Judicial Wordplay and the NSA

In my post the other day about the blockbuster leaks regarding NSA surveillance, including the alleged PRISM program, I even cited some case law: In re Directives [redacted text] pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1015 (2008). I found this case on Westlaw and didn't realize at the time that is one of the very few decisions that has ever been published out of the FISA court.

I joked about how there was even a redaction in the case title—the name of what I called the "brave service provider" who had challenged the NSA procedures on behalf of its customers. Today we learned the identity of that service provider: Yahoo!

For once, the exclamation point is appropriate. I'm almost tempted to put one of those Spanish upside down exclamation points in front of it for good measure.

Anyhow, I was perusing the opinion again today, and noticed this passage:

The [Protect America Act] was a stopgap measure. By its terms, it sunset on February 16, 2008. Following a lengthy interregnum, the lapsed provisions were repealed on July 10, 2008, through the instrumentality of the FISA Amendments Act of 2008, Pub.L. No. 110-261, § 403, 122 Stat. 2436, 2473 (2008). But because the certifications and directives involved in the instant case were issued during the short shelf life of the PAA, they remained in effect. See FISA Amendments Act of 2008 § 404(a)(1). We therefore assess the validity of the actions at issue here through the prism of the PAA.

We now know exactly what that "prism" was. I have no doubt that this wordplay was intentional, given the cheekiness of the rest of the opinion and that Judge Selya, the author, is well known for his "distinctive writing style."

Perhaps the rest of the opinion deserves a very, very close reading to see what other secret messages it contains.

"Jeffrey Toobin pledges to end predictions"

According to Politico, Mr. Toobin has made yet another wrong prediction about the Supreme Court:

the CNN legal analyst and New Yorker staff writer on Thursday made another prediction—although one much less assertive than his inaccurate Obamacare declaration of last year—about the Supreme Court: On MSNBC’s “Morning Joe,” Toobin said “very likely we’re going to get the affirmative action case” today.

Wrong. As a result, Toobin jokes that he is now going "to make all [his] predictions about the past."

The Gillette-Torvik Blog considers that a victory. But we know it won't last.

Jai Alai? Really?

Seth Stevenson at Slate is going to cover the trial of alleged Boston crime figure Whitey Bulger. Mr. Stevenson's coverage begins here. As Mr. Stevenson notes, Mr. Bulger is accused of a number of crimes. One crime called to mind an episode of "Man Men." Mr. Bulger is accused of murdering a businessman in 1981 as part of an attempt to take over the World Jai Alai association. Was there enough money being made in jai alai that alleged mobsters wanted in on the action? I wonder if the defense to that particular charge will be that Mr. Bulger was not stupid enough to believe he could make money on a sport that virtually no one plays, follows, or knows anything about.

I'm just going to go ahead and call it.

The 2016 presidential election is more than three years away. Nevertheless, people are thinking about it.  For example, Dan Balz at the Washington Post has this piece about how New Jersey Governor Chris Christie would be a good Republican candidate for president. Among other things Governor Christie is known for publicly praising President Obama's response to Hurricane Sandy in the closing days of the 2012 election. Many Republicans feel this praise hurt Mitt Romney's chances to win the election.

I understand that the future is unknowable and virtually anything can happen. But unless every other Republican politician dies between now and 2016, I do not believe there is any chance that Governor Christie will be the GOP nominee for President. During the primaries, Republican voters will select a candidate, any candidate who has not publicly supported President Obama before they vote for Governor Christie.

Happy 50th birthday to the Equal Pay Act.

The Equal Pay Act turns 50 today. With certain exceptions the act outlaws employers using sex as a reason to pay employees differently when the jobs held by the members of the opposite sex requires equal skill, effort, and responsibility, and which are performed under similar working conditions. According to this, at the time the act was passed women were only getting paid about 59% of what men got paid. That figure has risen to 77% as of 2011. While progress has been made, a pay gap exists

A weighty (yet virtually weightless) issue.

Our Reader(s)™ might be excused for thinking that all Mr. Torvik and I do is discuss weighty matters like D-Day and domestic surveillance. However, as this Conversation™ demonstrates, we occasionally have a lighter touch here at the Gillette-Torvik Blog.

The missing check: the plaintiff's bar

The Guardian and the Washington Post broke blockbuster stories this week about the NSA using cooperative (some would say pliant) corporations to gather and mine electronic data such as phone records, emails, VOIP, etc.

Over at the Volokh Conspiracy, "national security conservative" Stewart Baker does his best to defend the NSA:

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.  I realize that some folks simply will not trust the government to follow those rules, but it’s hard to imagine a system with more checks and restrictions and doublechecks than one that includes all three branches and both parties looking over NSA’s shoulder.

In theory, you could add the check of exposing the system to the light of day, but that means wrecking much of its intelligence value. Or you could simply prohibit the collection-first model (and lose the ability to spot terrorism patterns by matching disparate bits of data). I doubt that those “solutions” are worth the price.

As usual, Mr. Baker is laughably incorrect. It's nice that he pays at least lip service to the idea of transparency before swatting it aside. But he hasn't thought it through. One of the major problems with the current legal apparatus is that judges on the FISA court are making secret interpretations of the law. Thus, people like Congressman James F. Sensenbrenner, who largely drafted the Patriot Act, can be "extremely disturbed" at the way it is being secretly used by law enforcement. This can happen because secret rulings provide no check on government power. If the FISA court judges deny a warrant or a request, the government will just tweak it and come back. Eventually the government will get what it wants because the FISA court judges, like everyone else, care more than anything about just being left alone.

And then, of course, there is the fact that the intelligence courts just kind of have to take the government's word on a lot of stuff. For example, there's a case from the FISA appeals court that rejects a brave service provider's Fourth Amendment challenge on behalf of its customers to a government directive to spy on them. Here's part of the reasoning:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. 

In re Directives [redacted text] pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1015 (2008). (You know you're in trouble when there's redacted information in the case title.) Well, at least now we know where to stuff those "government assurances."

The redacted nature of the opinion-making also leads to this:

A Parting Shot. The petitioner fires a parting shot. It presented for the first time at oral argument a specific privacy concern that could possibly arise under the directives. This parting shot may have been waived by the failure to urge it either before the FISC or in the petitioner's pre-argument filings in this court. We need not probe that point, however, because the petitioner is firing blanks: no issue falling within this description has arisen to date. Were such an issue to arise, there are safeguards in place that may meet the reasonableness standard. We do, however, direct the government promptly to notify the petitioner if this issue arises under the directives.[10]

Id.

I have never read a more Kafkaesque passage in the Federal Reporter. What was the "specific privacy concern" that the service provider raised at oral argument? Apparently even the argument is top secret, because the opinion doesn't say. (It's presumably explained in footnote 10, which is redacted.)

But let's leave aside transparency, because Mr. Baker completely ignores another obvious "check" that is missing against the NSA surveillance program: civil liability. In 2008, Congress passed a law (the FISA Act Amendments of 2008) providing blanket (and retroactive!) immunity for any one or any company who is sued "for providing assistance to an element of the intelligence community." 50 U.S.C. § 1885a(a). Such cases are to be "promptly dismissed." As a result, there isn't even a threat that Google, or Verizon, or any of the other companies that have been providing assistance to the NSA could be sued. If they are, they can just file a one page motion to dismiss and it will be immediately granted.

These companies are in the business of making money. The threat of huge class-action lawsuits can certainly provide a real check on their actions. But Congress removed that threat in 2008. Now the information companies have literally nothing to lose by cooperating with the government because they cannot be sued for doing so. On the other hand, the government can obviously drive up legal costs and threaten them with civil contempt if they don't cooperate. So it's no surprise that the government has now what it assured the FISA court it didn't have in 2008: a database of incidentally collected information from non-targeted United States persons.

Take a minute to remember.

69 years ago today, Allied Forces invaded France to free it, and Europe, from Nazi occupation. Among the thousands of American, British, and Canadian soldiers who participated in the Normandy landings was an lieutenant in the Army Rangers named Gerald Heaney. After the war Lieutenant Heaney went back home to Duluth, Minnesota where he practiced law until President Lyndon Johnson named him as judge for the United States Court of Appeals for the Eighth Circuit. Many would say that Judge Heaney was one of the greatest judges to serve on the Eighth Circuit. In 2007, Congress named the federal courthouse in Duluth after him.

Testing a new power: Charles Dingell, Jr. should retire

On Tuesday, I called for Ohio State University president E. Gordon Gee to retire. Thirty minutes later, he did. Behold: the power of the Gillette-Torvik Blog.

Today I read an article about Michigan Congressman Charles Dingell, who is serving his 30th term. Tomorrow he will become the longest-serving member of Congress ever. It will be his 20,997th day on the "job."

Mr. Dingell is 86 years old. He should retire.

A DNA-swab success story reveals a terrible truth

As I mentioned the other day, the Supreme Court has ratified the practice of taking a DNA sample from all people accused of "serious crimes." Here in Illinois, Cook County was waiting for the Court's decision to implement this very practice. But officials in Virginia did not wait, and this has apparently led to the freeing of an innocent man in Lake County, Illinois:

Jerry Hobbs had been sitting in Lake County Jail for almost five years awaiting trial for the slayings of his daughter and her friend when a man was arrested on unrelated felony charges in Virginia, a pioneer of testing suspects upon arrest rather than waiting for a conviction.

A DNA sample was taken from the man, Jorge Torrez, and it went into a national database, authorities said. It matched the sample from the scene of the Lake County double slaying, according to court records, and Hobbs was soon freed. Torrez, 24, awaits trial in the killings.

We shouldn't be naive about the costs these criminal procedure rights. When we expand rights of privacy and the rights of the accused, we make it more likely that the guilty will go free. Thus, the classic formulation that it is better that nine guilty men get off than one innocent man be convicted.

But the sad reality of our criminal justice system is that the innocent are too often convicted on flimsy or nonexistent evidence. The main culprit here, it seems, is the false confession. It is hard to imagine why someone would confess to a murder or rape he didn't commit, but Mr. Hobbs' case provides a chilling example:

Police immediately suspected Hobbs after he found his 8-year-old daughter, Laura, and her 9-year-old friend Krystal Tobias stabbed to death in a Zion park in May 2005. Hobbs, then a recent transplant from Texas with a long criminal record, denied killing the girls for most of an interrogation that involved several officers and stretched across about 24 hours, police testified.

Late in his questioning, Hobbs said, "I did it. Just write it down. Start this thing and send me to the judge," according to court records.

We now know that Mr. Hobbs just caved in to the pressure because he wanted to get out of the room and go on with his life, even if just for a minute. It seems that mankind's most overpowering urge is just to be left alone. We can hold out for only so long, but eventually we will falsely confess to savagely murdering our own 8-year-old daughter if it means we can just be left alone for a few minutes.

Police interrogations stretching for 24 hours take advantage of this fundamental human flaw to coerce these false confessions. Why do the police do it? My theory is that they, too, do it so that they can get on with their lives and be left alone. You would think after so many false confessions—perhaps most infamously the false confessions of the Central Park Five—the police would change their tactics. But the police are human too. Deep down, they are more interested in just going home to their families than they are in making sure the confessions they get are true. A confession, whether true or false, solves the case and lets everyone get on with their lives. Once you realize that a man will falsely confess to murder just to be left alone for a few minutes, it becomes easy to understand how a cop will use tactics known to produce false confessions. We are all very weak.

This fundamental weakness is why I oppose putting the DNA of innocent people into a nationwide criminal database. The intentions are no doubt pure, and the benefits are real. But you don't have to be paranoid to worry about how a big government full of weak human beings will abuse this information. It's just too much, and the possibilities are too terrible. Just leave me alone.