Lowering the Bar

"Politics is Weird. And Creepy."

So said Shepard Smith of FOX News back in May (doing some catch-up today). Newt Gingrich had just withdrawn from the race, and although the primary had been vicious ("[Gingrich] was a failed leader and he had to resign in disgrace"; "You're calling Mitt Romney a liar?" "Yes"), Romney's statement on Gingrich's withdrawal suggested they were the bestest friends ever. That drew this priceless reaction from Smith:

 

There's probably an event almost every day to which this is the only appropriate reaction.

As you may or may not recall, Smith also once dropped an F-bomb during a segment about whether torture had been "effective," which, again, is just about the only appropriate reaction to that argument.

(via Patheos.com)

Police: Complaining About Mug Shot Quality Is Improper Use of 911

Mug shots are rarely flattering, and there is also an argument to be made that releasing them publicly (like requiring suspects to do a "perp walk") infringes to some extent on a suspect's right to be considered innocent until proven guilty. What really isn't in dispute, though, is that an unflattering mug shot is not an emergency situation that should be reported via 911.

The Smoking Gun (which does love a good mug shot) reported recently that a Georgia woman had been arrested and charged with unlawful use of 911 after she called to complain about the quality of a previous mug shot. The woman had seen the photo on the cover of "Bad & Busted," a local publication that reproduces such things, and according to the police report she called 911 to report that "she was upset about how she looked on the front page of the Bad and Busted printing." The officer stated that he informed the woman that 911 was for "emergencies, injuries, or violence," not requests for retouching.

That didn't stop her from calling 911 again later that day to say that she "needed a place to keep her bags." Important, maybe, but still not an emergency. She did get a place to keep her bags, namely the trunk of a squad car, and also got an opportunity to have a new mug shot taken. The Smoking Gun says the one it's now displaying is the most recent one, and if that's an improvement then I guess it's understandable why she wasn't happy with the first one.

Previously in Needless 911: sandwich not to caller's liking, caller wishes to report hookers' breach of contract, callers report they are lost in a corn maze, caller states McDonald's has run out of McNuggets.

Intelligence Community Agrees to Let Senator Mention It Broke the Law

Yes, we're well down the path to a police state, but let us stop and smell the roses along the way. Thus shall we make the process of enslavement at least mildly entertaining.

Senators Ron Wyden and Mark Udall, members of the Select Committee on Intelligence, for years have been expressing concerns about abuses of power by the executive branch but say they can't tell us what they're worried about because it's classified. That has led to almost-comical statements like this one (by Udall): "When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry"—but for now, sadly, he must leave us in suspense. I guess we'll find out in an HBO miniseries in a couple of decades, which we will then be jailed for watching.

Apparently, though, Wyden has been bugging the intelligence community (get it? bugging! the word has a double meaning in this context, you see) to declassify some words about what it has been doing so that he, a United States Senator, could say the words in public. In a letter released on Friday, the Office of the Director of National Intelligence agreed to let him say some of them. Specifically, he can say that while the secret FISA court has "repeatedly held" that the government has complied with the Fourth Amendment,

• It is also true that on at least one occasion the [FISA court] held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.

(Emphasis added.) He is also permitted to say:

• I believe that the government's implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

"Please be advised," the letter continues, "that this declassification decision applies only to the precise three statements that you submitted for review and the other information in this letter." That is, the details of this illegal conduct, presumably the ones Wyden and Udall already know but are afraid to tell us, remain classified.

The only real news here is that the intelligence community (or as the letter puts it, the "Intelligence Community") has now admitted it broke the law. Back in 2009, Congress was already investigating reports that the NSA engaged in what was being called "overcollection." You know, when you put it that way, it really doesn't sound like a big deal. You're out there collecting stuff, and sometimes you just overcollect. Is that a problem, really?

Kind of: "Say you get an [FISA court] order to monitor a block of 1,000 e-mail addresses at a big corporation," a senior intelligence official was quoted as saying, "and instead of just monitoring those, the NSA also monitors another block of 1,000 e-mail addresses at that corporation. That is the kind of problem they had." Oh, that kind of problem. Sure, you could call that "violating a court order," or you could be a team player and call it an "overcollection problem." Whose side are you on, anyway?

According to the 2009 report, at that time the administration "said it had taken comprehensive steps to bring the security agency into compliance with the law" after the "overcollection problem" turned up. And, again, that might sound like an admission that the NSA had not previously been in compliance with the law, or, put less patriotically, had been breaking it. But however you put it, this was back in 2009 and comprehensive steps were taken to prevent any continuance of noncompliance. So, can we assume the admitted violations all happened before that?

You'll have to take their word for it, because the most open and transparent administration in history is not giving you any details, such as just how many U.S. persons its Intelligence Community has been eavesdropping on. Of course, as we saw just last month, the NSA claims it doesn't know and can't find out how many people's privacy it's violated because an investigation would violate people's privacy. (Like I said then, at least they have a sense of humor about the whole thing.)

Less comical is the fact that a United States Senator is being told by the Intelligence Community what he can and cannot say. To be clear, the price he'd pay for giving us the details would be limited to the loss of his security clearance; under the Constitution, "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." Art. I, § 6. For example, a senator once read parts of the then-still-classified Pentagon Papers into the record, and the Supreme Court held it was "incontrovertible" that doing so was privileged. (This, written when Bush was the culprit, discusses the issue in more detail.)

Hopefully the current group would feel the same way. I'm a little concerned, though, that somebody's eyes might wander upward and see the exception for "treason," remember the relative lack of complaint about the treatment of Bradley Manning for leaking classified material, and get to thinking. We're not that far down the path yet, but the smell is getting more and more unpleasant.

(A version of this was first published at Forbes.com last week.)

Professor: Maybe Secret Legal Memos Are Secret Because They Suck

I'm paraphrasing, but I'm pretty sure he'd agree with that.

In this video from the Economist, Prof. Bruce Ackerman makes some important points that make this worth five minutes of your time (depending on your billing rate, I suppose).

First, in the past when presidents have overreached, the opposing party imposed some restrictions when it regained power. That hasn't happened this time. Instead, "[b]oth Democrats and Republicans are in love with presidential power," which makes the threat much more serious.

Second, governments (like ours) that say their actions are legal based on a legal analysis they refuse to show us shouldn't be allowed to pretend they are honoring the rule of law. "At the very least what the rule of law means is that the reasons! be! published!" says Ackerman, tri-exclamationally.

Third, it seems likely that at least part of the reason they don't want to publish these memos is that the memos just aren't any good. For example, he notes, when it was finally released John Yoo's infamous torture-justification memo turned out to be of "extraordinarily poor quality," with reasoning that "does not pass the laugh test." Of course, if you know what your answer's going to be before you start, and that you can keep your work secret, then why bother doing a good job? I'm surprised the guy bothered to do any proofreading.

As Ackerman mentions, there is said to be another memo that explains why the president has the legal right to drop bombs on U.S. citizens who haven't been convicted of anything yet, but we don't get to read it, either. See "For Christmas, Your Government Will Explain Why It's Legal to Kill You," Lowering the Bar (Dec. 21, 2011) (I was kidding; it didn't explain). But maybe that one is A+ work!

The Guardian(s): Lawyers Shadowed Olympic Torch "Every Step of the Way"

And no, that does not seem to be a metaphor:

Two lawyers from the organising committee of the London Olympics have been shadowing the torch on every step of its journey across the UK to prevent ambush marketing on behalf of unlicensed products, an international official has revealed.

"Ambush marketing" is an attempt to take advantage of (in this case) Olympic hype without paying to be an official sponsor. Actual official sponsors like McDonald's have collectively paid over $1 billion for this status, and I guess not surprisingly they and the Olympic Committee want to protect the exclusivity they paid for. But the measures taken in London have been pretty heavy-handed—in fact, Parliament actually criminalized ambush marketing within a designated "event zone." See Brian Pelanda, "The Anti-Competitive Olympic Games," Orange County Lawyer (July 2012). (The London Organizing Committee ["Locog"] actually suggested ticket holders in t-shirts displaying non-official brands would be turned away, but had to back down on that one.)

According to the Guardian, there was also what you might call (and I am calling) a "roving event zone" surrounding the Olympic torch relay as it passed through the UK, escorted and defended not only by security personnel but also by a pair of lawyers:

"Any ambush advertising or infringement outside the event zone will be addressed [said an IOC member]. There are two Locog lawyers running all the way [with the Olympic torch] to make sure that there is no brand ambush or infringement," he said.

Emphasis added. This, of course, is a precedent that goes back thousands of years to the Battle of Marathon; Pheidippides' lawyer insisted on escorting him back to Athens to talk about endorsements. That's why he had to run all the way—the dude was billing him like 500 drachmas an hour. (Actually, you know who came up with the torch relay idea? The Nazis. Uncomfortably true story.)

Now, have I spent a lot of time reviewing pictures from this year's torch relay to see if I could pick out the lawyers? Of course I have, but to no avail.

Is there a lawyer in this picture?
(credit: Jaki North/Demotix/Corbis)

I guess it was too much to hope for that they would be jogging alongside in suits and running shoes, although if you want to deter ambush marketing shouldn't the lawyers be on display? Maybe they dressed up like the security team (I'm guessing those are the guys in the mirror shades). It's possible that the guy on the far left might be coordinating the legal defense on his cellphone, but I think it's more likely that the lawyers are following in a vehicle. Hopefully one of those little clown cars. (If anyone has or can find a picture of a lawyer escorting the torch, I would be very grateful.)

The disclosure of the legal escort came during a talk by an IOC official introducing a new exhibition ("Playing by the Rules: Sport and the Law") at the supreme court in Westminster. He also said that the overall legal team for the Games is quite "extensive"—it's not clear whether he gave a number, but the Guardian reported that one "veteran lawyer" asked him why "thousands of lawyers" were required now "when at the 1948 London Olympics all such arrangements had been handled by one man." Maybe that man was him and he's still pissed off about it, but it seems like a fair question anyway.

The exhibition, which of course focuses on the Olympics, is said to deal with legal issues such as equality, diversity, and assumption of risk, as well as the "dangers of commercialization."

Good Reason to Kill #26: Plaid Jacket

Artist's Impression

The San Francisco Chronicle reports that a Marin County driver was arrested on July 23 for trying to run down a pedestrian. According to police, the pedestrian was targeted because he was wearing a plaid jacket.

Apparently, the 31-year-old driver had left his home angry after a domestic dispute, and drove off to buy a pack of cigarettes. On the way, he spotted the man in plaid walking on the sidewalk and allegedly tried to run him over. (The pedestrian successfully jumped aside.) According to Sgt. Steve Hahn, the driver admitted this was no accident: "He made statements to the effect of: He didn't like the plaid jacket the man was wearing."

The reporter did ask the logical next question: just how horrible was this jacket? "Hahn said the plaid jacket did not have a particularly loud pattern," although no picture was provided to back this up. "I guess he was just really angry with whomever he saw," Hahn speculated. 

I started to swerve the other day to run over a guy I saw wearing a zoot suit, but then I remembered I wasn't driving.

Hooray for Jack Daniels (and Its Lawyers)

Especially given the recent Charles Carreon nastiness, it is nice to get a reminder that many lawyers are not (and need not be) assholes.

Cease-and-desist letters are a frequent source of evidence to the contrary. These are often necessary in order to protect intellectual-property rights, but very often are unnecessarily nasty. Or just unnecessary, or both. See, e.g., "Unicorn-Meat Slogan Draws Cease-and-Desist Letter From Pork Board," Lowering the Bar (June 22, 2010). At the very least, they tend to be lawyerly and unpleasant. Here's some evidence that it doesn't need to be this way.

The cover of Patrick Wensink's book, Broken Piano for President, was pretty clearly modeled on a Jack Daniel's label:

I'm not sure there's a likelihood of confusion there, but it's close enough that it's not surprising it generated a cease-and-desist letter. The surprise was that the attorney didn't feel the need to be a creep.

We are certainly flattered by your affection for the brand, [Christy Susman wrote,] but ... we also have to be diligent to ensure that the Jack Daniel's trademarks are used correctly. Given the brand's popularity, it will probably come as no surprise that we come across designs like this one on a regular basis. What may not be so apparent, however, is that if we allow uses like this one, we run the very real risk that our trademark will be weakened. As a fan of the brand, I'm sure that's not something you intended or would want to see happen....

[W]e simply request that you change the cover design when the book is re-printed. If you would be willing to change the design sooner than that ..., we would be willing to contribute a reasonable amount toward the costs of doing so. By taking this step, you will help us to ensure that the Jack Daniel's brand will mean as much to future generations as it does today.

We wish you continued success with your writing and we look forward to hearing from you at your earliest convenience.

It's not just the pleasant tone that is unusual here, it's the "demand." Rather than get all huffy and demand the books be taken off the shelves, Jack Daniel's asked that the cover be changed when (or if) there is a reprint, and actually offered to help pay for that if he was willing to change the design now. I assure you that is not something you see every day.

Certainly, the company understood the potential PR value of this kind of response, and it was right about that. It's getting lots of good publicity, and the coverage is also helping the author—I'm not sure how well it was selling before, but as of right now (Thursday) it's at #18 on the Amazon.com 100 list. Seems like people really should be buying more Jack Daniel's as a result of this (and maybe they are), but it seems like everybody wins here regardless. Smart call, whiskey maker.

For a prior example of a good way to respond to a more traditional cease-and-desist letter, see here.

Goat Man Mystery Solved!

"I thought I wanted answers," said Coty Creighton, who discovered Goat Man roaming the wilds of Utah on July 15, "but I was naive. I should have left well enough alone. Now I just want the mystery back." His disappointment stems from the fact that someone contacted the state Division of Wildlife Resources on Monday and revealed that the creature Creighton saw was not in fact a mysterious cryptid some had compared to the legendary Bigfoot, it was some 57-year-old dude from California in a goat suit.

It is sad that the mystery (although, I think, not all the humor value) is now mostly gone. Of course, I knew this when I wrote the earlier post, as these are the kind of things I make it my business to know, but I wanted to give you the chance to experience, however briefly, the mystery that was Goat Man before it became tainted by truth. Such is my regard for you, the reader.

But now you know, or at least you know more than you did. The man, who understandably did not give his name, reportedly called the division's conservation outreach manager (Phil Douglass) on Monday "on the advice of a friend from Utah," and provided information "that substantiates he was the person in the goat suit photographed by Coty Creighton on July 15."

"He gave me details that convinced me it was him," Douglass said, which immediately conjures up every Law & Order episode in which a suspect knows details "only the person in the goat suit would know." According to Douglass, the man said he was a hunter who had traveled to Utah "to test out a goat suit in preparation for an archery hunt of mountain goats in Canada" next year. "He found out about Utah," Douglass said—apparently someone's plans to conceal the state have been foiled—and learned "that it was fairly easy to get close to the goats" for training purposes. (Why the goats of Utah are easier to get close to than other goats, he didn't say.)

So off he went to Utah with his goat suit. If you're wondering, this was crafted from a hooded painter's suit covered with Polarfleece for fur. The man also "wore a hat backward, pulling the brim down to his chin to look like a billy goat's beard," Douglass said, something I'm completely unable to picture but I'll take Goat Man's word for it. This may not have been his own invention, because the man told Douglass that "there are small groups of hunters who also wear goat suits" to get close to goats, and presumably kill them.

I'd very much like to see one of these groups patiently stalking an unsuspecting herd of mountain goats or whatever other live nonhuman vertebrate creature they might be craving at the time, and wait until they are just outside bowshot to spook their prey with a bullhorn. "WARNING: GOAT MEN ARE APPROACHING. DO NOT BE FOOLED BY THAT BACKWARDS HAT THING." Then I would flee because the Goat Men probably also have rifles.

Although Creighton believed Goat Man knew he had been spotted, he told Douglass that he actually had no idea he was being watched, let alone photographed. "He told Douglass that he shot video of himself near the goat herd, frequently had to adjust the hood of his costume and had to take breaks from crawling on all fours," which is presumably what he was doing when Creighton took this picture:

I can't quite make out whether he was smoking a cigarette or maybe having a beer during this break, but I'd like to think so. The thing is, you might get away with that kind of thing in Utah, since the goats are apparently so easy there, but I wouldn't try it with the big-leaguers up in Canada. They'd spot that in a heartbeat.

Or if not, I'd point it out to them. "HEY, GOATS DON'T TAKE SMOKE BREAKS, DO THEY?" And then I would flee.

You People Quit Bothering Goat Man

Goat Man, Lurkin'

"The sighting of a man dressed in a goat suit on a Utah mountain is causing concern among state wildlife officials," begins this report on the recent sighting of a man dressed in a goat suit on a Utah mountain. Why? Is wearing a goat suit illegal in Utah? No! It is not! So don't get all concerned, government!

The man in the goat suit, who is being referred to by at least one legal blogger as "Goat Man," was spotted on July 15 by Coty Creighton, a photographer out hiking near Ogden, Utah. (These pictures, of course, are his.) Creighton spotted what appeared to be (and as you already know, in fact was) a man in a goat suit "trailing behind a herd of goats on his hands and knees." According to Creighton, the man "froze" when he noticed someone watching him, either unsure what to do next or trying to look more like a goat. (Since the report says Goat Man then "sat on a hill for several minutes," and he sat like this (left), it was probably the former.) After a while, Goat Man "got back down on his hands and knees and hurried to catch up with the rest of the herd."

Goat Man, Chillin'

Again, all of this was perfectly legal. It is a third-degree felony in Utah to steal a goat suit, but only if the goat is still wearing it. It's also illegal to kill (or "wantonly destroy") a species of protected goat, but Goat Man was not seen to be harming any goats. And of course it's illegal (in Utah) to do what some of you degenerates are surely thinking Goat Man had in mind: Utah forbids doing that with "any live, nonhuman vertebrate creature." So, good news, I guess, in that invertebrates are fair game in the Beehive State (that would include bees).

But again, no evidence at all that Goat Man was doing anything other than observing these particular vertebrate creatures. Officials said he could be simply a "wildlife enthusiast," which again is not illegal depending on what they mean by that.

Government officials claimed, of course, that their concern was only for Goat Man's well-being and that they just want to talk to him about the potential dangers. "While officials said what the man is doing is not illegal," the report states, "they're concerned as the hunting season approaches that he could be mistaken for a goat, or attacked by a live goat," the latter being a concern because rams are highly territorial.

Especially because, you know what else is approaching? Goat mating season. I bet if you included that in the warning you'd have no further sightings of Goat Man at all, at least until spring.

French Demand Compensation for Plantagenet Murder

Prof. Jonathan Turley reports that the French city of Angers has demanded restitution for the murder of Edward Plantagenet, the last member of the Plantagenet dynasty that ruled England from 1154 until 1485. The city would like an apology and 513 years' worth of compensation, but says it would accept the Crown Jewels instead.

This is an entirely legitimate legal claim and not at all an attempt to glom onto Queen Elizabeth's jubilee for tourism reasons.

What's the connection between these French people and the English throne? It looks like the first connection that mattered was between Matilda, the daughter of King Henry I, and Geoffrey of Anjou (the county in which Angers was located). Their oldest son became Henry II of England in 1154. After 331 years of exciting adventures, the ruling line ended with Richard III, who was killed in battle by the forces of Henry Tudor (Henry VII). (Since history is written by the victors, Richard III now appears in plays as a murderous hunchback and the Tudors got their own miniseries on Showtime.)

But Angers doesn't appear to care about any of those guys (especially the hunchback), only about Edward, Earl of Warwick. He had a claim to the throne (he was Richard III's nephew, or something), but was only 10 in 1485, and judging from this portrait was so poor that he could not even afford to be drawn from the neck down.  But Henry threw him in the Tower of London anyway and kept him there until he was old enough to kill, basically, which happened in 1499. He was the last legitimate male Plantagenet.

Angers is sponsoring a petition drive about this 513-year-old outrage and will send the official results to Queen Elizabeth II (House of Windsor) in September. This will coincidentally coincide with Angers's annual cultural festival. A spokesperson for the city admitted that the petition "had little chance of success" (the original crown jewels were done away with by Oliver Cromwell anyway), but said that the crime against the Plantagenets was worth remembering. According to the report, he also "encouraged British people to visit Angers, which has medieval buildings including a magnificent castle which recalls the glory days of the Plantagenets."

Maybe the Queen will invite the people of Angers to come visit the Tower of London to see the crown jewels they can't have? "We would also be quite pleased to show you the chopping block," she could say, "although it is only a replica. We have since had the one Eddie saw close up made into a nice ottoman on which we rest Our royal feet from time to time."

For an even more heroic attempt to ignore the statute of limitations, see Knights Templar v. Pope Benedict XVI, et al., filed in 2008 and bitching about the seizure of plaintiff's assets by Pope Clement V, a mere 701 years before.