachine gun on a raid, people sometimes get killed. Sometimes, the person will be a little girl.

While there is plenty of blame for this killing to spread around, from the people who conceived this particular raid to the people who decided that cops need special weapons and tactics so they can rush in with grenades rather than wait out a person under safe and nonviolent conditions, it’s hard to lay blame for Aiyana’s death on the cameras or mikes.

But what the TV crew can be blamed for is their reflection in our sickness at wanting to watch the police do things like this to people, creating a television-worthy show of force.  What remains a question is whether the reality show, had the cameras captured the actual shooting of this beautiful child, would have aired it.

In a post at  PrawfsBlawg that offered insight into the peculiar institution called the legal academy, Harvard lawprof  I. Glenn Cohen offered a laundry list of “to do” and “not to do” for others of his breed to get the holy grail of academia, tenure. Rather than see this as inside baseball, it was twisted a bit to suggest either a reflection of how it works at Harvard, or perhaps Cohen’s personal recommendations, generating some natural anger from those young lawyers who are always naturally angry, and he pulled it down. 

Of course, this being the internet and all, that didn’t work too well. and it lives on in cache, not to mention in except at Keith Lee’s  Associate’s Mind and Paul Caron’s Tax Prof.  Paul provides the listicle:

1. Write less than one paper a year or leave most of your publishing for late in your tenure clock


2. Co-author too much


3. Being too much of a wallflower or being not enough of a wallflower


4. Focus too much on teaching or service


5. Fail to get to know those in your field, fail to be a good PR agent for yourself


6. Undertake projects with timelines incompatible with your tenure clock, including books


7. Focus on the views of your mentors to the exclusion of the views of your faculty as a whole and outside readers

What makes this list particularly curious is that it was controversial to different groups for entirely different reasons. Among the academy standard bearers, it made them look trivial and puny, as if they lacked the intellectual fortitude to handle a new academic that had a thought that was better, bigger, smarter or more important than theirs. 

For the aspiring academic, the message was play nice but not too nice. Be smart but not too smart. Work hard but not too hard. Do nothing controversial to upset the gray beards and blow rainbows up their butts.

But the worst was number 4 on the list, do not focus too much on teaching or service.  Because, you know, why would a teacher want to, you know, be a good teacher.  At a time when law schools are challenged by new lawyers, unable to find work and incapable of safely practicing law, to justify their tuition bills, this really isn’t the sort of advice they want to hear. As Keith Lee points out:

This should make every practicing lawyer very sad and worried for the future of the profession. Here is a law professor – at Harvard – saying that his job stability is better served by not serving his students. The people that we are entrusting to train the next generation of lawyers are being encouraged by their institutions to not focus on students, but instead on papers, projects, and other scholarship that has little to no relevance in the actual law practice.

A law school’s purpose is not prestige, or papers, or books. A law school’s purpose to produce new lawyers. Period.

It’s like he read the law porn and believed it! Kids. You gotta love ’em.

Of course, that’s the purpose of law school from the perspective of some students. Others think it’s a three year opportunity to decide what they want to do with their lives. Still other would be more than happy to be taught little, freeing up their evenings for beer bong, with a sheepskin at the end the makes them a member of the lawyer club, where they get fabulous paycheck and a guaranteed life of prestige and security.  The idea of what constitutes “producing new lawyers” is in flux these days.

This being the interwebz and all, Paul Horwitz posted a sign language interpretation* of Glenn Cohen’s post on  PrawfsBlawg explaining why Cohen was undeserving of opprobrium.

A broader point I have made about tenure here before is that this is supposed to be a profession and a vocation, not just a sweet job. (Although it surely is that.) For all the talk one hears from (some) law professors about speaking truth to power, speaking independently and courageously, and so on, I don’t hear half as much talk about how professors seeking tenure should worry first and foremost about those things, and not about securing tenure. I don’t buy the view–which I see much less of these days, although there are still vocal proponents of it–that anyone capable of getting a job in law teaching could easily switch over into a lucrative job in private practice. That might have been true when one started law teaching, but not by the time one has invested several years in teaching and out of practice. But I doubt the choice is generally between teaching or nothing for most.

Finally, an admission that all lawprofs aren’t so fabulous that they would be kicking sand in David Boies’ face if they actually practiced. The facile justification for some exceptionally comfortable salaries has long been silly, and utterly unproven, though I suspect Paul’s view is still in the minority. After all, it’s easy to believe oneself a brilliant lawyer is one never has to actually be a lawyer, brilliant or otherwise.

But the aspect that generated the most heat from Cohen’s list, the “don’t focus too much on teaching or service” advice, gets some play:

Let’s talk about the “don’t overinvest in teaching or practice” point–which, again, was made in a spirit of realism, not commendation. Some responses, here and elsewhere, suggested that this revealed everything we need to know about law schools and law teaching. I get the reaction, but I think it’s wrong. First, I could imagine similar advice being given across the academy. Second, whatever “overinvesting” in teaching means, the original post suggested–correctly–that most junior law professors do it; and I think he was right that most of us are happy we did so. Your colleagues are not the ones standing in front of a room of students, who have reasonable expectations that you’ll know how to do your job; you are. And you do have an obligation to them. Third, he didn’t recommend underinvesting in teaching, or define what an appropriate investment in teaching is.

The policy of virtually disregarding teaching in employment decisions is acknowledged to be a fairly bad one. Almost no one will defend it straight up (the exceptions being a handful that believe whatever the market produces must be correct.) Changing it isn’t simple or pain-free. Simply paying more lip service to teaching during the process isn’t enough. Real employment outcomes need to depend on it in order for performance in that area to be taken seriously. That means hiring and tenuring some mediocre scholars because of their fantastic teaching abilities, and letting some fantastic scholars go because their teaching is simply not very good.

This last sentence is where it all comes together, for better or worse. If law school was all about teaching students how to become lawyers, an assumption long maintained by students, their parents and practicing lawyers, then the academy would have snub scrubs in favor of those who fit the dual requirements of practical experience and the ability to convey it to students.

Within Glenn Cohen’s list, and Paul Horwitz’s deciphering of it, is the tacit admission that law schools, and particularly their tenured faculties who are charged with upholding, if not improving upon, their prestige within their peer group, exist to protect the turf of scholars at the expense of students. 

Don’t blame Cohen or Horwitz for giving up the academy’s secrets. Don’t blame the academy for wanting to protect its members’ ability to get paid a damn fine salary to do the things that they enjoy.  If you could get away with this, you would too. 

What we can blame the academy for is that in the course of taking law geeks who are unlikely to last a day on trial in the trenches (despite Paul’s argument that the option isn’t lawprof or nothing) and making them wealthy and happy, they have failed to fulfill the core requirement for the existence of the animal known as law school.  And what this kerfluffle shows is that left to their own devices, the legal academy will never recognize or openly concede that they are incapable of teaching students to become lawyers.

For all the dancing around the issues, reducing the length of law school, lowering tuition, adding clinics, and whatever lipstick on a pig solutions the adherents of the future of the law propose, it’s all a distraction from the main event.  If lawprofs can’t teach kids to be practicing lawyers, then it’s three years and a boatload of money wasted.

The scholars won’t change this because this isn’t the life they dreamed of. The students won’t change this because they are both clueless and utterly narcissistic. And the practicing lawyers can’t be bothered even thinking about this, totally absorbed with making a living.  But it will change. It just won’t be fixed.

* Forgive the fact that quotes from Horwitz’s post are veerrrry looooong. He’s a lawprof and he would be shunned for brevity. Even on the internet. It’s very sad.  Even tenured professors don’t want to be shunned.

It’s no surprised that people call them “honey, sweetie, darling” or just “the girls.”  Are they offended by it? Do they laugh at it? It’s unclear, but it appears to push them to show everyone in the courthouse that cute as they might be, they are not to be taken lightly.



Are they as good as they think? Who knows. I certainly hope so. They can’t be faulted for their work ethic if they indeed leave no stone unturned.

Is it hard for two young women to start a criminal defense practice? Of course it is. It has all the problems of two young men, their lack of knowledge and experience, the difficulty in getting clients to trust your skills enough to give you a shot.  But being young females adds an additional dimension to the problems. While the guys, from court officers to clerks to older lawyers, will be happy to help you, that still doesn’t mean they will take you seriously.  That is, until you prove yourself.

The lesson here isn’t just a woman thing, but a young lawyer thing. This is hardly an optimal way to learn how to become a criminal defense lawyer. Whether their self-assessment is accurate, or even anywhere in the ballpark of accurate, can’t be said, especially given that self-assessments are notorious. But they seem to have drive and, with hard work and luck, will make something  of their efforts without causing harm to too many defendants.

It beats the hell out of sitting on the couch in their parents’ basement whining about how they can’t get a job.

The place is in an uproar over news broken by Glenn Greenwald at the  UK Guardian that the NSA has obtained en masse the metadata of American telephone calls.  Millions upon millions of calls, all without suspicion that we’re doing anything wrong. All approved by Judge Roger Vinson sitting as FISA judge.

And the place is in an uproar. Because the reality of what we’ve allowed and approved, even if tacitly, for decades has come to light?  Grow up.

Congress enacted FISA in 1978. The riff raff, like us, didn’t know about its existence until sometime in the 1980s, at which point we pulled our hair out, yelled and screamed, over this outrageous violation of basic principles of freedom, privacy, liberty.  And it was news for a few hours until everybody went back to watching TV and the stock market.

And all was forgotten, because the truth is that we don’t care all that much, our attention span is brief and shiny things are more fascinating to the American public. They always have been.

It’s been extended and expanded since then, including a paradigm shift in how it worked back in 2004, during  the mid-second-Bush years.  The  New York Times wrote about it. The few who were interested knew about it. The rest were busy scrambling to get their new iToys.  Remember that? No, I didn’t think so.

And so we now learn about the government getting it all, and likely far more than Greenwald tells about. And uproar ensures.  Turning to the person who will always offer the finest explanation of why the government knows what it’s doing,  Stewart Baker calmly explains:

The Director of National Intelligence issued a statement late last night about the NSA collection flap.

First, large-scale collections give the government a way to screen for patterns in communications that will bring to light terrorists who are unknown to the government. As the DNI puts it,  ”The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications. Acquiring this information allows us to make connections related to terrorist activities over time.”

Second, the government justifies collecting a reservoir of data because it is only allowed to consume the data a spoonful at a time.

In short, there’s less difference between this “collection first” program and the usual law enforcement data search than first meets the eye.  In the standard law enforcement search, the government establishes the relevance of its inquiry and is then allowed to collect the data.  In the new collection-first model, the government collects the data and then must establish the relevance of each inquiry before it’s allowed to conduct a search.

If you trust the government to follow the rules, both models end up in much the same place.