Osama bin Laden Testifies for Moussaoui (Well, Sort Of)
Reuters reports:
Osama bin Laden said Zacarias Moussaoui, the only person convicted in a U.S. court for the September 11 attacks, had nothing to do with the operations, according to a Web site audiotape released on Tuesday.
Bin Laden said he had personally assigned tasks to the 19 hijackers who staged the attacks on U.S. cities which killed about 3,000 people.
“The truth is that he has no connection whatsoever with the events of September 11. I am certain of what I say because I was responsible for entrusting the 19 brothers … with the raids,” said the speaker who sounded like the leader of Al Qaeda.
The “Nothing to Hide” Question
Over at Concurring Opinions, Daniel Solove is wondering about how to respond to the argument sometimes made in surveillance debates that “if you haven’t done anything wrong, you have nothing to hide.” Dan is a privacy nut scholar, and is interested in arguments to counter this position. He writes:
One response that I find particularly compelling is that there is a value in not having to explain and justify oneself, something that might become necessary when the government is trolling through personal data. Things that look odd might spark some speculation or negative inferences, and a person might feel the need to explain the context and background. Should people always have to be prepared to justify themselves and explain their behavior? How will one’s data trail appear to government officials judging it at a distance? What’s worse, people might never even get the opportunity to explain.
But still, the person who says “I have nothing to hide” might not be concerned about her data being misinterpreted or in having to justify herself.
Are there other good responses to the “I have nothing to hide” argument? I’m curious if anyone can articulate a compelling response that will have widespread appeal.
This is a very interesting question, and I have a few thoughts on it. The key, it seems to me, is that the “I have nothing to hide” argument is implicitly contextual. It is a claim that I have nothing to hide that the particular person doing the searching is likely to find and use against me.
Consider an example. Let’s say the debate is whether warrantless NSA wiretapping is a good idea. One participant in the debate says that it’s a great idea, and says that “he has nothing to hide.” I don’t think that is an absolute claim. Rather, it means that the participant doesn’t think the NSA is going to find anything of interest in his phone calls, and therefore that the NSA is not going to use any of the calls against him, and therefore that it doesn’t hurt him if the NSA listens to his calls. “I have nothing to hide” really means “this particular thing isn’t going to hurt me.”
If I’m right about that, then the “nothing to hide” argument is a claim about the consequences of surveillance: It is a claim that based on that person’s interests, the surveillance will do them more good than harm. If you happen to oppose that form of surveillance, then the response might be to try to articulate why you think that surveillance will do them more harm than good. Of course, that’s a big topic, and whether you can make that argument effectively depends on the context. But I think it helpfullly refocuses the discussion to the real issue of consequences.
Dan’s post asks for compelling ways to make the argument persuasively to a public audience. Hmm. Well, one colorful way to point this out would be to change the context to one in which the consequences are very different, and then to explore why the person who just claimed that he had “nothing to hide” suddenly feels that he does. You would have to be careful, as this could come off as a bit aggressive and might be considered pretty annoying, but in some contexts it might be effective. (In other words, don’t try this at home, kids. This technique is for professional privacy experts only.)
For example, suppose you’re debating Internet privacy, and you’re talking to a person who says that he doesn’t care about whether people are watching him online because he has nothing to hide. Try asking him if he would be willing to tell you his e-mail username and password. When he refuses, ask him, “What do you have to hide?” I assume he’ll then begin to talk about the bad things that may follow if he gives you his private info, and how he has nothing to gain from it. If you can ask the question in a friendly enough way, I think this can help prove your point: it will make clear that the issue is really a contextual question of consequences rather than an absolute question about whether he has “nothing to hide.”
NYT on New Orleans Criminal Courts
The New York Times has an interesting story on how the New Orleans criminal courts are running (or really, not running) with the public defender system essentially broken down. An excerpt:
Nine months after the storm, more than a thousand jailed defendants have had no access to lawyers . . . because the public defender system is desperately short of money and staffing, without a computer system or files or even a list of clients.
And so Judge Hunter, 46, a former New Orleans police officer, is moving to let some of the defendants without lawyers out of jail. He has suspended prosecutions in most cases involving public defenders. And, alone among a dozen criminal court judges, he has granted a petition to free a prisoner facing serious charges without counsel, and is considering others.
An Exam Question
A few lawprof bloggers have posted some of their exam questions, and I thought I would join in. My upper-level exams are 2/3 doctrine, 1/3 policy, and I don’t think readers will be quite so interested in an issue-spotter. Given that, I thought I would post a policy question.
Here’s a question from my spring course in computer crime law. I don’t know if the question will make any sense if you haven’t taken the course, but I figure at least some readers will be able to make sense of it.
Problem Three
(60 minutes)
Consider the following commentary:
When judges apply either substantive criminal law or the Fourth Amendment to computers and the Internet, they should follow a simple rule: Copying digital information should be treated the same as taking physical property is treated in the case of physical crimes. In the case of physical crimes, taking physical property without the owner’s permission is criminal theft as a matter of substantive law when done by a private actor, and is a seizure for Fourth Amendment purposes when done by the government. When called on to apply the concepts of “theft” and “seizures” to a digital environment, courts should say that copying data is the cyber-equivalent of taking physical property. In other words, they should hold that copying data without the owner’s permission is a “theft” of that data, and also that copying “seizes” the data for Fourth Amendment purposes. This simple rule provides a straightforward, workable, and sensible approach that will update criminal law and procedure for the Internet Age.
Do you agree or disagree with this commentary, in whole or in part? Discuss, using specific examples where helpful.
Are Bush Judges More Conservative, or Is the Federal Docket Just Different?
Over at CQ.com, columnist Kenneth Jost writes about a study that purports to show that Bush 43 judges are more conservative than Reagan or Bush 41 judges:
A new study by nonpartisan academics indicates that Bush’s judges turn out to be more conservative on civil rights, civil liberties, and worker and consumer protections when compared not only with Democratic appointees but also with judges named by previous Republican presidents.
Robert Carp, a professor at the University of Houston, and co-authors Ronald Stidham of Appalachian State University and Kenneth Manning of the University of Massachusetts at Dartmouth, used the common definition of liberals as more protective of individual rights (and conservatives as less so) in their analysis of more than 75,000 opinions published from federal courts since 1933.
By their count, Bush’s judges issued liberal rulings or opinions in 33 percent of their nearly 800 decisions in the study. That was predictably lower than the figures for judges named by Democratic presidents Lyndon B. Johnson, Jimmy Carter or Bill Clinton. But it was also lower than the scores for judges named by Richard M. Nixon (38 percent), Ronald Reagan (36 percent) or the elder George Bush (37 percent).
“There’s been a quiet, silent revolution going on,” Carp said in an interview. “If you’re a conservative, you’re going to say, ‘Thank God.’ If you’re a liberal, you’re going to put your hands over your head and say it’s a nightmare.”
I can’t find the study online, although as described this study sounds like it has all sorts of methological problems. Perhaps the most obvious problem is that based on Jost’s description, it sounds like the study is not controlled for changes in the federal court docket. That is, it sounds like the study is comparing the patterns of votes for different judges in different eras, or at least in overlapping eras. So the Reagan judges would be analyzed for their votes from the 1980s to the present — and with most Reagan judges senior these days, more in the 1980s than the present — whereas Bush 43 judges would be analyzed for their votes only in the last five years.
If that’s right, I think it’s very hard to make much of Carp’s study: Given that most opinions are unanimous, the difference between Reagan judges writing 36% “liberal” opinions and Bush 43 judges writing 33% “liberal” opinions may just reflect the differences in the kinds of cases that the federal courts decide.
I have e-mailed Professor Carp to ask for his comment on this concern; I’ll let you know if I hear anything. (Link via HB)
UPDATE: Professor Carp responds that my understanding of the study is correct. It also turns out that the study is about the voting patters of district court judges, not appellate judges.
It’s a ROUT
In response to my most recent post, a bunch of readers write in with the same suggested “T” word: Tribunal. Hmm, not bad.
I therefore announce a new term to describe a unanimous opinion by Chief Justice Roberts: It’s a ROUT, Roberts Opinion for a Unanimous Tribunal.
Brigham City v. Stuart
The Supreme Court handed down a Fourth Amendment exigent circumstances case this morning: Brigham City v. Stuart. In a unanimous opinion by Chief Justice Roberts (hmm, there’s that phrase again*), the Court held that the “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Justice Stevens concurred, explaining that he thought this was an “odd flyspeck of a case” that the Court shouldn’t have agreed to hear in the first place.
* In light of the Chief’s apparent skill at writing opinions the entire Court will join, maybe we need an acronym for this. Perhaps, “ROUC,” Roberts Opinion for A Unanimous Court? “ROUT” would be better, but I can’t come up with a “T” word that really fits.
Roberts Commencement Address
Chief Justice Roberts gave the commencement address at Georgetown Law today, and it’s great stuff. He starts out with some very funny lines, and later turns to a very interesting disussion about the importance of writing narrow opinions based on a consensus view of the Justices. Key line: “If it is not necessary to decide more to dispose of a case, in my view, it is necessary not to decide more.” Well worth watching; the whole thing is about 15 minutes long.
You can watch the video here, starting at the 19 minute mark; thanks to Howard for the link.
Judge Edward Becker Has Passed Away
Howard Bashman reports some very very sad news: Judge Edward Becker of the Third Circuit has died. I’m with Howard: Becker was a giant of the law and a wonderful man. If I’m ever embroiled in a law suit, I would want a judge like Edward Becker deciding it. He was brilliant, fair, tremendously thoughtful, and always scholarly. A real mensch.
You can read a terrific profile of Judge Becker from 2003 here. It begins:
After 33 years on the federal bench and the piano bench, he’s a nationally treasured jurist whose profound opinions and pop-tune piano-playing are celebrated by the highest court in the land.
But U.S. Third District Appeals Chief Judge Edward Becker, who will be 70 on Sunday, still lives in the Northeast Philadelphia house he grew up in and still rides the Frankford El from Northwood to work, where his opinions have impressed everyone from Supreme Court justices to the late South Philly ward leader Buddy Cianfrani.
Historical Perspective on the D.C. Circuit in the Virginia Law Review
Chief Justice Roberts has penned a short and very interesting article, What Makes the D.C. Circuit Different? A Historical View, which he delivered as a lecture when he was still a Circuit Judge. An engaging read.
Thanks to Howard for the link.
“Extraordinary Rendition” Suit Dismissed Under State Secrets Privilege
The Washington Post has the story here:
A federal judge yesterday threw out the case of a German citizen who says he was wrongfully imprisoned by the CIA, ruling that Khaled al-Masri’s lawsuit poses a “grave risk” of damage to national security by exposing government secrets.
U.S. District Judge T.S. Ellis III in Alexandria acknowledged that Masri “has suffered injuries” if his allegations are true and that he “deserves a remedy.” Sources have said Masri was held by the CIA for five months in Afghanistan because of mistaken identity. Masri says he was beaten, sodomized and repeatedly questioned about alleged terrorist ties.
But Ellis said the remedy cannot be found in the courts. Masri’s “private interests must give way to the national interest in preserving state secrets,'’ the judge wrote in dismissing the lawsuit filed last year against former CIA director George J. Tenet and 10 unnamed CIA officials.
Judge Ellis is a terrific judge; his opinions are always worth careful consideration.
Via Marty Lederman, I have obtained a copy of the opinion and have posted it here: El-Masri v. Tenet (17 pages, .pdf).
Next Time You’re in Baltimore, Bring A Map
It seems that if you ask a Baltimore police officer for directions, you risk being arrested for “trespassing.” This is a remarkable story. (Almost too remarkable; I wonder if the facts will end up being different from the initial report.)
Recent Media Appearances
Do you wonder what I look and sound like? Wanna hear my nasal voice and see my bald head? I’ve been doing some recent media appearances on the NSA Call Records Program, so here’s your big chance. I show up in this NPR story today around the 4:00 mark, and in this CBS Evening News segment from Saturday at the 1:35 mark.
New Facts Suggest A Possible Reason Why the Phone Companies May Not Be Liable For the NSA Call Records Program
In today’s New York Times, Matt Richtel and Ken Belson look at the statements made this week by the major telcos and come up with a conclusion: The NSA Call Records program seems to have been focused on long distance carriers instead of local call carriers. An excerpt:
Government efforts to obtain data from the nation’s largest phone companies for a national security database appear to have focused on long-distance carriers, not local ones, statements by company officials indicate.
The statements have come in the week since USA Today reported that the National Security Agency had collected local and long-distance phone records on tens of millions of Americans from Verizon, BellSouth and AT&T in the aftermath of the Sept. 11 attacks.
The responses by the companies suggest that the agency, in an effort to find patterns that could identify terrorists, sought records from major long-distance providers like the former MCI (now part of Verizon), AT&T and Qwest, but did not ask for data on local calls.
Why does that matter for purposes of the phone companies’ liability? Well, I’m not sure it does. But I have a possible idea about why it might.
Here’s my thinking. The Stored Communications Act, 18 U.S.C. 2701-11, only regulates two kinds of providers: providers of electronic communication service and providers of remote computing service. Everyone agrees that the telephone companies are not acting as providers of remote computing service, so if they are liable they must be acting as providers of electronic communication service. 18 U.S.C. 2510(15) defines “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” (For our purposes, a “wire communication” is a telephone call; an “electronic commuincation” is an e-mail.)
A local telephone company is clearly a provider of electronic communication service: it literally provides users the ability to send or receive telephone calls. But is a company that only provides long distance service a provider of electronic communication service?
Maybe, but I’m not entirely sure. I don’t know much about how modern telephone networks work, but I am guessing that local carriers carry the first part of the call. In the case of a long-distance call, I assume that the long-distance carrier picks up the call at some point from the local carrier, and sends it to the local carrier at the receiving end of the call. If that’s right, I’m not entirely sure the long-distance carrier is a provider of electronic communications service.
I can see arguments on both sides: one one hand, the long-distance provider is providing users the ability to send a particular type of wire communication in a particular way; on the other hand, users have the ability to send wire communications without it. What do you think? Are companies that only provide long-distance service providers of “electronic communication service”?
Empirical Study of Pro Se Representation
The Baltimore Sun recently had an article on a new empirical study about decisions by counseled criminal defendants to proceed pro se. From the Sun:
Self-representation is a legal strategy many lawyers decry, saying that the old adage - a man who is his own lawyer has a fool for a client - got it right. But some legal observers take a different view, suggesting defendants might have legitimate reasons for acting as their own lawyers and that such a defense sometimes leads to favorable outcomes.
Erica Hashimoto, a professor at the University of Georgia School of Law, recently set out to determine whether empirical data supported the assumption most lawyers make: that pro se defendants, as they are technically called, are “either mentally ill or stupid.”
In the study, which is scheduled to be published in the North Carolina Law Review, Hashimoto found that pro se felony defendants in state courts were as likely as defendants with counsel to win complete acquittal. In addition, they were more likely to be convicted of lesser offenses - misdemeanors rather than felonies, according to Hashimoto’s review of data, a sample from the National Archive of Criminal Justice Data that covers the country’s 75 largest counties in the even years between 1990 and 1998.
Erica’s very interesting article has now been posted on SSRN. You can download a draft here: Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant.
Tracing the History of a Set of Blackstone’s Commentaries
I recently purchased a complete set of Blackstone’s Commentaries on the Laws of England. It’s a Twelfth Edition, published in London from 1793-95. The four books are complete and the pages are in good shape, although it needs new binding work.
Inside the cover of each book, there are two labels on the interior front cover. The first appears in the center of the page, and is a fairly large family crest with the name “ROWLAND EGERTON.” The second is a smaller label in the top left corner that says “REV. R. E. WARBURTON, NORLEY BANK,” and then has spaces for the shelf and number of the book (Shelf 9, No. 198-201 for the 4 books).
I googled around a bit, and was able to find a few morsels about the history of the volume’s apparent owners. It seems that Rowland Egerton was born March 9, 1778 in Cheshire, England, as part of the prominent Egerton family that were made barons after the Norman Conquest in 1066. In 1803, Egerton married Emma Croxton. According to this page, “Rev. Rowland, took the name of Warburton in addition to, and after Egerton, by royal sign manual 1813.” (See update below) Norley Bank seems to be a house or estate in Cheshire; the crest on the label is the Egerton family crest that you can see here. It’s not clear if the “Rowland Egerton” label belonged to its original owner, who was probably the Reverend. Rowland is a common family name in the Egerton family, so it’s hard to tell. In any event, the Blackstone set probably was passed down to the Reverend’s only son, also named Rowland Egerton. He would have needed it: According to this page, the son served as a Justice of the Peace.
At least, that’s what a bit of amateurish googling suggests. If any readers have other ideas for how to research the history of the books, let me know.
UPDATE: According to Wikipedia, “royal sign-manual” is an order signed by the King. In the case of an order signed in 1813, it would have been George III.
Dateline TV Show Catches Internet Predators
The New York Times has the scoop. The Associated Press has more on these types of undercover investigations, focusing on the FBI’s efforts.
How to Get Confirmed to the Ninth Circuit in Record Time
Apparently it doesn’t hurt if your brother is a Senator.
Better Representation for Criminal Defendants at the Supreme Court?
A bunch of bloggers have pointed out Tony Mauro’s insightful piece on representation of criminal defendants in the Supreme Court. The gist of Tony’s piece is that criminal defense lawyers are often outgunned in the Supreme Court, and that it hurts criminal defendants and defendants’ rights more bradly. I agree that this is a problem, and have a few thoughts to add beyond those in Mauro’s piece.
First, I think it’s essential to focus on the certiorari stage as much as the merits stage. Here is what often happens. Criminal cases frequently get to the Supreme Court when a state supreme court reaches an outlier result in favor of a criminal defendant. The outlier creates a split, and the state petitions for certiorari on the basis of the split. The defendant’s lawyer has never been before the Supreme Court before, and just rehashes his merits brief in his Brief in Opposition (BIO) rather than addressing head on the reasons why the Court should decline to excercise review. Without the benefit of a good BIO, the Court grants the case, and the lawyer from state court is tasked with defending the state court decision below. The lawyer figures that he has won the case in the state Supreme Court, so he can pretty much rehash what he said below in front of the U.S. Supreme Court. The result is a relatively unhelpful brief (and often a very weak argument).
The best way to improve this situation, I would guess, is for interested organizations and individuals that are skilled at Supreme Court litigation to watch the petitions that are filed instead of the cases that are granted. They should watch for strong petitions, and then approach respondents and ask them if they need help with BIOs. My sense is that offering help after cert has been granted is often too little, too late.
Second, I think organizations that file pro-defense amicus briefs in criminal cases could be a bit more savvy. The best briefs filed before the Court know where the Justices are, and they try to respond to the Justices in light of that. They are designed to find a majority of the Court, and to persuade the Justices that most need persuading, rather than to swing for the fences. My personal impression is that amicus briefs filed on behalf of criminal defendants at the Supreme Court too often miss this: They sometimes read as if they were trying to persuade Justice Brennan instead of today’s swing Justices.
Dan Filler has more thoughts on the article over at Concurring Opinions.
Articles on Internet and Telephone Surveillance Law
A few readers have asked me for recommendations on articles/books to read to get up to speed on the Stored Communications Act and the Pen Register statute for the purposes of understanding some of the legal issues surrounding the latest NSA surveillance program.
I have written three items that might be helpful. While they focus on the Internet context, the laws are the same for the telephone network.
1. Department of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2002) (see Ch. 3 and 4)
2. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It.
3. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn’t. (covers the Pen Register statute).
There are a number of other useful resources online for these topics. If you have any favorites, please leave a comment with a link in the comment thread.