Adnan Farham Abdul Latif should have been released from Gitmo in 2004, when the Pentagon conceded that they screwed up when the snatched him from Pakistan to fill their daily quota of fake terrorists.  He should have been released in 2009, when, by unanimous vote of all United States intelligence agencies, it was concluded there was no reason to hold him.  Instead, Latif remained a prisoner.

Latif is now free, but not because the “land of the free” finally did the right thing. Latif is dead.

Via NBC’s World News :

The Guantanamo detainee found dead in his prison cell last weekend had been cleared for  release three years ago by an Obama administration task force that concluded that his detention was no longer necessary, NBC News has learned. 

The disclosure that the detainee, Adnan Farham Abdul Latif, a 32-year-old Yemeni citizen, had been approved for repatriation could raise new questions about the handling of his case and those of scores of others held in Gitmo who also have been cleared for release. Instead, the detainees remain stuck in legal limbo in the U.S. prison for suspected terrorists with no prospect for getting out any time soon. 

At 32 years old, Latif had spent about a third of his life in an American prison.  He didn’t take well to it, and it didn’t take well to him either.

Military officials say that Latif had been a disciplinary problem: He had been on a hunger strike that he ended in June and recently had hurled a “cocktail” of food and bodily fluids at guards, causing him to be placed in a special disciplinary cell in Camp 5, where he was isolated from other detainees.

Isolated. Sedated. After all, maintenance of discipline and control is critical for a prison to run smoothly.  Everybody knows that.  Who does this guy think he is being all pissed off at America for holding him since 2002, having whisked him out of Pakistan and put him in an American-made orange jumpsuit.  So what if he did nothing to justify a decade in prison; you can’t expect to hurl a “cocktail” and get away with it.

And so they put Latif in the hole, where he was found dead.  And nobody knows why, because it’s not like they have cameras on every body and every place in Gitmo.  But these things happen.

Latif’s death is the ninth at Gitmo since the U.S. prison for terrorists opened in January 2002 and the third since last year. The case is now the subject of an investigation by the Naval Criminal Investigative Service. Military officials say that Latif, who had no serious medical problems, was found unconscious and unresponsive in his cell at Camp 5 on Saturday afternoon. After efforts to revive him failed, he was rushed to a hospital at the base and pronounced dead. An autopsy was conducted on Sunday, but the results have not yet been released.

Back in 2002, we were all filled with anger.  So when somebody told somebody who told an American that a guy was a terrorist, that was a good enough reason to snatch him and throw him in Gitmo.  They didn’t need charges, because they were enemy combatants, and that was reason enough.  Grab him now and let someone with a higher pay grade sort it out later.  Until then, at least we’re proving to the world that we won’t let the terrorists get away with this.

And they did sort it out, though no one cared. And even though they sorted it out, and concluded that they grabbed a 22-year-old for no good reason, they held him.  And no one cared.  And ten years after he was grabbed, he was in isolation because he had the audacity to be displeased with losing a third of his life to American Exceptionalism even though there was no reason for him to be there. And no one cared.

And now Latif is dead. And no one cares.

Had someone named Smith been snatched and taken to a prison in Iran, we would care.  We might send in Seal Team 6, or maybe drop the bomb.  And if Smith was found dead in a hole, it would be the lead story on every network that night.  There would be outrage on Sunday morning television, and presidential candidates would be spitting at the camera. 

But this kid in Gitmo has the misfortune to be named Latif instead of Smith.  And misfortune to come from Yemen instead of Missouri.  And so his life means nothing to Americans. 

Eventually, the results of the autopsy will be in, but there will be no media reports about what really happened to Adnan Farham Abdul Latif.  How do I know this?  Do you know how the other eight died?  Do you care?

Cameras in the courtroom is controversial enough. But in the holding cell? When a defendant first meets his lawyer to talk about the case?  That’s where a new National Geographic show, Criminal Defense: And Justice For All, starts. 

After all, there is the long-playing television reality show, COPS, with the catchy Bad Boys song, showing police going from one trailer park to another, keeping the streets safe for people who don’t shop at Wal-Mart.  With the cameras rolling and lights flashing, nobody ever gets beaten for kicks, so the show isn’t a total waste. Why not a reality show about what criminal defense lawyers do? 

The “actors” are from the Brooklyn Legal Aid Society and the streets of Kings County.  In the best of worlds, it’s a juxtaposition to the excitement of real life cops and robber, showing the tedium of real life public defenders trying to defend real life defendants from false accusations and overreaching prosecutions.  What could possibly go wrong?

Gideon, another real life public defender, wonders how well this show will depict reality :

The show follows public defenders at the World Famous© Brooklyn Legal Aid as they represent clients during the course of their humdrum, everyday routine while doing things like climbing ladders at crime scenes to prove that the cops are lying. We all do that, right? Whether this show accurately captures the life of a public defender and the day-to-day workings remains to be seen.

But deeper concerns abound:

Over at Legal Ethics Forum, Brooks Holland, who I can only assume is a LawProf, asks an interesting question : are these shows good or bad? Specifically:

A great chance to profile the important, difficult, and under-valued work of public defenders, and to humanize the experience of clients and other individuals who navigate our criminal justice system. At the same time, I wonder about confidentiality, even with client consent, and how a TV camera could affect client representation and advocacy, consciously or unconsciously. What do folks think of the pros and cons of this kind of show—should lawyers agree to participate?

I’d love to see what the confidentiality waiver looked like for participants. Will prosecutors try to argue that any and all confidentiality was waived? Will lawyers be tempted to be on their best behavior and actually perform their jobs and will judges and prosecutors play nice because there’s a camera around? Will people get the wrong idea about just how messed up the criminal justice system really is?

There is little doubt in my mind that the camera changes things.  In time, players get used to the camera over their shoulder, and return to their normal behavior, but the players aren’t long term television stars and never reach the point where the cameras are forgotten. But that’s really not a huge concern. So what if it’s a phony, a television show that sugarcoats reality and has all the players on best behavior.

The issue of confidentiality is huge, and Gid only scratches the surface of the problem.  There is no way a defendant in a holding cell awaiting arraignment can waive confidentiality, no matter how long and detailed the waiver may be, without the advice of independent counsel.  When you see a Legal Aid lawyer meeting with her client for the first time, all captured on the camera, did he have another lawyer, not with Legal Aid, advise him of the implications and consequences? 

Gid asks whether that will vitiate privilege altogether.  It would certainly appear so. The price of fame, and a waiver, is expensive, and that includes confidentiality. Why wouldn’t a prosecutor argue that the defendant waived confidentiality?  And why wouldn’t he prevail?

In a second segment, the video trailer shows a Legal Aid lawyer, Adam, doing a crime scene investigation (which beings with an advertisement, because NatGeo wants a quick buck like everyone else).  Gid gets a bit snarky about the lawyer playing James Bond, climbing up fire escapes in the search for truth.



Drama aside, you learn at the end that he thinks his pictures will have a big impact on the defendant’s trial, which starts the next day.  He notes that the defendant has been in jail for a year awaiting trial.  Did it dawn on anyone that the lawyer should have inspected the crime scene a year ago?  Did it occur to anyone that he’s about to go on trial and has no theory of defense yet?  He’s first interviewing witnesses the day before hearing and trial?

Did it occur to anyone that had he done his job promptly, perhaps he could have persuaded the prosecution that the defendant wasn’t the perp and to drop the case?  Maybe get his bail reduced?  And how does he plan to get his pics admitted into evidence?

No doubt the video is meant to show the great lengths to which the Legal Aid lawyer will go to prove his client’s innocence. What it actually shows is that a defendant sat in jail because a lawyer neglected to do his job until the day before trial.  And what if he made that trip and confirmed what the cop claims? 

For that matter, what if the Legal Aid lawyer interviewing her client in the pens got an admission instead of a denial?  Or what if she pressed his denial, and got that “you got me” face, with the big, broad smile when the defendant concedes he just lied to his lawyer about “nothing happened” and comes clean?

Is 15 minutes of fame worth 15 months in the pokey?  Or 15 years?

Someone at the Legal Aid Society thought this was a good idea, a way to show the heroics of public defenders.  But criminal defense isn’t about the lawyer, even if they’re public defenders with their perpetual inferiority complex.  It’s about the defendants, and whoever approved of this failed to consider what they were trading off for their moment of glory.

Granted, fictional dramas about criminal defense are nonsensical, and give the public little clue about the reality in the trenches.  But then, does the public’s curiosity (assuming they are curious) about the human beings behind the accusations trump the lawyers duty to their clients? It never has before, and it surely doesn’t now. And even recognizing this problem, not every criminal case has a fairy tale ending, reducing what appears to be cherry picked footage to just another reality show fantasy.

H/T @PaleoRage

Nancy Gertner is one of the few criminal defense lawyers who made it to the federal bench without forgetting where she came from.  Now that she’s retired to Harvard Law School, she has the freedom to give us the occasional smack back to reality, and does so in a post at Cognoscenti.

There is a canned, formulaic newspaper story about any criminal case. It can be repeated in every prosecution, no matter what the crime, no matter who the defendant.

Here’s how it goes: Judge X sentenced defendant Y to five years (or whatever the number). The prosecutor argued for 10 (or higher than the number the judge gave). The victim’s family is appalled. When interviewed, they stridently proclaim their outrage at the judge. The press then echoes that sentiment.

All concerned assume that the right sentence is the one the prosecutor wanted or the victim demanded. So when the judge sentences the defendant to less, they cry foul. Another lenient judge! Another liberal! Another blow against the “tough on crime” mentality!

Sure, there are occasional exceptions to the rule, but it’s reporting made easy to scream outrage and turn an otherwise humdrum article into a cause célèbre for justice for [fill in the blank].  It turns a page 37 story into a front pager, maybe even an editorial about the deplorable state of the judiciary.  And the point is that some punk prosecutor’s cries for 79 years makes it the bar by which a sentence is judged. 

Judges have to explain the sentences they impose. Not so prosecutors.

The prosecutor cannot be so monitored. He picks a number and does not have to explain it, beyond justifying it in the particular case. There are no public, transparent guidelines for prosecutors, no Sentencing Commission, no standards. He cannot be easily reviewed to see if he is biased, choosing mandatory minimums for defendants of color more than for those who are white, or simply going with his gut.

It’s as if prosecutors have some magical way of plucking a number out of thin air that makes it real, and makes the media embrace it as the proper measure of punishment. 

The by-product of this sentence inflation is sentencing creep.

Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers – five, 10, 15, 20 – without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless.

These numbers only reflect the public’s and the district attorney’s spleen – and so whatever the number was before the sentencing of this defendant, they “must” be higher in the next case, with the next defendant. There is, in short, no end.

As I’ve pondered many times, what makes a sentence of 17 years right, but a sentence of 16 years, six months, wrong?  After all, the parsimony clause commands that a defendant be sentence to no more than is necessary. So is that last six months truly necessary?  Why?

More significantly, our collective sense of harshness, disproportionality, has shifted markedly over time, and not in a good way.

Twenty years ago, we considered five years a very long sentence. In most European countries that is still the case. But now, in the United States, we increase sentences by fives. It’s like a betting game. Five does not send a message if it is what the defense lawyer wants. OK, I’ll raise you five more. Why five? Why not 10?

Sentences that used to be measured in years are now measured in decades.  How did it happen that a five year sentence, an extraordinary length of time for a person to be imprisoned, separated from his life and family, because a slap on the wrist?  And yet that’s how it’s perceived today.  It used to be that a sentence of greater than ten years was huge.  Today, it’s barely adequate for jaywalking.

The public not only has a short memory, but one that’s never been particularly good at proportionality when it comes to the damage inflicted on others.  And the media’s need to inflame, to create the sensational in its race for eyeballs, is insatiable.  But the fodder for the public’s angst and the media’s outrage of the day are actual human beings. 

When was the last time a reporter demanded that a prosecutor explain why he asked the court to sentence a defendant to more than 20 years in prison?  When was the last time a reporter followed up by demanding a substantive rationale, beyond the visceral retribution because the crime was so horrible?  And how many readers of that reporter’s story say to themselves, five year of a life is a very long time to lose?

While Judge Gertner remembers what it was like to sentence a human being to decades in prison, other former federal judges, like Utah lawprof Paul Cassell, pound the misery of victims, demanding constantly greater flesh to assuage their suffering.  How long before some prosecutor intones  Jeralyn Merritt’s ironic joke, life plus cancer, as if a judge should really impose it as a sentence?  And how long before some reporter writes about it as if anything less is a travesty of justice? And readers nod their empty heads in agreement?

Unless we heed Judge Gertner’s warning, this is where it will eventually go, as we run out of lifetimes to sentence people. 

While dozens of upstarts in the legal services market made a  splashy entrance before swiftly falling into the abyss of worthlessness, Avvo has stuck.  It  wasn’t at all clear whether Avvo, the self-proclaimed lawyer rating service, justified by its altruistic claim that it would bring transparency to lawyers for the benefit of legal consumers, would survive.  It’s still there.

Over time, it shifted from lawyer rater to marketing promoter,  quietly changing its focus for the true purpose of any startup, to make a buck.  Advertising makes money. Rating lawyers (and later physicians and dentists) makes squat.  Yet, the ratings remain, without which Avvo would be no different than the rest of upstarts.

In the beginning, like many curious lawyers, I grabbed my Avvo profile and put in some stuff to see what I could make of my rating.  It started the day as a 6.5 and ended as a 10, the highest rating Avvo gave.  We had some fun playing with Avvo that day, but our work was done and that was the last time I bothered screwing with my profile.

When a lawyer is rated AV by Martindale-Hubbell, the rating remains for the rest of his career.  Yesterday, I learned that Avvo ratings don’t work quite the same way.  I was told that my Avvo rating, 10 as of the end of business on day 1, had decayed.  As of yesterday morning. I was a 9.7.  I didn’t feel any less competent, so I asked my pal and Avvo’s general counsel, Josh King, what I did to become a worthless, crappy 9.7, when once I was a masterful 10.

Aside: I actually sent an email to both Mark Britton, Avvo’s CEO, and Josh.  While I heard back from Josh right away, not a word from Mark, which made me sad as Mark and I used to hang out together in warm climes.  Sadly, I think Mark doesn’t likes me anymore since I told him his baby was ugly .

The answer is . . . it depends.  The Avvo Rating algorithm takes into account many biographical details in a lawyer’s background, and there is an “aging factor” that goes into how those details impact the rating.  As time passes, years of experience will count more, and past misconduct will count less.  Speeches, publications, awards, etc will all contribute less as time marches onward.  So depending on the score and the amount and type of information in a lawyer’s profile, the score could go up, go down or stay the same.

The technology gods giveth. The technology gods taketh away.  And when the technology gods happened to wear a black a turtleneck and came up with the coolest of shiny toys to win the hearts of the youth, it’s all wrapped up in a patent owned by Apple. 

Via RSN :

Apple has patented a piece of technology which would allow government and police to block transmission of information, including video and photographs, from any public gathering or venue they deem “sensitive”, and “protected from externalities.”

In other words, these powers will have control over what can and cannot be documented on wireless devices during any public event. And while the company says the affected sites are to be mostly cinemas, theaters, concert grounds and similar locations, Apple Inc. also says “covert police or government operations may require complete ‘blackout’ conditions.”

There are no doubt good and legitimate uses for this technology.  And then there is the ability to use this tech for evil, to foreclose the ability to video cops doing bad things, for example.  But like so many uses of tech, it’s largely perceived by the public as good or evil based on promotional rhetoric.

“Additionally,” Apple says,” the wireless transmission of sensitive information to a remote source is one example of a threat to security. This sensitive information could be anything from classified government information to questions or answers to an examination administered in an academic setting.”

How great is that! This tech can thwart threats to our national security!  Nobody wants our national security threatened. That would be unAmerican.  So how would this defender of our national security work?

Apple patented the means to transmit an encoded signal to all wireless devices, commanding them to disable recording functions.

Those policies would be activated by GPS, and WiFi or mobile base-stations, which would ring-fence (“geofence”) around a building or a “sensitive area” to prevent phone cameras from taking pictures or recording video.

Pretty cool, right?  Create a “geofence” around anything sensitive and there’s no way a smartphone can record it and send it off to Russia. Or China. Or Youtube.  And who would control this magic?

Apple may implement the technology, but it would not be Apple’s decision to activate the “feature” – it would be down governments, businesses and network owners to set such policies, analyzes ZDNet technology website.

After all, Apple is in the inventing cool stuff business, not in the defending the nation from threats business. That would be a government job.  At least we can all take comfort in knowing that the government would never use this technology to silence the recording of wrongdoing or things done by those “few bad apples” that would otherwise appear swiftly on the internet and alert the rest of us to what our government is up to.

It’s been a great ride, watching videos of cops lying and government malfeasance on the interwebz.  Hope you enjoyed it.  But with the help of Apple, the Halcyon days are over.  Just as it was before, it never happened until there was video.  And then the government flips the switch and activates this geofence, it will never have happened again, and we can get back to a society were cops do no wrong and never lie.

Thanks, Apple.  Got any more cool, shiny things in store for us?

At Inside the Law School Scam, Colorado Lawprof Paul Campos posts about a letter he received from a 2010 law grad.  According to the letter, he was an Ivy League undergrad, a top five law school graduate, and is now a fixture in his mother’s basement.

Since graduating in 2010, I’ve lived with my parents.  I have about as much debt as you’d expect.  I really want to be able to move on with my life, live like a grown-up, not be broke, and be able to be proud of my career.  I’m just not sure how.

I recently ordered test prep books for the GMAT, so that I can apply to full-time MBA programs.  I’m great at standardized tests, so even though business school admission isn’t as numbers-based as law school (I wish), I think I might have a good chance of getting into a top MBA program. 

Aside from business school, I don’t have many other good ideas.  I’ve thought about starting my own firm- probably mostly criminal defense, but I’d take whatever work I could get.  But the problems with that are: 1) I’m unsure whether I’m qualified, at least by my own standards; and 2) I know many small firms struggle to bring in enough business.  Since my biggest priorities are 1.) not be poor; 2.) move out of bedroom; and 3.) end unemployment deferment of loans, struggling to start a firm with the hope that if I’m successful I might clear $40k after a year doesn’t seem like a very good option.

During my phone call, we spoke of the baby lawyers hanging out in the hallways trying to catch the attention of a defendant’s mother with $100 in her pocket.  We spoke of n00bs, barely competent if at all, taking felonies for $1500 total.  He didn’t blame them, knowing they had loans to pay.

I planned to practice criminal defense, immigration, civil rights (police and corrections misconduct), and consumer law (debt defense and FDCPA).  My essential plan was to finance contingency civil rights work with revenue from flat-fee criminal, immigration, and consumer work and contingency FDCPA work.

Long time readers may recall that I’ve discussed this before, but for the benefit of anyone unaware, it’s worth repeating.  If you have something to say about a post at Simple Justice, twitting about it is not the way to engage in a conversation.  The phrase I’ve come up with to gently make this point is to respond that twitter is fleeting; leave a comment.

This occurred to me again yesterday due to some reactions to my post about Joel Rosenberg.  There were a number of very kind thoughts expressed about Joel on twitter, but few would ever know.  More importantly, Joel’s wife, Felicia, would never see them.  If anything, my hope would be that Felicia would know that Joel’s memory survives, and my guess is that the twitterers would want that as well.  So what are they thinking?

A twit* about a post makes no sense.  Twitter is a different platform, as are Facebook and, for the three people who just joined the internet last week and don’t know much about it, Google+.  It’s not that it’s evil to use a platform other than the one where the thing about which you’re commenting exists, but that it’s ineffective.  If there is a conversation happening in one room, talking in another room is a waste of time. You aren’t part of the conversation.

Twitter is particularly worthless when it comes to offering thoughts, deep or angry, nice or angry, about a blawg post.  Only people who follow you or to whom you direct your twit will ever see it, and then only for an instant.  Then it goes down the list and fades into obscurity.  So you’ve got a really cool thing to say?  If no one sees it, then what’s your post.  Think, “if a tree falls in the forest and there’s no on there to hear it,” sort of thing.

I have tried, in my inartful way, to make this point over the past few years, to no avail.  Some people have reacted poorly to my suggestion, outraged that I am attempting to dictate where they are allowed to comment on my posts. Others can’t be bothered. Twitter is easy, far easier than expressing fully formed ideas (especially since the new, horribly difficult captcha that my program provider has rammed down my throat). 

But twitter is fleeting.  It’s there, then it’s gone.

My initial antagonism toward twitter has given way to my occasional use, and it can be fun at times.  While I have accounts on Facebook and Google+, I never use them and they’re merely placeholders.  If someone writes something to me there, I will never see them. But I usually see twits directed to me.  I’m not unappreciative of the twits that react to posts here, but it just seems to much more useful to post a comment, so that anyone reading the post can see the thought as well.  Maybe it’s a great idea. Maybe not. But it just makes no sense to me for someone to try to discuss a blawg post on a different platform.

And while we’re on the subject, twitter is a really lousy platform for discussion.  Any idea that requires more than 140 characters is lost, or become the content of the dreaded serial twit, which defeats the whole point of twitter.  This is particularly true of people new to twitter, who twit to people they don’t know and come off as either antagonistic or demand a response that would require 10,000 words.  They don’t get the medium.  I just ignore them.

But if you’ve got something you think is worthy of saying about a post at SJ, I urge you to do so in a comment here rather than a twit.  I, and many others, usually enjoy the conversation. It’s one of the features here. If you talk about it elsewhere, then it contributes nothing to the discussion and as far as anyone else knows, it never happened.

* It’s become my habit to call those things we do on twitter “twits.”  I didn’t like the word “tweet” in the beginning, and still don’t. You may think me a complete jerk for doing so, but that’s what I choose to do.

I’ve been informed, usually be a youthful reader, that they aren’t called “twits,” but tweets, because they assume I’m either too old or stupid to realize.  I’ve also been informed that my choice of calling them “twits” is so disturbing that they can’t bear to read my posts.  Anyone who feels this way is urged to go elsewhere immediately, for both our sakes. I call them “twits” and plan to continue to do so. I am not 12 and do not favor cutesy internet lingo. You are not my tweeples. If you can’t get past it, we have nothing more to discuss.

It’s amazing that this hadn’t happened before, given the message hammered home time and again by Homeland Security.  If you see something, say something.  Or if you want to get revenge on someone who pissed you off, say something.  Or if you’re a blithering idiot and think it would be hysterically funny, say something.  Then sit back and enjoy the show.

Via Kevin Underhill at Lowering the Bar :

Hey, you know what’d be a hilarious prank? Calling the airport to claim (falsely) that a specific traveler is trying to get liquid explosives past the TSA and onto a plane. If the plane has already left, they’ll probably turn it around and arrest him when it lands! Ruining everybody’s day for no reason at all! Hah! Hilarious!

This morning a US Air flight from Philadelphia to Dallas was indeed turned around after some jackass called in a fake bomb threat, a call that unlike most such calls named a specific person. The call was made about 7 a.m., but the plane had already left by the time the warning was passed on. The usual cast of thousands (all heavily armed) surrounded and boarded the plane after it landed back in Philly, extracted the suspect and searched him and his luggage. Ultimately they found nothing, and cleared the flight to proceed. “It was a hoax all the way through,” an official said.

Unsatisfied with the hilarious combination of making a planeful of people miserable and mobilizing an army in the expectation of finally catching someone doing something bad, to prove to the public the value of the TSA, Kevin goes on to spell out a few inherent issues with how this was handled.

Note that no one involved seems to have taken the position that, hey, nothing to worry about, because even if this is true he’ll never get past the TSA with liquid explosives; that’s a crack team on which we can safely rely. No one was detained by that thought for even a moment.

Also, note that the call came in “about 7 a.m.,” and the information still had not been passed on by the time the plane departed at 7:39. That is, even though they had a specific name of a possible terrorist and so presumably knew the specific flight he would be on, it took over half an hour to get this information from a phone in the airport to another location in that same airport, by which time the plane was well on its way.

Nor does it appear that anyone thought, wow, you know what, this is probably a hoax, and calling the plane back now really wouldn’t do any good anyway. If the guy does have a bomb, he’ll just set it off when he sees the plane turning around. If he doesn’t, we’re ruining everybody’s day for nothing. There’s no need to worry about him taking over and crashing the plane into something, because if he uses the bomb to blow the cockpit door open then that’s pretty much a done deal. So why doesn’t somebody just meet the plane when it lands and we’ll check things out then?

And anyway, the have all that cool SWAT stuff, and it would be a shame if they didn’t get to use it.

It was subsequently revealed that this wasn’t a hoax for lulz, but revenge.

T]he Philadelphia Enquirer is reporting the call was allegedly placed by a 26-year-old Philadelphia man who was upset about a “compromising” photo the passenger had posted on Facebook depicting himself and the caller’s girlfriend. (She was the passenger’s ex-girlfriend, which is presumably where he got the compromising photo.)

According to the report, the caller, who I’ll refer to as “Kenny Smith” because that’s his name, called authorities from a pay phone at about 7:20 a.m. the morning of the flight to make the threat. Smith was at least clever enough to avoid using his real name, although I can’t say that his alias choice, “George Michaels,” is especially convincing.

Yet again, Kevin has done a masterful job of recounting TSA zaniness that not only showcases the stupidity, but the incompetence, of our protectors.  The problem for the TSA, of course, is they’ve got their nuts in a vice of their own making. Having justified their existence and intrusiveness on the basis of protecting us from terrorists, the possibility that a terrorist not of the FBI’s making might explode a bomb on a plane is intolerable.  It can’t be allowed, no matter how extreme (and poorly handled) the reaction may be.

Here, the hoaxster was a moron. While the joke probably wasn’t funny to the passengers on the place, and, had one of the multitude of armed saviors accidently tripped and blown away a few dozen passengers, their families, few hoaxsters concern themselves with such eventualities. After all, what’s a few dead bodies compared with potential hilarity of nailing one’s love rival?

Had the hoaxster been a bit more thoughtful about his handling of the joke, he would have not only have caused a similar reaction, maybe even  scrambling some fighter jets to take down the plane before it reached Detroit, but he could have done so without getting caught.  A well-placed anonymous call isn’t all that hard to do, especially if the caller isn’t a total moron.

Didn’t anyone at the TSA think about this possibility?  No doubt they did, but what would you have them do? Ignore calls they suspect to be hoax’s and risk being wrong, thus revealing that this is just a huge farce and monumental disaster?  The only aspect of this story that seems truly shocking is that it doesn’t happen all the time. 

And if it does, you can bet that eventually someone will accidently pull the trigger and compel a brief explanation by a government spokesman about how they were just following procedures.  But at least we can rest assured that the dead folks were killed by good, well-meaning Americans, and not those terrible terrorists.

It’s traditional to remember someone who has passed by an unveiling, a public memorial to his memory.  It’s been a  little more than a year since the passing of a dear friend to me and this blawg, Joel Rosenberg.  I’ve thought of Joel, or Jdog as he was jokingly called around here, often over the past year, his wit, wisdom and skepticism challenged me regularly. 

Yesterday, someone who called himself “Bill” and left a phony email address left a comment on an old post about Joel. 

I’m glad this fat, POS is dead. Joel was a complete fucktard.
Rest in Hell you retarded, worthless fuckstick!

When the Department of Justice announced that it authorized an extension of authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives to engage in the forfeiture of property related to controlled substances, it seemed like a non-event. At worst, it ended the charade of agencies handing off property to other agencies to do as they will, and wouldn’t make a ripple as far as the victims of forfeiture are concerned.

But the efforts of Eapan Thampy, head of Americans for Forfeiture Reform, who has been guest-blogging up a storm at Radley Balko’s Agitator, has kept forfeiture on my mind.  In a Cato video,  Walter Olson gives a good overview of some of the more outrageous uses of forfeiture.  At the same time, a Tennessee backwater  wants a drug dog to get in on the action, lest they miss out on the gravy train.

Civil forfeiture is a disaster, one of the most abusive, and easily abused, powers the government gives itself. It makes for a good press release and easy justification, as it purportedly takes the profit out of crime. Any government action that can reduced to a pleasing slogan is an easy sell to the public. What’s not to like?

Despite efforts like Eapan’s and Wally’s, the public has little clue what this is all about and why it’s a problem.  After all, there is no advocacy group arguing in support of a drug dealer’s right to keep his ill-gotten gains, and that’s what it’s all about, right?  Theoretically, true, and if the government could manage to limit itself to property that was truly the proceeds of crime, no one would shed a tear.

But it’s a cash machine for the government, justified by what appears superficially to be a worthy cause,

So why bother writing about it?  After thinking more about the DOJs extension of authority to ATF, and despite the fact that this has no practical impact, it reflects the fact that the Obama Administration, by Attorney General Eric Holder, has chosen not to reform the atrocity of civil forfeiture, to honor meaningful due process and to protect the rights of innocent Americans from having the government steal their property under color of law, but rather to make a bad thing worse. 

After the nightmare Bush II years when it came to “tough on crime,” and screw civil rights, the election of Barack Obama seemed to offer “hope” and “audacity,” at least on the constitutional front.  There would be a president in the White House who would appoint federal judges who, although not quite friendly to our arguments, wouldn’t be overtly hostile.  And abuses, from torture to rendition, would be seen through the eyes of a man who appreciated and understood the Constitution. 

It’s bad when people you expect to be antagonistic to your beliefs takes office.  It’s crushing when the man you believe will be better, the only hope you’ve got, is no different. President Obama has taken forfeiture and pushed it even further.

This is not a political blog, and I do my utmost to steer clear of political disputes. This has nothing to do with the arguments favoring one party over another, but has to do with the current administration’s announcement, in the midst of campaign season, of a course of action that further embeds civil forfeiture in our system.  Would the other team do the same, or worse? Perhaps.  But Holder did it now, and made his position clear.

There was once a time when the courts severely frowned on forfeiture. This wasn’t so long ago. But in the course of a generation, it’s become part of our legal fabric, given little thought and allowed, indeed enabled, as a matter of course. It doesn’t have to be this way.

The mere possession of large amounts of cash are presumptively drug-related.  The government made clear in the 1980s that it hated cash, as it couldn’t track it for tax evasion and criminal proceeds purposes. The subsequent use of credit and debit cards followed, where every dollar spent could be easily traced and counted.  Now, anyone found in possession of substantial amounts of cash can expect it to be seized, and the burden is on the citizen to prove that his money is legally derived and untainted by criminal conduct.

The concept has gotten so crazy that cars belonging to one fellow are seized when driven by another who is alleged to be drunk.  They are the “instrumentality of the crime” of drunk driving, even if the owner of the car, who will be the person to suffer the loss, was nowhere in sight.  Or what of the family home that housed the computer on which an obscene picture was found? Instrumentality, baby. The “thing” offends the sovereign, and the sovereign is cleaning up.

I don’t know why I bother mentioning some of the irrationality of forfeiture, as a thorough discussion could take many thousands of words, and the best I can do here is scratch the surface.  My point is that this otherwise irrelevant act by Holder leaves no doubt that our current administration, which tries to distinguish itself from the other guys as the saviors of civil rights, is shown to be a load of crap. Neither team has the slightest interest in slowing down the gravy train, no less stopping it.

I might suggest that the best answer to forfeiture is not to commit a crime, but then, crime has nothing to do with it. And that’s the heart of the problem.  Instead, I hope you don’t have the misfortune to meet forfeiture on some backroad.  And the only thing you can count on is that it’s not going to get any better, as Eric Holder just made clear.