Category: Justice

Peter Thiel’s America

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There are a lot of people out there who support Peter Thiel using his billions to harass Gawker through the legal process because they and its founder and CEO Nick Denton are bad people who practice shallow gossip journalism.

Well, this sort of action most often cuts against ordinary citizens who choose to raise their voices against the powerful as is shown in the case of the $30,000,000.00 lawsuit against activists in Uniontown, Alabam who have the temerity to object to Green Group Holdings and Howling Coyote’s poisoning their water by dumping of millions of pounds of toxic coal ash there:

“We all should have the right to clean air and clean water.”

Would you agree with that sentence? Would you say it yourself? It seems uncontroversial — something kids might be taught in school. Something any of us might say without blinking an eye. Unless, that is, you happened to say it in Uniontown, Alabama — an overwhelmingly Black and poor rural town in the heart of the South’s Black Belt. In Uniontown, it turns out that having the audacity to fight for your fundamental human rights — for instance, by saying the exact sentence above — can get you sued for $30 million in federal court by companies seeking to silence their critics.

………

Fighting for justice in Uniontown means opposing the trains that roll into town carrying hazardous coal ash from 33 states to deposit it at the Arrowhead landfill — a dump bewilderingly located in a residential neighborhood, near wetlands, within this spacious county full of rolling fields and open space. It means worrying about the safety of that coal ash — the very same coal ash that catastrophically leaked out of a Tennessee facility in 2008 and destroyed the surrounding environment before it was hurriedly redirected to Uniontown.

………

In the lawsuit, Green Group and Howling Coyote claim that by advocating against hazardous waste in their town, Esther, Ben, Mary, and Ellis have engaged in “defamation” that’s harmed them to the tune of a cool $30 million. But the only harm evident in this lawsuit is the gripping terror that average citizens — not scientists or paid policy wonks — feel after being sued for millions for speaking their truth in order to protect their community. Fortunately, the First Amendment protects a person’s right to do precisely what Esther, Ben, Mary, and Ellis have so bravely done.

Think again about that sentence: We all should have the right to clean air and clean water. Would you say it if you knew a powerful corporation would sue you for (more than) everything you’ve got? No one should have to make that choice.

The law in this case may focus on the First Amendment, but the story of Esther, Ben, Mary, and Ellis is one about racial justice. In Uniontown, racial justice means environmental justice. And the road to justice starts with voices calling out injustice. The ACLU is representing [6] Esther, Ben, Mary, and Ellis to make sure their voices are not silenced.

This is exactly the same thing that Peter Thiel is doing.

The only difference is that these companies are not attempting to claim that this is some sort of act of philanthropy, as the PayPal founder does.

These are all SLAPP suits, and they are all profoundly corrupting and profoundly evil.

Even With a Slam Dunk, the Guantanamo Courts Collude with Prosecutors

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You would have to figure that if there were one case where the prosecutors at Guantanamo would have a conviction in the bag, it would be the trial of Khalid Sheikh Mohammed.

Well, it turns out that the prosecutors and the judge colluded to destroy evidence:

The judge overseeing the premiere military tribunal at Guantánamo Bay effectively conspired with the prosecution to destroy evidence relevant to defending the accused architect of the 9/11 attacks, according to a scathing court document.

Army Col James Pohl, who this week at Guantánamo is presiding over a resumption of pretrial hearings in the already troubled case, “in concert with the prosecution, manipulated secret proceedings and the use of secret orders”, the document alleges, preventing Khalid Sheikh Mohammed’s defense team from learning Pohl had permitted the Obama administration to destroy the evidence.

Worst Constitutional Law Professor, Ever!

………

The accusation comes in a 10 May defense filing that the military commissions have recently unsealed. It contains significant detail about an episode that Mohammed’s attorneys say has permanently tainted the most high-profile test of the US’s post-9/11 turn toward military justice for terrorism cases.

………

Mohammed’s attorneys argue that the secret maneuvering left them unable to challenge the destruction of evidence. They contend that the case ought to be scrapped entirely. Their brief quotes a famous 1932 supreme court case, Powell v Alabama, to argue that failing to provide the defense access to evidence “would be little short of judicial murder”.

“Whatever legitimate national security interests might purportedly justify the near-Star Chamber proceedings that have riven this case, there can be no articulable excuse for so clearly misleading Mr. Mohammed’s counsel and preventing them from seeking remedies to prevent the destruction of crucial evidence,” they continued.

………

But on 19 December 2013, Pohl ordered the US to “ensure the preservation of any overseas detention facilities still within the control of the United States” – a reference to the secret “black site” prisons where the CIA and its allies tortured Mohammed and his co-defendants.

According to the defense filing, six months after Pohl issued an evidence-preservation order at the defense’s behest and over the prosecution’s objections, the judge “authorized the government to destroy the evidence in question”. Pohl’s reversal of course was “the result of secret communications between the government and Judge Pohl, which he conducted without the knowledge of defense counsel”, the motion asserts.

That order, issued exclusively to the prosecution, carried with it a direction to provide the defense with a “redacted version”. But Pohl “did not actually instruct the prosecution to proffer any proposed redactions of the order until 18 months after granting the government permission to destroy the evidence, and over a year after it was apparently actually destroyed”, the defense team claims.

“[B]elatedly,” Mohammed’s attorneys say, the commission gave them a version of Pohl’s destruction order “by attaching it to another secret order,” and concluding, “without benefit of ever having examined the actual evidence, that the government’s proffer or a summary of a substitute for the original (now destroyed) evidence provided the defense with an adequate alternative to access to the evidence in question.”

Destroying the evidence in secret while permitting the defense to believe it had been preserved has “substantially gutted” the credibility of the military commission and “irreparably harmed” Mohammed’s ability to defend himself in a death-penalty case, the lawyers say. The episode “call[s] into question Judge Pohl’s impartiality”.

………

Karen Greenberg, the director of Fordham University Law School’s Center on National Security, said the allegation of collusion to destroy evidence could prove to be a tipping point for the military tribunals more broadly.

“This may well be the straw that breaks the camel’s back in underscoring the unviability of the military commissions,” Greenberg said.

“Remember, a main reason they couldn’t have this [trial] in federal court was that it would have been such a circus. And now you have a full-blown circus, with judicial and every other kind of misstepping.”

Gee, you think?

This has been a complete clusterf%$#, and it has been since it’s begun.

They wanted to create a system that would allow for no possibility of acquittal, and they wanted to be able to claim that it was fair.

They got neither.

BTW, Colonel Pohl should be removed from the case, and probably fired from the military, and if he has a civilian law license, he should be disbarred.

This makes a mockery to the very idea of justice and due process.

Why Billionaires are a Plague on the World

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Well, we now know that Hulk Hoagan’s lawsuit against Gawker was bankrolled by PayPal founder and billionaire Peter Thiel.

It appears that he was incensed about Gawker outing him almost 9 years ago in what was actually a rather adulatory article. He had been out in all but press release at the time.

It turns out that this incensed him because he literally made his fortune off of gay bashing when at Stanford University:

………

 On the Gawker site, the most popular—I don’t say best–defense appears to be that “outing” Thiel was beyond the pale—so the suit accomplishes belated justice (that’s dubious in itself). Setting aside whether an outing actually happened or what prevailing ethical/journalistic standards are, I think Thiel’s time at Stanford (overlapping mine) bears renewed scrutiny.

 Keeping it brief: Thiel essentially got his public start by founding the Stanford Review. That publication quickly, if not at its inception, was devoted mainly to “anti-PC” arguments, defending in particular fellow reviewer Keith Rabois, another future PayPal zillionare who, as a Stanford Law student was involved in “screaming ‘Faggot! Hope you die of AIDS!’ and ‘Can’t wait until you die, faggot,’ in the direction of the resident fellow cottage of lecturer Dennis Matthies.”

According to a Stanford news release at the time: “first-year law student Keith Rabois … sent a letter to the Stanford Daily confirming the allegations.”

“Admittedly, the comments made were not very articulate, not very intellectual nor profound,” Rabois wrote, according to the news release. “The intention was for the speech to be outrageous enough to provoke a thought of ‘Wow, if he can say that, I guess I can say a little more than I thought.’ “

 Both Thiel and Rabois were/are gay.

 This wasn’t just a youthful indiscretion. … Thiel rode the incident to a book deal and publication in the Wall Street Journal. I assume his conservative bona fides, rooted here, played a serious role in his public profile and early business network? They also weren’t straightforwardly voicing some political/religious position: they were rather rancidly scapegoating other gay men as part of some closeted psychodynamic.

So his declaration of outrage is fueled by rank hypocrisy.

Will Bunch has the most succinct description of what is going on here, “Thiel’s Gawker gambit lifts the veil on how the American kleptocracy hopes to control the American media in the 21st Century — by buying and controlling some key news sites…and using their endlessly deep pockets to destroy journalists who are non-compliant.”

I would also direct you to essays from Feliz Salmon and Bob Lefsetz.

I would also note that Theil is a reactionary nut-job, (scroll down toward the bottom) who opposes women’s suffrage, supports the establishment of floating cities exempt from law, and funded James O’Keefe’s successful jihad against ACORN.

There is nothing inherently wrong with being a rich nut-job.  Our history is filled with this.

But when that rich nut-job begins to think of themselves as a God, whether the Randian Übermensch in the case of Thiel or the brothers Koch, or an actual denizen of Olympus in the case Gaius Julius Caesar Augustus Germanicus (Caligula), it’s the rest of us who bear the cost of their delusional excess.

Well, Here is a Hearty F%$# You to Larry Ellison

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Oracle just lost its lawsuit against Google.

It was attempting to claim that its Applications Programming Interface (API) was a copyrightable element, which would have had the effect of allowing Oracle, and other makers of software platforms, to charge programmers for writing compatible programs:

A jury ruled in favor of Google on Thursday in a long legal dispute with Oracle over software used to power most of the world’s smartphones.

Oracle contended that Google used copyrighted material in 11,000 of its 13 million lines of software code in Android, its mobile phone operating system. Oracle asked for $9 billion from Google. Google said it made fair use of that code and owed nothing.

The victory for Google cheered other software developers, who operate much the way Google did when it comes to so-called open-source software. Unlike traditional software created by corporations and tightly held, open-source products are released, often with some restrictions, for anyone to use and modify.

………

The particular areas of copyright protection in Java involved the so-called declaring code in Application Programming Interfaces, or A.P.I.s., which have become the common way that networked programs on the Internet share data.

Declaring code establishes standards and meanings by which future lines of software, the actual effects the software seeks to create, will operate. This distinction compelled the 10 jurors — eight women and two men — to hear extensive testimony by engineers and economists about the nature of code, and the copyrightable implications of this type of creativity.

The idea that APIs are copyrightable is insane.

It makes independent development of software impossible.

This Sucks………

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2 trials, and no convictions against the cops who killed Freddie Gray:

Baltimore Circuit Judge Barry Williams rejected the state’s case Monday against Officer Edward Nero, acquitting him on all counts for his role in the arrest of Freddie Gray.

The verdict, which followed a five-day bench trial, is the first in the closely watched case. Nero, 30, had faced misdemeanor charges of second-degree assault, reckless endangerment and two counts of misconduct in office. The 25-year-old Gray died last year of injuries sustained while riding in the back of a police transport van.

I’m beginning to think that all these cops are going to walk.

To Protect and Serve

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It’s confirmed.

The Baltimore PD is nothing at all like the TV series Homicide: Life on the Street.

First we learn that for many years, the company doing psyche evals for would be BPD cadettes was phoning it in, which explains a lot:

Baltimore’s spending panel has cut ties with two contractors.

 Baltimore’s spending panel voted unanimously Wednesday to take action against two companies accused of violating contracts with the city.

 The Board of Estimates, which is controlled by Mayor Stephanie Rawlings-Blake, voted to immediately end a contract with a psychology firm that conducted mental health screenings for many prospective Baltimore police officers. The screenings were far shorter than required.

 The $730,000 contact for Psychology Consultants Associated of Lutherville had been on suspension since last year, pending the results of a city investigation. The city’s inspector general reported this week that its investigation found that nearly three-quarters of officers and trainees said that their pre-employment screenings with the firm lasted 30 minutes or less.

 The contract required at least an hourlong interview for each job candidate.

 In a letter to the inspector general, Baltimore Police Commissioner Kevin Davis accused the firm of “cutting corners” and putting the public and the department “at risk.”

This might explain a lot, including the fact that Baltimore cops were caught looting during the Freddie Gray unrest:

Three Baltimore police officers were accused of theft in two separate investigations — including two charged after being caught on video looting a store during the unrest that followed the death of 25-year-old Freddie Gray.

According to the Baltimore Sun, correction officers Tamika Cobb and Kendra Richard were suspended without pay after footage showed them exiting a local convenience store holding Slim Jims and Tostitos chips on April 25.

That same day, riots broke out in the city after six hours of peaceful protests calling for charges to be filed against the officers who arrested Gray earlier that month. Six officers were later charged in connection wih Gray’s death.

Both Cobb and Richard were assigned to corrections facilities downtown, near the site of the unrest. They face charges of burglary and theft, and bail was set for each of them at $35,000.

Yes, I know that the 2nd story is from a year ago, but I came across both of them today, so I just had to comment.

They seemed to segue nicely one into the other, or as Zathras would say, “At least there is symmetry.”

Cuomo Has to be Sh%$ting Bullets Now

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It’s pretty clear that US Attorney U.S. Attorney Preet Bharara’s investigations of corruption in Albany have not ended with the convictions of the speaker of the assembly and the majority leader of the state senate:

As U.S. Attorney Preet Bharara’s office issues a storm of subpoenas to the administration of Governor Andrew Cuomo and his close associates in relation to the state’s Buffalo Billion economic development program, the governor and his aides have delivered a consistent message: the investigation targets the dealings of a few bad apples, the governor wasn’t aware of any wrongdoing and he wants to get to the bottom of the situation as quickly as possible.

“I’ve said to all my people, and I’ve said to the U.S. attorney, any way we can find out and be helpful and be cooperative, we will be,” Cuomo told reporters during a press conference in the Adirondacks on Tuesday. “Nobody wants the facts more than us. That’s why we started our own private investigation. We know the questions: did two people act improperly? Did they represent companies they shouldn’t have? Was there undue influence for those companies? Those are the questions, we now need the answers and we don’t have the answers.”

The message rings as spin to a number of expert observers who insist Cuomo has long overseen a system that allows, at the very least, for the appearance of pay-to-play to flourish as mini-economies have popped up around the state where connected consultants work with both state government entities and those looking to win state contracts, and where the state funnels money through non-profits, allowing them to avoid scrutiny and standard state contracting procedures.

Bharara’s probe appears to have also spurred inquiries into surrounding issues by Attorney General Eric Schneiderman and Comptroller Thomas DiNapoli – all of whom, like Cuomo, are Democrats.

It is unclear whether the two men who have been reported to be at the center of the probe – longtime Cuomo aide Joe Percoco and Cuomo family associate and lobbyist Todd Howe – violated the law or how Bharara’s many subpoenas that have targeted the executive chamber, former Cuomo aides, consultants, and businesses involved in the Buffalo Billion all fit together. However, the scope of the investigation and the deep layers of connections between and among some of the players involved makes it fairly clear that the target of Bharara’s investigation is not simply two Cuomo associates.

………

“The governor is looking at it in terms of the mistakes, or poor behavior of a couple aides that he seems to be disassociating himself with,” said John Kaehny, executive director of Reinvent Albany. “But what the subpoenas are targeting seems to be the corruption risk and bid-rigging favoring the governor’s campaign contributors. No one cares Todd Howe did something dumb. This is not what this is about – the governor sidestepped the larger issues.”

At least six current or former members of the Cuomo administration have been targeted by subpoenas. The administration has defended some of them.

A review of a number of businesses targeted by Bharara’s subpoenas shows that most of them are regular contributors to Cuomo’s campaigns. That leads some observers, including Kaehny, to believe that Bharara is interested in the state’s economic development subsidy programs as a whole.

“The Buffalo Billion is just a microcosm of the pay-to-play racket that has engulfed economic development under Governor Cuomo,” said Kaehny. “It is just a giant machine that takes in donations and doles out grants to donors. It is remarkable in its scope, consistency, and is dramatic in how it all leads back to the same people. What caught Bharara’s interest in this is a system – not a rogue agent, not a bad apple, it’s a system.”

………

Gerald Benjamin, a professor of political science at SUNY New Paltz noted that the fact SUNY Polytechnic President Alain Kaloyeros has been subpoenaed and appears to have been a target of the probe since the fall, “makes it a much bigger matter that could be focused on systemic practices.”

Kaloyeros has overseen much of the Buffalo Billion contracting and has become a major figure in the Cuomo administration as the governor has ramped up his economic development programs.

“The issue we have is confidentiality,” Kaloyeros told Gotham Gazette by Facebook messenger last fall when being asked about the Buffalo Billion investigation. “We were instructed in no uncertain terms not to comment on the inquiry from down South with the threat of jail which is being interpreted as we are the target of an investigation. So that part we cannot comment on beyond what we were authorized to say publicly.”

………

Aside from the red flags sent up by donations and dealings with the air of conflict of interest, watchdog groups say they believe Bharara may be examining the Buffalo Billion because it is clear that up until now on one on the state level has been.

Cuomo and the Legislature crippled the Comptroller’s ability to audit deals made regarding the Buffalo Billion in 2011, [New York Comptroller Thomas] DiNapoli and others say, by passing legislation that prevented auditing of SUNY, CUNY, hospital or construction funds. That is important to the Buffalo Billion because the state funnels cash for Buffalo Billion contracts through two non-profits controlled by SUNY.

The question at this point whether Cuomo was merely willfully blind or complicit.

My money is on the former.  He’s a former prosecutor, and he knows how to walk that line.

It’s a pity.  He is an evil rat-bastard.

It Would Be My Concern Too

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The anonymous source behind the huge leak of documents known as the Panama Papers has offered to aid law enforcement officials in prosecutions related to offshore money laundering and tax evasion, but only if assured of protection from punishment.

“Legitimate whistle-blowers who expose unquestionable wrongdoing, whether insiders or outsiders, deserve immunity from government retribution,” the source, who has still not revealed a name or nationality, said in a statement issued Thursday night.

The documents, which list the true owners of thousands of companies created to hide the people behind them, expose the holdings of current and former world leaders and other prominent figures. The source, who uses the pseudonym John Doe but whose gender is not known, said that the papers could spur thousands of prosecutions, “if only law enforcement could access and evaluate the actual documents.”

John Doe noted that journalists who have viewed the papers have said they will not turn over the full archive of 11.5 million documents. “I, however, would be willing to cooperate with law enforcement to the extent that I am able,” the source wrote.

The statement, which was issued Thursday night under the condition that it not be reported until Friday morning, gave some hints about John Doe’s political views and concerns. They include income inequality, the American campaign finance system and the “revolving door” of United States officials who take jobs at banks or other companies they once regulated.

………

In the statement, the source denied being a government official or contractor, now or in the past. The confidential source was also extremely critical of the news media, suggesting that certain unnamed news organizations had declined initial offers to take and report on the documents.

I can understand “John Doe’s” concern.  There have been numerous cases where whistle blowers have been typically been sentenced to more jail time than the folks actually breaking the laws.
What’s more, when one looks at those prosecutions, and the the sentences, it becomes pretty clear that this is a feature of the American criminal justice system, and not a bug.
Prosecutors seem intent on punishing people who whistle blow on members of our plutocracy.

This Makes it Even Better

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In news unrelated to the Presidential election, former New York State Assembly Speaker Sheldon Silver was sentenced to 12 years in prison for corruption:


Sheldon Silver was sentenced to 12 years in prison Tuesday, making the former New York Assembly speaker one of the most powerful politicians in the state to be given time behind bars.

U.S. District Judge Valerie Caproni, who also ordered Mr. Silver to pay a fine of $1.75 million and forfeit about $5.3 million he reaped from the criminal schemes of which he was convicted, said she hoped the punishment would serve as a deterrent.

“I hope the sentence I impose on you will make other politicians think twice, until their better angels take over,” said Judge Caproni. “Or, if there are no better angels, perhaps the fear of living out ones golden years in an orange jumpsuit will keep them on the straight and narrow.”

In a brief statement before the sentence was announced, Mr. Silver, 72 years old, said he had let down his family, colleagues and constituents.

“I’m truly, truly sorry for that,” said Mr. Silver, who was found guilty in November of honest-services fraud, extortion, and money laundering.

………

Two of his former Albany colleagues are expected to be sentenced later this month.

Former state Senate Majority Leader Dean Skelos, who in December was found guilty of public-corruption charges including conspiracy, bribery and extortion, is scheduled to be sentenced on May 12. Former state Sen. John Sampson, who was found guilty in July of obstruction of justice and making false statements to investigators, is scheduled to be sentenced in Brooklyn federal court May 19.

I’m hoping that this puts enough of a fear of God into Skelos that he flips on Cuomo, because 14 years has gotta be scaring the hell out of him.

Not Long Enough

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Child rapist and money launderer Dennis Hastert has been sentenced to 15 months in prison:

Mr. Hastert, whose date to report to prison has yet to be set, was ordered to pay $250,000 in fines, never to contact his victims and to receive sex-offender treatment.

“If there’s a public shaming of the defendant because of the conduct he’s engaged in, so be it,” Judge Durkin said.

Hopefully, given the nature of the crime and the length of sentence, he spends his time in a at least a medium security prison.

I Could Care Less about the Stanley Cup Playoffs

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Earlier today, my wife mentioned that the Stanley Cup playoffs were starting tonight.

She is a hockey fan, specifically the New York Rangers.

I am most assuredly not a follower of the sport.

Upon observing my lack of enthusiasm, she said, “You could care less about the Stanley Cup Playoffs.”

I corrected her, and said, “No, I couldn’t care less about the Stanley Cup Playoffs,” because this is the proper linguistic formulation to describe supreme apathy.

It turns, as is often the case, she was right, and I was wrong.

There are things that I care about a LOT less than specifically.

The I saw a report about the tweets of Craig Mazin, who was Ted Cruz’s roommate in their freshman year at Princeton.

He has made a bit of a hobby tweeting about how Cruz was back in the day, and it is clear that he has never been a fan of his.

Well, in response to accounts of Cruz’ running the defense of the Texas’ ban on “Sexual Appliances”, Mr. Mazin tweeted the following:

Ted Cruz thinks people don’t have a right to “stimulate their genitals.” I was his college roommate. This would be a new belief of his.

— Craig Mazin (@clmazin) April 13, 2016

Sharon was right, I was wrong, I care about this a LOT less than the Stanley Cup Playoffs.

I really did not need that image in my head.

It will Still Be #ASSoL or #ASSLaw

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It appears that in response to the internet discovering the potential initials of the Antonin Scalia School of Law, George Mason is attempting a re-branding:

Days after George Mason University’s law school announced that it was renaming itself after Justice Antonin Scalia, the school is slightly adjusting what it’s calling itself — thanks to unforeseen and unfortunate wordplay.

The name, officially, remains “The Antonin Scalia School of Law at George Mason University” in honor of the late justice who died in February. But on its website and marketing materials, the name now reads: “The Antonin Scalia Law School at George Mason University”.

That’s no accident.

The first five words of the “School of Law” version form an acronym that has a phonetic resemblance to a vulgarity, a source of amusement for some bloggers and tweeters and a source of non-amusement for George Mason’s administration, which agreed to rename itself after Justice Scalia at the request of an anonymous donor who pledged $20 million.

It’s not going to work.

When Allegheny (aka “Agony”) Airlines changed its name to US Air, it got nicknamed “Useless Air” at the press conference announce the renaming.

You need to embrace this, not try to sweep it under the rug.

I would suggest changing the name the the Scalia Hieratic Institute of Tutalge in Higher Educational Excellence in the Law.*

*Yes, it took me longer to come up with the acronym than it did to write the rest of this.

Live in Obedient Fear, Citizen

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In Seattle, police raided the apartment of a privacy activist.

They got a warrant by noting that the IP address of the activist was tied to child porn, but they did not tell the judge that the activist was running a Tor node, which meant that he was not the origin point, and had no way to know the content of the material:

One week after Seattle police searched the home of two well-known privacy activists for child porn and found nothing, critics are questioning why the department failed to include a key piece of information in its application for a warrant—the fact that the activists operated a Tor node out of their apartment, in order to help internet users all over the world surf the web anonymously.

 “You knew about the Tor node,” said Eric Rachner, a cybersecurity counsultant and co-founder of Seattle’s Center for Open Policing, addressing the police department on Twitter, “but didn’t mention it in warrant application. Y’all pulled a fast one on the judge… you knew the uploader could have been literally anyone in the world.”

 At 6 a.m. on March 30, Seattle police showed up at the Queen Anne apartment of Jan Bultmann and David Robinson with a search warrant to look for child porn, based on a tip that traced an illicit video to their IP address. Six officers arrived with two vans and spent over an hour doing forensic searches on the computers in the home. One officer stood in the bedroom and watched as Robinson got dressed.

 They didn’t find anything. Bultmann and Robinson, both board members of the Seattle Privacy Coalition, were released after being detained in a van, but they were left shaken and upset.

 ………

 Bultmann and Robinson had publicly advertised that they operated a Tor exit relay node—a node in the global Tor network, whose purpose is to give users the ability to browse the web anonymously. They said they operated the node as a service to dissidents in repressive countries, knowing full well that criminals might use it as well, much like any other communication tool. Tor stands for “the onion router,” a mechanism by which information is encrypted in layers as it passes through multiple, randomized nodes in the network.

In the aftermath of the search, the question was whether Seattle police had done their technical due diligence: Did they recognize that Bultmann and David were operating a Tor node? If so, did they realize that a tip about child porn coming from that IP address, absent any other evidence, likely meant someone else in another part of the world had uploaded the material and it had been randomly routed through their node?

 ………

 “It’s like raiding the mailman’s house for delivering an illegal letter with no return address,” said one commenter on the tech website YCombinator. “Sure, it could have been sent by the mailman, but it could have been sent by anyone. There isn’t any more reason to suspect the exit node operators than anyone else in the whole world who could also have used the exit node.”

 The warrant application (PDF), signed by King County Superior Court Judge Bill Bowman, makes no mention of the Tor node, much less Bultmann and Robinson’s public roles as privacy activists. Nor does a warrant application dated February 24 to obtain subscriber records related to the address from Wave G, the Internet service provider. Both documents suggest that Bultmann and Robinson are ordinary web users with a private home connection.

 ………

 SPD spokesperson Sean Whitcomb said the department understands how Tor works and that before executing the search, officers knew that Bultmann and Robinson operated the Tor node out of their apartment. “Knowing that, moving in, it doesn’t automatically preclude the idea that the people running Tor are not also involved in child porn,” Whitcomb told NPR. “It does offer a plausible alibi, but it’s still something that we need to check out.”

 But in a statement today, the department said its detectives didn’t know about the Tor node when they filed the warrant application on March 28. If true, this means detectives took notice of the Tor node after the judge approved the warrant, then carried out the exhaustive early-morning search two days later anyway.

 Robinson questions whether police deliberately delayed checking the IP address against the public list of Tor nodes in order to avoid sharing exculpatory information with the judge. He believes a sound investigation would have checked the IP address as soon as the tip came in. “Why spoil a perfectly good warrant with facts?” he asked.

Of course, there will be on consequences for the police who deceived the judge.

There never is.

Schadenfreude Alert

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Michigan Governor Rick Snyder and his Evil Minions™ are being sued under the RICO statutes:

Gov. Rick Snyder, high ranking former members of his staff and others are the target of a new federal racketeering lawsuit over the city’s water crisis. The lawsuit also targets the city of Flint.

A group of 15 citizens filed the civil lawsuit seeking financial compensation for property damage, loss of business and financial losses attributed to the city’s water crisis; as well as compensatory damages for future medical care and punitive damages.

………

The lawsuit, filed Wednesday, April 6, in Flint U.S. District Court, alleges Snyder, his former Chief of Staff Dennis Muchmore and others attempted to balance the Flint city budget through a pattern of racketeering activity.

“He wants to run the state like a business,” attorney Marc J. Bern said of Snyder. “Well. The citizens of Flint, as shareholders in the corporation of the state of Michigan, I don’t think they were treated in an appropriate way.”

The lawsuit alleges that officials misrepresented the suitability of the Flint River water as the city’s drinking water source for roughly two years and billed Flint residents at rates that were the highest in the nation for water that was unusable, resulting in the city’s budget deficit being reversed.

………

The complaint names Snyder, Muchmore, the Michigan Department of Environmental Quality and multiple members of its staff, the Michigan Department of Health and Human Services and members of its staff, the City of Flint and members of its public works department, multiple engineering companies that were hired to evaluate the city’s water system, former Mayor Dayne Walling and three of the city’s former emergency managers.

………

The suit claims officials committed mail fraud by continuing to mail water bills to Flint residents, which they allege fraudulently misrepresent that the city is providing safe, clean water to its residents.

They further allege officials continued to make statements claiming the water was safe despite being aware of growing concerns over the quality of the water.

The lawsuit also alleges the defendants committed wire fraud by allowing residents to pay their water bills online or with credit cards despite knowing the water was toxic.

A RICO lawsuit requires attorneys to prove that the wrongdoing was part of an ongoing enterprise. If successful, the law allows triple the amount of damages to be paid.

I’m not generally fan of the expansive use of the Rico statutes, but this does appear to be a reasonable use of the law.

H/t Charlie Pierce

Texas Bigots Lose, the Rest of Us Win

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These days, conservatives don’t suffer too many unanimous defeats at the Supreme Court, even in its currently unsettled status. But that’s what happened today, when the Court handed down an 8-0 ruling in a case called Evenwel v. Abbott, which had the potential to upend an understanding of democratic representation that has existed for two centuries, and give Republicans a way to tilt elections significantly in their favor before anyone even casts a vote.

The conservatives lost. But losing cases like this one is part of the way they do business. With a (usually) friendly Supreme Court, in recent years they’ve employed a strategy of maximal legal audacity, one that has yielded tremendous benefits to their cause.

This case was a relatively low-profile part of a comprehensive conservative assault on voting rights — or perhaps it’s more accurate to call it an assault on the ease with which people who are more likely to vote Democratic can obtain representation at the ballot box. The question was about how state legislative districts are drawn, and the principle of “one person, one vote.” We’ve long had a legal consensus that all districts in a state have to be approximately the same size, to give everyone equal representation; a state legislature can’t draw one district to include a million people and another district to include only a thousand (although you might point out that we do have a legislative body that violates this principle; it’s called the United States Senate, where Wyoming gets one senator for every 300,000 residents and California gets one senator for every 20 million residents).

The plaintiffs in Evenwell argued that instead of using population to draw district lines, states should use the number of eligible voters. Apart from the fact that we know population numbers fairly precisely because of the census, and we have no such precision regarding eligible voters, that would exclude huge swaths of the public. You might immediately think of undocumented immigrants, but counting only eligible voters would also mean excluding people with green cards on their way to citizenship, children, and those who have had their voting rights taken away because of a criminal conviction. In practice, drawing districts this way would almost inevitably mean taking power away from urban areas more likely to vote Democratic and sending power to rural areas more likely to vote Republican. Which was of course the whole point.

It should be noted, however, that the battle is not over.  The plaintiffs were arguing that districting had to be based on voter rolls, and the Supreme Court ruled that they did not have to.

They did not rule on whether a state can choose to district using this method:


For more than a half-century, the Supreme Court has spoken often of its commitment to the constitutional ideal that every citizen’s vote should count as much as every other’s, but it only now has tried to say just how that equality should be measured. On Monday, it announced the result of that initial effort to define “one person, one vote”: the states mostly get to choose, but they don’t have to switch to a system that few of them have ever tried.

Justice Ruth Bader Ginsburg wrote the main opinion in the much-anticipated case of Evenwel v. Abbott, and a hasty reading of it might suggest that the states must use one formula in drawing election maps: take the total number of people in a state, and then divide up that total by the number of seats in the legislature or local governing bodies, with the answer dictating how many people (give or take a few) should be in each district. But that is not where the Court wound up.

While virtually every argument used by the Ginsburg opinion in favor of basing representation on total population (because elected officials supposedly represent everybody and not just the voters) points toward a constitutional mandate, it turns out that the states actually are not bound by the Constitution to craft new election districts by starting with total population. The only thing settled constitutionally now is that the states also are not required to divide up districts by using the voting population to be assigned to each, making them equal. Should a state do it that way, the opinion seems to say, the Court will then face that issue.

The ruling’s bottom line was unanimous, but the main opinion bore many signs that its warm embrace of the theory of equality of representation had to be qualified by leaving the states with at least the appearance of the power of choice, to hold together six solid votes.

I expect a state legislature to try using registered voters instead of persons for the next redistricting following the 2020 census.

Some Sanity on Asset Forfeiture

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The government may not freeze assets needed to pay criminal defense lawyers if the assets are not linked to a crime, the Supreme Court ruled Wednesday in a 5-to-3 decision that scrambled the usual alliances.

The case arose from the prosecution of Sila Luis, a Florida woman, on charges of Medicare fraud that, according to the government, involved $45 million in charges for unneeded or nonexistent services. Almost all of Ms. Luis’s profits from the fraud, prosecutors said, had been spent by the time charges were filed.

Prosecutors instead asked a judge to freeze $2 million of Ms. Luis’s funds that were not connected to the suspected fraud, saying the money would be used to pay fines and provide restitution should she be convicted. Ms. Luis said she needed the money to pay her lawyers.

The judge issued an order freezing her assets. That order, the Supreme Court ruled, violated her Sixth Amendment right to the assistance of counsel.

Justice Stephen G. Breyer, in a plurality opinion also signed by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg and Sonia Sotomayor, said the case was simple.

One would think it would be simple.

Asset forfeiture is two things at its core:  A cudgel to extract guilty pleas, and theft without due process.

It is deeply corrupting, and needs to end.

How Utterly Proper

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George Mason University, a welfare program for reactionary economists and lawyers, has, with significant funding from the Brothers Koch, Decided to rename the George Mason University Law School to ASSoL, the Antonin Scalia School of Law:

George Mason was a founding father. He was one of the men who was responsible for the Bill of Rights — he wouldn’t sign the constitution without it (or at all, ultimately). Now, the law school at the university that bears his name is changing its name to the Antonin Scalia School of Law at George Mason University.

 ………

 Good lord. You are deemphasizing the name of a founding father to honor a man who fetishisized the beliefs held at the founding? A guy who didn’t go there, or have any connection to the school, who wouldn’t have hired a George Mason law student as a bathroom attendant, much less a Supreme Court clerk? That’s the guy you are renaming your law school after? Your Twitter hashtag is now #ASSLaw (Antonin Scalia School of Law). Who was in second place, Donald Trump?

 ………

 We talk a lot about the law school application crunch, and how that crunch disproportionately dings middling law schools like George Mason. There is a flight to quality, there is a flight to “free,” and schools that are neither are having a heck of a time filling their seats.

 But branding themselves as “Antonin Scalia,” who most people even lightly interested in law have heard of before, versus “George Mason,” who you should have learned about in AP History but probably didn’t because he’s not a Kardashian, might help them.

Even if Scalia Law generates some push in application and matriculation revenue, especially from right-of-center students, would it be enough to offset the negatives? Changing the school’s name in this way is sure to piss off some alumni.

Reports are that this was in response to, “$30 million in donations, $10 million of which came from the Charles Koch Foundation.”

This may very well be beyond parody, even ignoring the irony of naming a law school after a justice is on a fast track to be considered among the caliber of Roger Taney, James Clark McReynolds, Clarence Thomas, Henry Billings Brown, etc.

#ASSLaw #ASSoL

Labor Dodges a Bullet

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The Supreme Court was poised to make it impossible for labor unions to collect fees from freeloaders, and then Antonin Scalia died, making it a 4-4 non-decision.

It proves, once again, that the best thing that Scalia has done for the world is leaving it:

The most important labor union controversy to reach the Supreme Court in years sputtered to an end on Tuesday, with a four-to-four split, no explanation, and nothing settled definitely. The one-sentence result in Friedrichs v. California Teachers Association will leave intact, but on an uncertain legal foundation, a system of “agency fees” for non-union teachers in California — with the legal doubts for public workers’ unions across the nation probably lingering until a ninth Justice joins the Court at some point in the future.

The practical effect was to leave undisturbed a ruling by the U.S. Court of Appeals for the Ninth Circuit, which had simply found itself bound by a prior Supreme Court precedent upholding such fees against constitutional challenge. The Ninth Circuit had before it a case specifically filed as a test of that precedent, and only the Supreme Court could revisit that prior ruling, binding on all lower courts.

The Court had heard the Friedrichs case on January 11 and, from all appearances then, it seemed to be on its way toward a five-to-four decision to declare that it would be unconstitutional for unions representing government employees to charge fees to workers they represent but who are not among its members, even when the fees cover the costs of normal union bargaining over working conditions, not lobbying or outright political advocacy.

But the death of Justice Antonin Scalia last month left the Court to either find a way still to decide the case, or to end it with an even split. If it had actually tried since Scalia’s death to find a way around a split, that effort clearly came up short. The result set no precedent, and thus left the constitutional issue dangling.

Shortly after Justice Scalia died, the Center for Individual Rights, a conservative legal advocacy group involved in the Friedrichs case, announced that it would ask the Justices to schedule a rehearing on the case if it were to split four to four. The Center said at the time that it expected such a request would put the case off until the Court’s new Term, which is slated to begin on October 3. (UPDATE: Lawyers involved said Tuesday that a rehearing petition will, in fact, be filed.)

Under the Court’s rules, a rehearing request in the Friedrichs case would have to be filed within twenty-five days following Tuesday’s ruling. It would require the votes of five Justices to order such a reconsideration, and one of the five must have been one who had joined in the decision. It is unclear how that rule would work when the judgment had been reached by an evenly divided Court.

The right wing of the court has been attempting to destroy the American labor movement for decades, and for today at least, they have been thwarted.

What a Surprise. The FBI and the DoJ Lied

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After attempting to invoke the All Writs Act, the FBI just unlocked the San Bernardino shooter’s phone all by themselves:

The Justice Department is abandoning its bid to force Apple to help it unlock the iPhone used by one of the shooters in the San Bernardino terrorist attack because investigators have found a way in without the tech giant’s assistance, prosecutors wrote in a court filing Monday.

In a three-sentence filing, prosecutors wrote that they had “now successfully accessed the data” stored on Syed Rizwan Farook’s iPhone and that they consequently no longer needed Apple’s court-ordered help getting in. The stunning move averts a courtroom showdown pitting Apple against the government — and privacy interests against security concerns — that many in the tech community had warned might set dangerous precedents.

I am going to put my tinfoil hat on here, and suggest that the FBI always knew that they could hack the phone.  It was probably only a call to Fort Meade away.

It took them just a few days once they realized that the court was not receptive to their demands and they were getting excoriated in the press.

 They were sandbagging the court and abusing legal process.

Bummer of a Birthmark, Rahm!

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The Illinois Supreme Court just ruled that Rahm’s attempt to balance the city books by welshing on its pension obligations are unconstitutional:

Beleaguered Chicago taxpayers face short-term gain but long-term excruciating pain now that the Illinois Supreme Court has shot down down Mayor Rahm Emanuel’s plan to save two of four city employee pension funds.

 “These modifications to pension benefits unquestionably diminish the value of the retirement annuities the members…were promised when they joined the pension system. Accordingly, based on the plain language of the Act, these annuity-reducing provisions contravene the pension protection clause’s absolute prohibition against diminishment of pension benefits and exceed the General Assembly’s authority,” the ruling states.

 “A public employee’s membership in a pension system is an enforceable contractual relationship and the employee has a constitutionally-protected right to the benefits of that contractual relationship…Those constitutional protections attach at the time an individual begins employment and becomes a member of the public pension system. Thus, under its plain and unambiguous language, the clause prohibits the General Assembly from unilaterally reducing or eliminating the pension benefits.”

 In the short run, Chicago will be off the hook to find $250 million in additional revenue over five years to honor its commitment to stabilize the Municipal Employees and Laborers Pension Funds.

But over time, Chicago taxpayers will be forced to bear a far heavier, backbreaking burden because employees and retirees won’t be meeting them halfway.

Here’s a though: How about rescinding the sweetheart deals and tax abatements with your friends, and make the rich folks pay their fair share of taxes.

And while you are at it, how about resigning in disgrace for covering up a murder for political gain?