The defendants are charged with a string of armored-car robberies. As part of its investigation, the Government obtained (and later produced) phone records for the period beginning September 1, 2010. One of the defendants also wants call records for July 2010, when one of the robberies took place, because he says that will support his claim that he was somewhere else at the time. Previously, the Government said it tried but failed to get the records from the service provider, and therefore "advised Defendant that it did not have the records." Actually, Government (this recent order states), Defendant thinks you probably do:
Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order related to cellular telephone data collected by Verizon, Defendant Brown now suggests that the Government likely actually does possess the meta-data relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.
"Meta-data," as you probably know by now if you didn't already, is data about other data but not actually part of it (my definition). For a phone call, the main "data" would be the conversation, and the "meta-data" would be things like when you made the call, what the closest cell tower was when you made it, the number you called, and so forth. That's what Brown wants, and what the Government told him it doesn't have and couldn't get. Only, it does have his meta-data, because it has everybody's meta-data:
As relevant here [the court went on], the [FISA] Order appears to authorize, under 50 U.S.C. § 1861, the production of “all call detail records or “telephony metadata” created by Verizon for communications … wholly within the United States, including local telephone calls.” The Order defines “telephony metadata” as “comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (MSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.”
I'm guessing Brown was a Verizon customer, but it probably doesn't matter.
Under 50 U.S.C. § 1806, the target of such surveillance can ask for the information obtained. If the Government claims disclosure would harm national security—and you get no prizes for correctly guessing whether it will do so here—then the court reviews the matter in private to decide whether the surveillance was lawful (otherwise the review is in open court). Accordingly, the court ordered the Government to make the national-security claim if any immediately (yesterday was the deadline), because the trial is apparently underway.
As the court noted, the Government could avoid this particular unpleasantness by producing the requested material and stipulating that it would not use it against the defendant. I shall now go see how it responded (if it did) and update accordingly.
Update: The docket available online doesn't show any response by the Government at all. There is a docket entry dated June 11, the day after the order was issued, that is described only as "restricted/sealed until further notice." That could be it, or it could be something else you're not allowed to know about.
Update II: The Sun-Sentinel reports that the Government asked for more time to respond (to be fair, they only had two days), and the judge agreed to allow "an extra week or two." "There are security procedures that must be followed," said an AUSA, and since this is a citizen asking for his own cell phone records, presumably the "security" problem lies in explaining just how the Government happens to have them when nobody else does. Or, more likely, in figuring out how not to explain that.
Nope. He does not:
Of course, neither did Alberto Gonzales, or if he did, he didn't recall:
Now, I don't know whether it's worse to not know anything or to not recall anything. I mean, if you don't know, you don't know, but if you don't recall, then you might know but not recall knowing or you might not know and not recall whether you know or not. Although I guess if you say you don't know, we don't know whether you never knew or whether you once knew but don't know now, which would be the same as not recalling. On the other hand, saying you don't know could potentially be disproven, like by a document showing you did know at the time you said you didn't. But if you say you don't recall, and then it turns out you knew, you could still just say you didn't recall. So I would say that saying you don't recall is worse because we can never really know whether you do or not.
I'm glad I could clear that up, although if they're both lying their asses off, which seems likely, it doesn't matter.
Presidential historian Michael Beschloss sends out some great stuff on Twitter (@beschlossDC). On Mother's Day, he tweeted this image of a letter from JFK to his mom, dated November 3, 1962. In it, the President tells his mother he has signed the copies of a photo he received from Soviet Premier Nikita Khrushchev, which Khruschchev apparently had previously autographed at the request of Mrs. Kennedy. He makes sure to tell her that he thinks the picture "is most interesting and will be highly regarded."
He does also mention that, since he is the President, it might be best if in the future she would check with him before contacting any other heads of state directly. Contacts by the President's mother "are subject to interpretations," he suggests, "and therefore I would like to have you clear them before they are sent."
This was first posted about a week ago by the JFK Library, and as they noted, this letter was written less than a week after the end of the Cuban Missile Crisis (in fact, the blockade of Cuba was still in effect at the time). They didn't say when Rose Kennedy had written to Mr. Khrushchev to begin with, and presumably it was well before the crisis started on October 14, but regardless it is highly amusing to imagine the President learning about this and then (probably after a facepalm) trying to figure out exactly what to say to Mother in this letter.
According to the JFK Library's post, she wrote back and said she understood and that it just hadn't crossed her mind that this might be a problem.
More evidence that even after you are all grown up and become the President or whatever, your mom will always be your mom.
The Obama administration on Wednesday is expected to grant members of the Senate Judiciary Committee access to its legal justification for killing suspected terrorists who are U.S. citizens.
Yep, after months of asking, the Committee will finally be granted a chance to see the still-secret legal memo rumored to explain the administration's basis for arguing that it can lawfully target and kill—without a warrant or trial—any United States citizen that it deems to be a terrorist. Only members of the House and Senate Intelligence Committees have seen it so far.
I agree with this decision. Since the Constitution gives Congress the power to, among other things, "define and punish ... Offences against the Law of Nations;" to "declare War ... and make Rules concerning Captures on Land and Water," to "raise and support Armies," and to "provide for calling forth the Militia to ... suppress Insurrections and repel Invasions," and given the existence of the Fourth and Fifth Amendment protections against government intrusion and stuff like that there, it does seem to make some sense that the Executive Branch would LET CONGRESS TAKE A PEEK AT ITS LEGAL REASONS FOR CLAIMING THE ABILITY TO KILL AMERICANS WITHOUT DUE PROCESS OR JUDICIAL REVIEW.
But that's just me.
On Twitter, @aves1234 noted the irony of this ad appearing next to the story on The Hill's web page:
That's a bomb, not a drone, but will almost certainly be mounted on drones when available and then dropped on appropriate targets, which, again, the memo reportedly says can legally include U.S. citizens. (As before, this should not necessarily be taken to mean I think we can or should freely bomb non-citizens.)
On the bright side, it's a small-diameter bomb, so maybe it won't be so bad.
Previous semi-rants on related topics include:
Like many lawyers might, he used three paragraphs rather than just the one word, but that's what he said.
For a while now the administration has been refusing to answer this question one way or the other, which anyone with half a brain knew almost certainly meant "yes." But in a letter dated March 4, the Attorney General finally responded to Senator Rand Paul's question whether "the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial." Sen. Paul actually asked John Brennan that question, but Brennan couldn't or wouldn't answer it during the hearings on whether he should be the next head of the CIA. (That also meant "yes.") Now Eric Holder has answered it for him.
Here's his letter, which is not that long and which you should read in full if you don't hate Freedom:
Dear Senator Paul:
On February 20, 2013, you wrote to John Brennan requesting additional information concerning the Adminìstration’s views about whether “the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial."
Here comes the answer! Ooh! I'm having a Constitutional Moment!
As members of this Administration have previously indicated, the U.S. government has not carried out drone strikes in the United States and has no intention of doing so.
Uh, let me just interrupt again here to point out that this is not a "no." And that's not good. Oh, well, go on:
As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.
The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront. It is possible, l suppose, to ìmagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.
Were such an emergency to arise, l would examine the particular facts and circumstances before advising the President on the scope of his authority.
Eric H. Holder, Jr.
Well, the word "no" does appear in that letter, but only as part of the phrases "no intention of doing so," "we hope no President will," and "no choice," none of which are really what I was looking for there. In fact, they are the opposite of "no."
Just to review, the Attorney General just said yes, the President does have "the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial." That's funny, because I'm looking at some amendments here (I'm thinking IV, V, VI, and VIII) that say he doesn't.
Has it even occurred to them that using lethal force against a U.S. citizen in the U.S. without trial would have done nothing to prevent Pearl Harbor or September 11, and would have been an unnecessary response to either?
Also, Brennan's nomination was just approved 12-3 by the relevant committee, so that's a good sign too, for drone aficionados.
Update: Looking at that letter again, I see that Holder carefully left out "U.S. citizen" from the operative sentence, and actually said only that the President could authorize "lethal force within the territory of the United States." Well, he was asked flat-out about using force against "U.S. citizens," and (at best) chose to avoid the question again. To me that is still a "yes."
Update Update: A reader makes the fair point that as to September 11, you could argue that "using lethal force against a U.S. citizen" would have been justified to shoot down one or more of the planes. But while that would result in the death of citizens, I don't think it would be using force "against" a citizen in the way Sen. Paul, for example, was using that word (and the passenger's right to a "trial" would not be relevant either). Better argument: the use of force in defense of a third party is justified anyway, so there would probably be little question that the President—or anyone else who has an air force—would be acting legally in that situation. But the context of the whole debate right now is the use of drone strikes to (more or less) target specific bad guys who are deemed to pose a (more or less) "imminent" threat. For that reason, too, I doubt Holder had the shoot-down situation in mind, but this is a fair point.
Pearl Harbor? Anyone?
NBC News has released a copy of a DOJ "white paper" (PDF) (source: Glenn Greenwald) that is said to summarize the super-double-top-secret memo that, we are told, sets forth the legal rationale for the President's asserted power to blow up U.S. citizens. You still aren't allowed to see the memo itself, probably because the power and brilliance of the legal thought shining forth from it would melt your face off like in Raiders of the Lost Ark. So, for your safety, DOJ wrote a memo about the memo and is letting you read that.
This version is still painful to read, but not immediately fatal.
I've written about this before (see "For Christmas, Your Government Will Explain Why It's Legal to Kill You" (Dec. 21, 2011) "AG Sort of Explains When and Why the President Could Drop a Bomb on You" (Mar. 6, 2012); and "Professor: Maybe Secret Legal Memos Are Secret Because They Suck" (July 30, 2012)) so let's just cut straight to the new memo. Hold onto your faces!
Here are the conditions under which the Department of Justice—and again, this is the U.S. DOJ, not one in Bazorkostan or wherever—has concluded that the President can have a U.S. citizen killed even though that person is not engaged in "active hostilities":
The memo actually says there are three conditions (2, 3, & 4 above), but assumes for purposes of the argument that the target is a "senior operational leader" as described. So let's call that a fourth condition.
Here I'm just going to mock the first two.
The other quote you may see in reports of this incident is: "You should know that evidence is not stuff printed from the Internet." That's also pretty good, although technically stuff printed from the Internet could be evidence, assuming you could authenticate it and convince a judge it's admissible. Most likely, though, the person hearing this from a judge (that's who said it) has not bothered to follow the rules of evidence. Since the judge was saying it to Orly Taitz, you can be sure that's what was going on.
As you may recall, I got sued not too long ago by Orly Taitz, although it would be more accurate to say that my name appeared on a piece of paper she said was a complaint and mailed to a bunch of people. That lasted a couple of weeks. See "Orly Taitz Is Trying to Sue Me, I Think," and "Orly Taitz Now 0-158," Lowering the Bar (Oct. 1 & 18, 2012). Taitz, of course, is the notorious Moldovan-American lawyer-dentist who has led the crusade to prove that Barack Obama is not a "natural born citizen" and so cannot legally be president. Like most of the actual Crusades, this one involves a bunch of people milling around and doing a lot of damage but never getting any closer to a goal that was pretty stupid to begin with. As I mentioned later on, the birthers do not appear to have ever won even a single court ruling and have lost somewhere around 260 times (it's a moving target).
Taitz added at least one to the number of losses in November, this time in an effort to force Occidental College in California to turn over Obama's college records to her. She sued the college (among others), and served a subpoena demanding the records. According to The Occidental Weekly, the college's general counsel contacted Taitz the day before a scheduled hearing, explained his view that the case was frivolous and asked her to withdraw it. In response, she claimed he was trying to intimidate her and also accused him of treason, apparently for daring to oppose her:
Your opposition will constitute Obstruction of Justice, Aiding and Abetting in the elections fraud in forgery and treason in allowing a foreign citizen to usurp the U.S. Presidency with an aid of forged IDs and usurp the civil rights of the U.S. citizens.... At any rate your opposition and your attempt of intimidation and your allegiance or lack of allegiance to the United States of America is duly noted.
(Also duly noted: her grammar is not so good.) If the email exchange she posted on her own website is accurate, there was nothing at all intimidating about his message.
Had she heeded it, she'd have saved four thousand dollars. That's the amount that Judge Charles Marginis sanctioned her after finding her arguments frivolous and unsupported by evidence, although as noted it was supported by "stuff printed from the Internet."
That brings us back to the title quote, which came from Jay Ritt, Occidental's attorney. "I would like to take credit for a spectacular job preparing papers and going down to the Orange County Superior Court and arguing this case and getting sanctions," he said in a podcast later, "but I honestly believe a rhesus monkey could have beaten Ms. Taitz and got a sanction award based on the awful lack of merit to the subpoena itself."
capable of complex vocal and non-vocal communication, but there is no evidence one has ever practiced law. Orly Taitz, on the other hand, somehow managed to pass the California Bar (although I haven't actually seen her written answers, which makes me a little suspicious). So I think we have to concede that, all else being equal, a rhesus monkey could not beat Orly Taitz in a legal battle.
On the other hand, all else was not equal in this case. Sometimes the law and facts weigh against one side to the extent that even the best possible lawyer for that side couldn't win, and if that's true, it follows that the worst possible lawyer for the other side couldn't lose. If Taitz's arguments were anything like the ones she usually makes, they had no chance of winning (they never have), and so in that sense it is probably true that Occidental could literally have rented a rhesus monkey to appear for it in court and still prevailed. That would not really be a case of the monkey defeating Taitz, though, just another case of her defeating herself.
I probably shouldn't have mentioned the monkeys, because I'm pretty sure their billing rates are a lot less than mine.
Well, the "We the People" petition site is getting even sillier, although I know that seems hard to believe. As I reported yesterday, a petition asking that Texas be allowed to secede was the first of many state-secession petitions to reach 25,000 signatures, thus entitling the signatories to have their opinions formally ignored by the White House. The same people or affiliated people now have petitions going for what looks like most of the 50 states (I didn't count), and of course there are now at least two counter-petitions asking for the secession petitioners to be deported.
Democracy is great despite the fact, or maybe because of the fact, that it's so completely ridiculous.
"Deport Everyone [Who] Signed a Petition to Withdraw Their State from the United States of America," reads this petition, which has no text other than the title but I think still gets its message across. A little nastier is "Strip the Citizenship from Everyone Who Signed a Petition to Secede and Exile Them," although its single sentence asking the president to do this by executive order is itself fairly polite. (Would doing this by executive order be legal? Of course not, but neither is dropping bombs on citizens or locking them up indefinitely without a trial, even if a Nobel Peace Prize winner is doing it.)
I think a better response, because it's funnier and less vindictive, is this one: In response to Texas's petition to secede from the United States and become its own country, the city of Austin is asking to secede from Texas and become its own state. "It is entirely feasible for Austin to operate as its own state, within the United States, in the event that Texas is successful in [its] current bid to secede," the petition says. It also asks to annex certain other presumably like-minded cities in Texas. The map is going to start getting pretty complicated if this catches on.
Like I said, the silliness does appear to be escalating, which is maybe unsurprising given all the calls for secession. Somebody wants Chief Illiniwek back as the mascot for the University of Illinois, and as important as that may be, do we really want the federal government intervening to resolve mascot disputes? Somebody at Texas A&M has a Heisman candidate they want the president to endorse. (Question: if Texas secedes, are Texans still eligible for the Heisman? Should College Station secede from Texas?) Somebody else is a big fan of thorium and wants the government to stop destroying it. "outlaw offending prophets of major religions," writes someone who (like most of these people, sadly) is in serious need of capitalization training and also needs to express himself more clearly. Do you want to outlaw prophets who offend you or to outlaw giving offense to the prophets? Actually, never mind—those are both unconstitutional.
Then there's "The U.S. Government Must Redress Wrongs Against the Chagossians," and at first I thought that had to do with Star Trek but it turns out to be a legitimate call to help the people who got evicted so we could build a military base on Diego Garcia in the Indian Ocean. So I shouldn't joke about that. But I still think the Star Trek joke is decent.
If the thorium lobby will also support the Chagossians, I would agree to take up both those causes.
Last week I mentioned that the lawsuit (if you can call it that) filed against me, the President of the United States, and a number of other dignitaries by birther/dentist/lawyer Dr. Orly Taitz had been dismissed. I also mentioned having seen a chart purporting to list every court ruling in the many cases that have challenged Obama's claim to be a "natural born citizen," and based on that I suggested that Taitz's record in court on these cases was 0-158. I heard from the person who compiles that chart, who kindly gave me permission to link to it, and after reviewing it again I need to make a couple of corrections.
First, it may not be correct to ascribe all these losses to Orly Taitz. Certainly there are other people involved in filing these things, including Keith Judd, who I mentioned here in a slightly different context, although a context that also involved him being in prison, and also Philip Berg, who I mentioned here. None of these people have ever won a single victory in their "birther" lawsuits, nor has anyone else, and it's also entirely possible that Taitz is involved in some or all of these other cases behind the scenes. But to be strictly accurate, while Taitz is zero-and-something, it may not be zero-and-158.
Second, the overall record is significantly worse than I thought, according to the "Birther Scorecard."
This chart, which is currently 70 pages long and lists 175 cases, includes short summaries and also links to almost all the cited orders, where they are available online. It's an impressive piece of work, created by Tesibria at What's Your Evidence? According to the Scorecard (last updated October 18), of the 175 cases she thinks can be fairly classified as "birther" cases, birthers have lost 166 and the remaining nine are still pending.
If you add up all the individual rulings, including those in appellate courts and the U.S. Supreme Court, the birther's arguments have been rejected (or appeals denied) at least 258 times.
As a bonus for me personally, I think I've also gotten at least one new entry for the Comical Case Names page from this, because one of these people apparently insists on filing cases as "Annamarie Last Name Uncertain." Not "Annamarie Doe" or something like that—as this court noted, "In her pleadings, Plaintiff indicates that her first name is Annamarie and that her last name is uncertain." But the captions actually read Annamarie Last Name Uncertain vs. [Whoever]. Nicely done, Ms. LNU.
In general I support the rights of the uncertain, but nobody seems able to even figure out what this person wants.