Fuckstickery

The Deflategate Decision: Brady Has Been Freed!

Screen Shot 2015-09-03 at 11.32.25 AMemptywheel sez: We interrupt this in depth legal discussion to point out that the WOLVEREENIES ARE BACK!!

 

Better still, they’ve got unbeatable juju going into tonight’s game against Utah. That’s because (unreported among all the other less important Deflategate legalisms) the Wolvereenies have ALREADY worked together to score today.

 

That’s right.

You see, Jay Feely and Tommy Brady combined to score a point in Judge Berman’s decision today. On Monday, former UM kicker Jay Feely ’99 testified on behalf of former UM QB Tom Brady ’00 (just like me!!!). Feely explained about how when the Jets got busted for fucking with their balls in 2009 — in a game against Division rivals the Pats, against Tom Brady — he, the kicker who allegedly benefitted from the improperly doctored balls, faced no punishment.

If you’re not going to punish Jay Feely, Judge Berman suggested, you can’t punish Tommy Brady. At least, you can’t expect Tommy to think he’ll get punished, because his college buddy didn’t in the equivalent situation.

Anyway this is surely a great omen for the Wolverines and their new savior Jim Harbaugh.

So go Blue!


Deflated BallWell, at long last love, the #Deflategate decision from Judge Richard Berman in SDNY is in, and the big winner is Tom Brady.

The 40 page full decision is here

One key line in the decision on the general right of the court to set aside an arbitration is:

“The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process” (citing Kaplan v. Alfred Dunhill of London, Inc.)

Boom.

I previously did a very partial background on the case, and how it germinated from blatantly false information (still uncorrected and/or withdrawn) from Chris Mortenson and ESPN. The bottom line is the NFL’s position was that the Commissioner, Goodell, simply has the power to do whatever he wants under Article 46 of the NFL/NFLPA collective Bargaining Agreement (CBA).

The Players Association, on behalf of Tom Brady, makes four core arguments in seeking to vacate Goodell’s arbitration decision:

1) There was not actual notice to Brady of prohibited conduct and that he could be suspended for it (See here for a further description)

2) That there were not adequate and reliable standards for testing game balls, and therefore punishment based on the same is unreasonable

3) That Goodell was a blatantly partial arbitrator, and

4) That the arbitration process lacked fundamental fairness in that key witness testimony and evidence was unreasonably denied to Brady and the NFLPA (See here for a further explanation).

Frankly, Brady is arguably entitled to a decision in his favor on all four. What Berman did is, primarily, rely on the first ground, notice with a backup of ground four, lack of fairness from denial of the Pash testimony and investigative notes.

CN_SebJWIAUg8iYThe critical language from the decision is:

The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four- game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.

So, there you have it, please feel free to unpack this further in comments. This is a momentous decision, not just for Brady and the NFL, but, as I explained in my earlier post, for collectively bargained labor in general. There is a lot of importance here to much more than Tom Brady. Though Brady is certainly the big winner today.

Brady is free! For now anyway, it is nearly a certainty that the NFL will appeal to the 2nd Circuit and we will go through this all again.

ESPN Is Gutless, Chris Mortenson Has Tiny Deflated Balls and Other Deflategate Trash Talk

Hi there! Been a while, hope this account still works and State Secrets or something has not overcome due process on this here blog.

So, here we are in the waning days of summer. I would have written more about the Formula One Circus but, frankly, it has mostly bored the heck out of me this year. The, still, best driver in F1 is stuck in a crappy underperforming McLaren and has to drive his ass off and hope for attrition to even score a point. That would be Fernando Alonso if you haven’t guessed. While lesser drivers, with far better machinery, you know, those like the two insolent crybabies at Mercedes, have such superior equipment that they wrongfully think they are kings. It is all enough to make an old school fan like me puke. Well, enough about the circus, let’s get to the real meat and potatoes of this blog’s sports coverage, the NFL.

As you may have heard, there is a little kerfuffle called #Deflategate that has been going on since before the last SuperBowl. On one side, we have an arrogant all powerful giant human jackass (no, not Dick Cheney this time) named Roger Goodell, and on the other, we have the epitome of bright and light, the All American Hero, and lover of supermodels, Tom Brady. If you think this is not a fair fight, and Brady is the clear winner, advance and collect your winnings.

Okay, back to Chris Mortensen’s apparently shriveled journalistic balls. Let me be clear, this is just opinion (even if putatively well founded opinion), but what kind of “balls” does a man who is spoon fed lying ass bullshit by “NFL Sources” in the form of a tweet that said:

The NFL found 11 of the Patriots’ 12 game balls for Sunday’s 45-7 AFC Championship Game win over the Indianapolis Colts were under-inflated by two pounds per square inch each, league sources told ESPN’s Chris Mortensen on Tuesday.

Obviously, as the actual testing (not to mention the late great “Wells’ Report) confirmed, that was an outright giant flaming LIE. Call it what it is, it was not a minor discrepancy, it was an outright flaming lie. A lie that led directly to the public outcry that begat what we now know as the multi-million dollar boondoggle bullshit “#Deflategate”.

Peter King (no, not the militant chickenhawk moron from Long Island, the other one from Sports Illustrated) was fed the same blatant inflammatory lie by what appear to be NFL officials, but King had the balls, and intellectual integrity, to apologize.

Did Chris Mortensen or THE WORLDWIDE LEADER, ESPN, have the intellectual and moral integrity to apologize? No, of course the craven bastards did not. In fact, Mortensen silently deleted his original tweet. What a gutless and tiny balled coward. And ESPN has proved itself to be an oppressive behemoth that is willing to put itself, and its allegiance to the NFL, above their journalistic ethics. How pathetic.

That blatantly false report germinated the entire waste of time that is now #Deflategate. Seriously, without Mortensen’s and ESPN’s relentlessly trumped up and featured false report, tagged on by King and SI, there would simply never have been #Deflategate. But it was clearly something the NFL wanted pushed, and they got their want, one way or another. Oh, by the way, is there further evidence that ESPN and Chris Mortensen may be dishonest news sources without a shred of credibility? Yes, yes there is. Mortensen reported that the Kraft family and Patriots had apologized to him. Was that true? No, according to the Krafts on behalf of the Patriots, that was blatantly false.

Here is the thing: #Deflategate is a house of cards built on a pile of dung. If you have an iota of concern for fundamental fairness and due process, you ought be offended – even if this is only a civil labor law mess involving millionaires against billionaires. It all matters, and the labor law principles in play here are beyond critical to all union workers and collective bargaining agreements, not just those of rich athletes. So, yeah, don’t kid yourself, this matters. A lot. If Tom Freaking Brady cannot get fundamental fairness and due process on a collectively bargained agreement, how the hell do you think a UAW, Teamster, teacher, or any other union member will? If you haven’t noticed, labor in this country is under direct attack. Don’t be the guy (or girl!) that aids that attack just because this iteration of the conflict involves Tom Brady and/or rich athletes. This matters, both in general as to all workers under labor agreements, and to your hometown sports teams and players too.

So, there you have Chris Mortensen and his tiny disingenuous balls, but what about some overall facts and law on #Deflategate? Got you kind of covered. And this is especially timely since the last big actual live court day is coming up on Monday, August 31st. So, here we go with some various background resources for you. If you are interested, please read them, you will be better informed. If not, that is cool too, but understand there are very good reasons I take the stances I have on #Deflategate. Off we go!

Soooo….where to start? How about a prediction, you want a prediction?? Sorry, don’t have one. BUT, I will say this, I have read most of the transcripts and filings, and I do not subscribe to the thought that Judge Richard Berman’s clearly antagonistic position to the NFL/Goodell side is all posturing trying to force a settlement. Is there some of that going on? Trust me, almost certainly. By the same token, by my experience, and I have a little, there is simply no way Berman is being as consistently pointed and dubious of one side, the NFL/Goodell, as he has been without being convinced their argument is lame. Yes, judges often play “devil’s advocate”, but what Berman has engaged in strikes me as well beyond that.

So, while I won’t make a prediction, the Brady/NFLPA side must feel pretty positive about how it has gone so far. I am understating that a little.

So, on what grounds do I think Brady and the NFLPA may win on? Two grounds – 1) Notice and 2) Process denial regarding evidence and witnesses by the NFL, to wit, Jeff Pash and related evidence.

First off, the “Notice” argument. A new net friend I have met in this process, but one I greatly respect, Dan Werly, has summarized “Notice” quite well here.

Then there is the “Pash preclusion”. Jeff Pash is the General Counsel to the NFL. He is also its Executive Vice President. Those are not necessarily copascetic if a corporate entity wants to maintain even the reduced semblance of “attorney/client privilege” of having a “corporate counsel”. Seriously, this kind of privilege comes close to vapor when you commingle your attorney with corporate leadership. But that is exactly what the NFL has done here, and much more. And that is peanuts compared to the fact that the NFL made Pash the effective, really de facto, co-independent “investigator” (they even stated it in a press release) along with Ted Wells and then gave Pash editorial control over the so called “Independent Wells Report”. then Goodell refused to make Pash available for testimony, stating that he was irrelevant and privileged.

Ooops, did the arrogant Goodell and the NFL bugger their own ruse beyond belief as to Pash? Yes, and it is crystal clear. Even Judge Berman was incredulous.

pic-5

Then, later…

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Yes, arbitration decisions are given “great deference” by courts, and generally are not disturbed. But they can be when they present genuine issues of fairness and partiality. #Deflategate may be a silly case to most of the lay public, but these are serious and critical issues in labor law, and if the exacerbated issues in the Brady case cannot be addressed by a court, then pretty much no labor arbitration can ever be. For a far more detailed explication of the Pash problem, see this outstanding piece by Ian Gunn.

I invent the wheel only when I need to (and mostly when clients pay me to); I try to not do so when it has already been done by worthy people before me. Dan Werly, Dan Wallach, Michael McCann, Brian Holland, Alan Milstein, Raffi Melkonian and Ian Gunn are folks that did the hard lifting while I was, mostly, away frolicking at the beach in La Jolla when the most critical filings came out. All fantastic people that I came to know because of Roger Goodell’s #Deflategate folly. Hat’s off to them, as well as Stephanie Stradley with some fantastic early scene setting. These are all serious people that you should follow, not just for #Deflategate, but for any sports related law and thought. I think all, including me, feel Brady and the Players Association have the far better hand, in both posture and presentation, than Goodell and the NFL. Really, it is not even close, though there is no telling what Berman will do in the end. By this time next week, we will know.

Welp, I may have focused on #Deflategate more than I intended. Or not. This post was meant as an acerbic discussion point, not a full on explication, which would have consumed thousands of additional words. F1, and sports in general have just been boring lately, as you can tell by how often I have bothered to write about them. But the legal machinations in #Deflategate have been fascinating, at least to me. The All American boy Brady, the Boris Badanov evil Goodell, the flamboyant crusading Player’s Association lawyer Jeffrey Kessler, the Snidely Whiplash Ted Wells to the calm but annoyed judge Richard Berman. The characters are all there.

So, that’s it. Rock on lug nuts. Trash talk like you are Michael Jordan. Do it up. But, if you don’t agree with my #Deflategate thoughts, you can send some Dead Flowers. By the US Mail. And don’t forget the roses…

A Tale of Celebrity Bon Vivant Civil Servants and Access Journalism

Screen Shot 2015-07-02 at 12.27.12 PMThere is a distinct problem in this country with excessive inbreeding of politicians, lobbyists and journalists. In a country where so many are now ruled by so few in power, it is becoming, if not already become, the biggest threat to American democracy. I would add in corporations, but, heck, who do you think the politicians, lobbyists and journalists represent at this point?

Now, corporations and their money through their mouthpiece lobbyists have long had a stranglehold on politics, whether through the corps themselves or their wealthy owners. But the one saving mechanism has historically been claimed to be the “Fourth Estate” of the American press who were there on behalf of the people as a check on power. But what if the Fourth Estate becomes, in fact, part of the power? What then?

What if the crucial check on federal and state power is by journalists who are little more than stenographers clamoring for access and/or co-opted social friends and elites with the powers that be? What if the sacrosanct civil servants of this country are nothing but Kardashian like shills out for a free gilded ride before they leave office to cash in with private sector riches befitting their holiness?

Golly, if only there was an example of this incestuous degradation. Oh, wait, get a load of this just put up by Kate Bennett’s KGB File at Politico:

In a generally stay-at-home administration, one member of the Obama Cabinet is proving to be the toast of the town. Jeh Johnson, the oh-so-serious-on-the-outside secretary of Homeland Security, is fast becoming Washington’s No. 1 social butterfly, dining out at posh restaurants like CityCenter’s DBGB, as he did last week with a small group that included Amy Klobuchar, Steny Hoyer, CNN’s Jim Sciutto, the New York Times’ Ashley Parker, author Aaron Cooley, and lobbyist Jack Quinn and his wife Susanna.

For a guy who’s been running a 24/7 war against terror since 2013, Johnson seems to have a lot of time to trip the light fantastic. He can often be seen enjoying regular catch-up sessions with BFF Wolf Blitzer at Café Milano (back table, naturally); and mingling at black-tie soirées, such as the Kennedy Center Spring Gala, the Opera Ball, or a champagne-fueled VIP garden party at Mount Vernon to toast French-American relations, all of which Johnson attended—and stayed at beyond the requisite cocktail-hour schmooze.
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“There’s rarely an invitation he’ll turn down,” says an aide to Johnson, who prefers to remain anonymous, of his boss’s penchant for spending three-to-four evenings a week at social functions — and actually enjoying them.

I am not going to bother to dissect that, it speaks all too clearly for itself. And it is hard to figure which is more pukeworthy, the bon vivant civil servant or the elitism displayed by the supposed watcher last bastion journalists. It is all of the same cloth.

What’s wrong in Washington DC? Here you go. When the pathology on the boneyard of American democracy is run, this vignette will appear.

Maybe this is why Tom Vilsack could find a spare couple of hours out of one of his days to explain in a deposition why he and the Obama Administration knee jerkily demanded Shirley Sherrod’s resignation based upon a crank fraudulent video by a schlock like Andrew Breitbart.

Because “Executive Privilege” now means “Privileged Executives” who can party all night with their elitist journalistic pals and screw the rest of the government, and people it serves, during the day. Just like the Founders envisioned obviously.

I Am Ted Williams’ Head

sport_art_10-15_t658Okay, long story short, a couple of months ago my wife set me up with her dermatologist for a head to toe skin exam to insure against skin melanoma. A perfectly reasonable thing, though, to be honest, would not have otherwise been on my pretty much lunkheaded list of things to do.

Okay, so, today was that appointment. A rather attractive woman doctor searched me from head to toe (no, not “there” you perverts) and found, after five decades of life in the desert sun, that I had zero issues. But then she asked if I had any “concerns”, and a friend had, a couple of months ago, pointed out some splotches on by bald ass head.

So, I mentioned that and the pretty doctor explored my cranium and, among randomly assholey and curmudgeonly thoughts, found several “surface areas of concern” on my scalp. She promptly took out a Batman Mr. Freeze like can of torture and nuked my crown with some freaking liquid hell. Cool at first, but then quickly like a blowtorch cutting into your skull. Ow!

Oh well, once over, stung a little, but no big deal. Except I looked at me skull in teh mirror and it looks like a lunar landscape. Jeebus.

The Coming Trump Legacy On Immigration

donald-trump-bad-hairHere is a bloody secret about blogging: The best ideas you express often come from others, even if you value add on to them. Welp, there will be no value adding on here, this post is 100% the work of our longtime friend at both Emptywheel and FDL, the one and only Peterr:

I had this vision of Donald Trump taking down the Statue of Liberty, replacing it with an even larger figure of himself, with a new poem inscribed on the base befitting his views on immigrants.

The New New Colossus

Not like the New Colossus, French-built bile
With calling torch and open arms so grand;
Now on this isle a Grander One shall stand:
A mighty huckster with a scam, whose smile
is a racist, hateful sneer, with his pile
of ego-sculpted hair. From his grasping hand
comes a devil’s contract; his beady eyes demand
payment ‘ere any travel one more mile.

“Keep, foreign lands, your homeless poor,” cries he
with flapping lips. “Give me your greedy, your rich,
Your coddled wealthy yearning to pay me,
the grasping powers drawn here by my pitch.
Send these, the makers, ready with my fee;
I snuff the lamp of Liberty, that bitch.”

I leave it to your imagination to envision the figure of The Donald standing astride New York harbor for yourself.

Okay, Peter is a long time friend, and his take totally merited publication. But Lady Liberty takes some attending to. You have to want the freedom of this country, you have to want it bad, and you have to be willing to fight for it, even when that freedom makes your blood curl (props to Sorkin’s American President). But wanting the American ethos is easy for an apparently gerbil topped pretender like Donald Trump. Trump wants the limelight, wants all the glory, and never wants to answer for the hell of stupidity, bankruptcy, loss of jobs and ignorance that he really stands for. Troll on Donald.

So many have given their lives for the right of a hollow shill to troll the American electorate. So many have died for that. So many just to give a blowhard clownshow jackhole the right to parade around like he is diddly shit other than the court jester and a sideshow amusement huckster.

The American people can propagate and tolerate an enormous amount of stupid, but not enough to let a pompous, bankruptcy generated, pompous jackass like Donald Trump through the door. Just an opinion, and a sincere hope.

Nope. George Bush was one thing, Trump is a bridge too far.

Meet Adam Kwasman, Arizona’s Racist Bigot Politician of the Month

With the latest furor over minor children and the border already in full swing on top of all the other immigration fear mongering going on in this election year, you would think you had about heard it all when it comes to preening idiotic nonsense from “conservative” politicians.

Think again.

Exhibit A: This somewhat beyond amazing story of Adam Kwasman, a current member of the Arizona State Legislature and a candidate for Congress in Arizona LD-1. Kwasman, in a mad rush to the gun nut bigot fest protest of immigrant children in southern Arizona, inspired by the Murietta hatred, saw a bus load of YMCA campers in a school bus on their way to summer camp. Kwasman, displaying every ounce of his razor sharp Einstein like brilliance, immediately concluded they were evil immigrants.

From Brahm Resnik and the Arizona Republic:

He [Kwasman] had tweeted from the scene, “Bus coming in. This is not compassion. This is the abrogation of the rule of law.” He included a photo of the back of a yellow school bus.

Kwasman later told me he saw the migrant children. “I was actually able to see some of the children in the buses. The fear on their faces…. This is not compassion,” he said.

But there was a problem with Kwasman’s story: There was no fear on their faces. Those weren’t the migrant children in the school bus. Those were children from the Marana school district. They were heading to the YMCA’s Triangle Y Camp, not far from the Rite of Passage shelter for the migrants, at the base of Mt. Lemmon.

12 News reporter Will Pitts, who is at the protest scene, says he saw the children laughing and taking pictures of the media.

Watch Brahm Resnik make an idiot of Kwasman at this link. I will not embed the video because I cannot get rid of the auto play command.

Obama White House Sponsors Young and Rich Narcissistic 1% Fucktards That Will Ruin the World

Proving it is never too late to shine your lame duck ass for a new generation of 1% oligarchs, Barack Obama laid open the real constituency of national politicians. And proved certain any inference that such was only the constituency and province of the GOP, Koch Brothers et. al is false.

If this is not stupid and ugly to the common Democratic fanchild, it is hard to imagine what is, or could be. From the New York Times hagiography:

On a crisp morning in late March, an elite group of 100 young philanthropists and heirs to billionaire family fortunes filed into a cozy auditorium at the White House.

Their name tags read like a catalog of the country’s wealthiest and most influential clans: Rockefeller, Pritzker, Marriott. They were there for a discreet, invitation-only summit hosted by the Obama administration to find common ground between the public sector and the so-called next-generation philanthropists, many of whom stand to inherit billions in private wealth.

“Moon shots!” one administration official said, kicking off the day on an inspirational note to embrace the White House as a partner and catalyst for putting their personal idealism into practice.

“Moon shots!”

I guess the Obama White House couldn’t fathom a better phrase for coming in their pants over big money.

If there is a more sick comment on the perverted state of US national politics, it is hard to imagine what it would be.

We are ruled by a bunch of oligarchs, and political handmaidens that kiss the oligarch’s asses and hew their beck and call. If the fact the great once and forever symbol of the common citizen “hope and change”, Barack Obama, is such a distant leader, constantly beholden to not only the future of the moneyed class, but the current too, then there is no reality for the American public.

The well-heeled group seemed receptive. “I think it’s fantastic,” said Patrick Gage, a 19-year-old heir to the multibillion-dollar Carlson hotel and hospitality fortune. “I’ve never seen anything like this before.” Mr. Gage, physically boyish with naturally swooping Bieber bangs, wore a conservative pinstripe suit and a white oxford shirt. His family’s Carlson company, which owns Radisson hotels, Country Inns and Suites, T.G.I. Friday’s and other brands, is an industry leader in enforcing measures to combat trafficking and involuntary prostitution.

Oh my. And holy crap.

The New York Times penned a factual report of this sick instance. Will the New York Times, Washington Post, Wall Street Journal, or any of the other august opinion pages of national press, deign themselves honest enough to write opinion and/or editorial pieces recognizing this political cancer for what it really is?

If you did not view the video, and listen to the lyrics in the video above, do so. Because that is exactly the class of “super citizens” your elected leaders are beholden to. The handful of billionaires count for far more than the actual billions of people on this earth.

Want proof? Look no further than the “liberal”, “socialist”, “Democratic” Obama White House, who just demonstrated the problem in Technicolor.

And, before you chafe, of course it would be even worse with Republicans in charge. But the question is no longer just which party is in control of the levers of power (though it DOES matter for SCOTUS), but where the values of the country really are.

It is almost impossible to fathom the country’s values are with the pimple faced, Bieber banged, teenager scions of billionaires the Obama White House so calmly and cooly glad-hands.

[Seriously, watch the video from the one, the only, fantastic Tubes:

Young and rich
Everything I desire
Light bulbs with shades
in every room
And work is play–believe me
Nothing must come too hard
It comes in the mail
most everyday

Maybe our leaders should find a more representative, and morally balanced, set of leaders for the future.]

Lavabit and The Definition of US Government Hubris

Graphic by Darth

Graphic by Darth

Well, you know, if you do not WANT the United States Government sniffing in your and your family’s underwear, it is YOUR fault. Silly American citizens with your outdated stupid piece of paper you call the Constitution.

Really, get out if you are a citizen, or an American communication provider, that actually respects American citizen’s rights. These trivialities the American ethos was founded on are “no longer operative” in the minds of the surveillance officers who claim to live to protect us.

Do not even think about trying to protect your private communications with something so anti-American as privacy enabling encryption like Lavabit which only weakly, at best, even deigned to supply.

Any encryption that is capable of protecting an American citizen’s private communication (or even participating in the TOR network) is essentially inherently criminal and cause for potentially being designated a “selector“, if not target, of any number of searches, whether domestically controlled by the one sided ex-parte FISA Court, or hidden under Executive Order 12333, or done under foreign collection status and deemed “incidental”. Lavabit’s Ladar Levinson knows.

Which brings us to where we are today. Let Josh Gerstein set the stage:

A former e-mail provider for National Security Agency leaker Edward Snowden, Lavabit LLC, filed a legal brief Thursday detailing the firm’s offers to provide information about what appear to have been Snowden’s communications as part of a last-ditch offer that prosecutors rejected as inadequate.

The disagreement detailed in a brief filed Thursday with the U.S. Court of Appeals for the Fourth Circuit resulted in Lavabit turning over its encryption keys to the federal government and then shutting down the firm’s secure e-mail service altogether after viewing it as unacceptably tainted by the FBI’s possession of the keys.

I have a different take on the key language from Lavabit’s argument in their appellate brief though, here is mine:

First, the government is bereft of any statutory authority to command the production of Lavabit’s private keys. The Pen Register Statute requires only that a company provide the government with technical assistance in the installation of a pen- trap device; providing encryption keys does not aid in the device’s installation at all, but rather in its use. Moreover, providing private keys is not “unobtrusive,” as the statute requires, and results in interference with Lavabit’s services, which the statute forbids. Nor does the Stored Communications Act authorize the government to seize a company’s private keys. It permits seizure of the contents of an electronic communication (which private keys are not), or information pertaining to a subscriber (which private keys are also, by definition, not). And at any rate it does not authorize the government to impose undue burdens on the innocent target business, which the government’s course of conduct here surely did.

Second, the Fourth Amendment independently prohibited what the government did here. The Fourth Amendment requires a warrant to be founded on probable cause that a search will uncover fruits, instrumentalities, or evidence of a crime. But Lavabit’s private keys are none of those things: they are lawful to possess and use, they were known only to Lavabit and never used by the company to commit a crime, and they do not prove that any crime occurred. In addition, the government’s proposal to examine the correspondence of all of Lavabit’s customers as it searched for information about its target was both beyond the scope of the probable cause it demonstrated and inconsistent with the Fourth Amendment’s particularity requirement, and it completely undermines Lavabit’s lawful business model. General rummaging through all of an innocent business’ communications with all of its customers is at the very core of what the Fourth Amendment prohibits.

The legal niceties of Lavabit’s arguments are thus:

The Pen Register Statute does not come close. An anodyne mandate to provide information needed merely for the “unobtrusive installation” of a device will not do. If there is any doubt, this Court should construe the statute in light of the serious constitutional concerns discussed below, to give effect to the “principle of constitutional avoidance” that requires this Court to avoid constructions of statutes that raise colorable constitutional difficulties. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156–57 (4th Cir. 2010).

And, later in the pleading:

By those lights, this is a very easy case. Lavabit’s private keys are not connected with criminal activity in the slightest—the government has never accused Lavabit of being a co-conspirator, for example. The target of the government’s investigation never had access to those private keys. Nor did anyone, in fact, other than Lavabit. Given that Lavabit is not suspected or accused of any crime, it is quite impossible for information known only to Lavabit to be evidence that a crime has occurred. The government will not introduce Lavabit’s private keys in its case against its target, and it will not use Lavabit’s private keys to impeach its target at trial. Lavabit’s private keys are not the fruit of any crime, and no one has ever used them to commit any crime. Under those circumstances, absent any connection between the private keys and a crime, the “conclusion[] necessary to the issuance of the warrant” was totally absent. Zurcher, 436 U.S., at 557 n.6 (quoting, with approval, Comment, 28 U. Chi. L. Rev. 664, 687 (1961)).

What this boils down to is, essentially, the government thinks the keys to Lavabit’s encryption for their customers belong not just to Lavabit, and their respective customers, but to the United States government itself.

Your private information cannot be private in the face of the United States Government. Not just Edward Snowden, but anybody, and everybody, is theirs if they want it. That is the definition of bullshit.

[Okay, big thanks to Darth, who generously agreed to let us use the killer Strangelovian graphic above. Please follow Darth on Twitter]

Continuing Shutdown Resolution Shakedown Trash Talk

Whole lotta nothing going on in the nation’s capitol. Guess that is not exactly news, but, still, it seems extra fubar currently. Ah well, what to do? Rock and roll baybee. And trash talk, of course. Seriously, as I look up at my TeeVee right this instant, Ralph Reed is on CNN blowing some perverted shit out of his ass. Really, Ralph Freaking Reed. It is just stupid out there. On MSNBC, Alec Baldwin looks like he is sitting in a Chicago steak/chop house yammering with some twit I don’t immediately recognize. Oh, wait, it is Bill de Blasio, the soon to be chameleon new mayor of New York. Is he a Weatherman anarchist from the 60s or a neo-liberal from the present?? Who knows? Who cares? He will be far better than Mayor Bloombito, so teh New Yarkers are gonna have that going for them. Let’s play games.

Gotta start with the pros this week. Lot to talk about, but first off I would like to not that right now, the ‘Ole Geezer, Mr. Brett Favre, could play quarterback this Sunday better than what service the Bucs, Jags, Vikings and Giants at a minimum. And, arguably, maybe the Raiders, Bills, Cardinals and Steelers too. He is rested. And he is ready. And he is way more fun than the others. Bring back the FavRuh.

In case my lead has not exactly engrossed and hooked you, I guess we can talk about actual games. If we must. Okay. Here we go….I must admit I am strangely perplexed by weird games lately, as we are still early in the season and the wheat has not yet completely separated from the shaft. Well, except for STRONG ARMED PEYTON MANNING AND THE DONKOS! While Bieber Brady is still looking for his next hairstyle, Happy Faced Peyton is rolling. As long as Peyton keeps a Jockey’s Neck Like Bollocks, he could obliterate very sacred records this year. We shall see.

So, back to the offbeat games of interest. First up is Deetroit trying to shakedown the Brownies in the Dog Pound. Who are teh Kittehs? Hard to tell, but they need Megatron to tell. And he is questionable (though I expect he suits up and plays, like the stud he is). But Cleveland has a sneaky good defense, and there is some momentum in mistake by the lake land. If Brandon Weedon can get the Brownies offense 28 points or more, they well could win. But you have to figure Matt Stafford and Reggie Bush can put up that.

Steelers at Jets, Jets, Jets is another goofy game. Steelers can’t be as bad as they have shown so far, can they? Actually, maybe. And the Jets are a tougher D than some they have faced so far. This is a gut check game; if Big Ben and Stillers have any game at all, they will bring it. They might; but I am not betting on it. Cheese at Ravens is also interesting. League is sleeping on both right now, even though Baltimore is the defending Super Bowl champ and GB is, well still the Pack. Both seem still unsettled and adjusting to huge losses. Ravens lost by retirement and players moving on. Pack has lost by injury mostly except for Greg Jennings, who they let leave. Jennings ain’t the problem, the injuries are. This is a pick em, whoever wants it more will win.

The super rejuvenated Saints, and man have Sean Payton and Rob Ryan turned that gig on a dime, roll into Foxborough to meet the Pats. Later in the year, with a little more gelling, Bill Bel, Major Tom and the Whoevers win this game at home. Not right now though, Saints and Drew Breeeezz got to much jazz. And on Sunday night, we got Skins at the ‘Boys. Will take a heroic effort from RG III to win this; I think Romo will cut the bad edge off of last week’s disappointment.

In the student athalete category, seems like a somewhat quiet week. Guess the biggest interest is whether or not Mack Brown can pull a jackrabbit out of his ass, er hat, and upset Freepatriot’s Boomer Sooners. If not, Mack may get knifed by the time that giant schooner can roll a circle. Game is in Austin though, so there is that. PolitiFact Check rates this: Orange Crushed!

ESPN and some other cackling birds are clucking about Mizzou at the Dawgs in Athens Georgia. Nuh uh. Aaron Murray and the Hounds got WAY too much for the Tigers. Florida at LSU may actually be the best real contest of the day. Gators starting to live a little now that Driskel the water pistol is down for the count. Still, the Tigers in Baton Rouge in a big night game; gotta take the Po Boy home cooking there. Also the ‘Ole Ball coach and the Cocks are going to Sooo-eee-pigeeee land in Ar-kansas. The okies from Muskogee were not cool with those wheat stalks on the Kansas license plates, so they seceded and called if Our Kansas. Or, if Old McDonald spelled it, Arkansas. Or something. Am tempted to take Brett Bielema and the Hogs here. Just because. But I can’t, South Carolina is just a better team. Fighting Journalists may have a tough time in Camp Randall Stadium with teh Badgers. Would be brutal to lose two in a row after such promise, but Wisconsin is a decent team and is at home.

This weekend is the Japanese Grand Prix at Suzuka. Which used to be a penultimate and deciding race in the Circus schedule, but no longer. And no drama at this point, it is another Vettel and Red Bull year. Hard to be excited, I am, however, excited about next year and the new car specifications.

Also, baseball. Sadly, the Pirates got keelhauled by the Cardinals in the deciding game 5 of the Divisional Series and are out. Hopefully the Dodgers claim the Bum status of old and win the NL. As to the AL, hard to pick between the Tigers and Boston. Both great teams, both a lot of fun and interesting. But gonna be a Detroit Breakdown, so……Go Sawx!!

That is it folks. Shut it down baybee!

DOJ Gives Blackwater a Whitewash On Felony Charges

CryingJusticeSomething funny happened in the Eastern District of North Carolina today. Out of the blue in an extremely significant case, and without particular notice to interested observers, much less the public, the criminal case against former Blackwater executives for weapons trafficking, and a myriad of other weapons violations, ended. Poof! Gone with an undeserved and inexplicable sweetheart misdemeanor plea.

From local Raleigh outlet WRAL:

A federal weapons case against the defense contractor formerly known as Blackwater Worldwide ended Thursday with misdemeanor pleas by two former executives, who were fined and placed on probation.

The case stems in part from a raid conducted by federal agents at the company’s Moyock headquarters in 2008 that seized 22 weapons, including 17 AK-47s. An indictment alleged that the company used the Camden County Sheriff’s Office to pose as the purchaser of dozens of automatic weapons.

The indictment also alleged that Blackwater purchased 227 short barrels and installed them on long rifles without registering them and that company officials presented the king of Jordan with five guns as gifts in hopes of landing a lucrative overseas contract and then falsified federal documents once they realized they were unable to account for the weapons.

Gary Jackson and William Matthews, the former president and executive vice president of the company and both Navy Seals, pleaded guilty Thursday to one count each of failure to keep records on firearms. They were sentenced to four months of house arrest, three years on probation and fined $5,000.

The original indictment was fifteen counts, count em 15 counts, most all serious felonies with significant punishment in the offing. Now granted, a few counts were pared off after a motion to dismiss by a court order dated February 4, 2013, but significant and substantive counts remained viable against Blackwater executives Jackson and Matthews.

But, instead of taking them to trial, or even extracting a reasonable plea that did justice for the public, the DOJ collaborated with the defense and walked into court without notice today, filed a new information containing a single misdemeanor charge and proceeded to sentence them on the spot to a hand slap.

Here is how the official DOJ Press Release described it:

United States Attorney Thomas G. Walker announced that in federal court today GARY JACKSON and WILLIAM WHEELER MATTHEWS, JR. pled guilty before United States District Judge Louise W. Flanagan, to one count each of failing to make and maintain records related to firearms in violation of Title 18, United States Code, Sections 922(m) and 923(g)(1)(A).

Additionally, Judge Flanagan sentenced JACKSON and MATTHEWS to 3 years probation, 4 months house arrest with stipulations, and fined them $5,000.00.

According to the Criminal Information filed on February 14, 2013, JACKSON and MATTHEWS, between 2005 and 2007, were employees of a corporate entity formerly known as Blackwater which was a licensed federal firearms manufacturer and dealer, and whose responsibilities for a certain period of time included direct or indirect supervisory authority over employees whose duties included the making and maintenance of records required by federal law. (Emphasis added)

Oh yeah, there was one other mention of note in the release:

The corporate entity formerly known as Blackwater has entered into a Deferred Prosecution Agreement with the government in which it has agreed to extensive ongoing compliance programs and the payment of approximately 7 million dollars in fines.

How nice. The Deferred Prosecution Agreement was actually entered into and noticed back in August of last year. It was easy to see the DPA coming, and as much as the US Government relies on Blackwater/Xe/Academi for their security adventures, it was predictable they would be given a DPA (and, hey, DPAs provide lucrative paydays to former DOJ friends who get set up in cushy monitor jobs).

The DPA was easy to see coming, today’s sweetheart plea was not. No, it happened basically as a covert op on the public and interested legal community. Did you notice the bolded date in the DOJ press release? DOJ states the plea was entered on February 14, 2013. What is interesting is that it was not placed on the official court docket until today – at the same time Judge Louise Flanagan, a conservative Bush appointee, was accepting the plea and sentencing Jackson and Matthews, thus ending the case. All designed so the public would not know and could not have any input. Diametrically contrary to the fundamental precepts of the American justice system.

How little of a wrist slap is the sentence? I’ve had common DWI clients sentenced to more. Compare and contrast to the punishment the DOJ sought to impose on Aaron Swartz.

The sentence is now done and entered, but what about the process? It was a stunning affront to justice and the public right to know. I have complained relentlessly about the collusion between the DOJ and another Bush era criminal, former Office of Special counsel Chief Scott Bloch. But at least in Bloch there was minimal notice given to the public and we knew what was coming, in spite of inexplicable collusion between the DOJ and the criminal defendant. Not so in the case of these Blackwater executives, Jackson, Matthews, et al.

Even in Bloch, in spite of complete collusion on the part of the DOJ, the court set sentencing for nearly three months after the entry of the plea. Not so with Judge Flanagan and the Blackwater boys. How unusual is it that a Federal court sentences criminal defendants immediately in high profile important cases with important implications like this? VERY UNUSUAL.

In fact it is simply stunning, all the more so considering that the parties and the court hid the fact the plea was entered from the public and the court docket system in the period between the entrance of plea on February 14 and the plea acceptance and immediate sentencing today.

To give you an idea of how out of the ordinary such a sentencing on the spot is, there are directly applicable provisions in the Federal Rules of Criminal Procedure that must be specifically obviated on the record to even attempt it. Rule 32(c) provides:

(c) Presentence Investigation.

(1) Required Investigation.

(A) In General. The probation officer must conduct a presentence investigation and submit a report to the court before it imposes sentence unless:

(i) 18 U.S.C. §3593 (c) or another statute requires otherwise; or

(ii) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C. §3553, and the court explains its finding on the record.

(B) Restitution. If the law permits restitution, the probation officer must conduct an investigation and submit a report that contains sufficient information for the court to order restitution.

18 USC 3593 concerns death penalty cases, so the ONLY way Jackson and Matthews could have been sentenced today is for the court to have made a specific finding, based upon information on and in the record, and then stated the specific reasons for the decision, and evidence supporting it, all on the record.

Did Judge Flanagan do that? Well, we do not know because there is no sentencing minute entry on the docket as there normally is. It just isn’t there. What’s more, we cannot know if there was a stipulation to hide the plea entry and immediate sentencing plans in the plea agreement (docket number 364), because the plea agreement is SEALED.

All ability of the public to know this was coming, and to discern what really happened, has been secreted from the public. Secret justice (or, more properly, injustice).

How and why did all this occur? Undoubtedly because of the highly classified and incestuous relationship between Blackwater and the US Government, and the resulting ability of Blackwater to literally blackmail and extort concessions through graymail threats (See here for a short history of graymail).

So, through secrecy, classification, graymail and direct collusion with the DOJ, Blackwater, and its executive henchmen, win and the American public lose yet again. I have been practicing criminal law for 25 years and I am absolutely offended by what occurred in Judge Louise Flanagan’s courtroom today. Both she and the Obama Department of Justice should be made to answer for it.

[UPDATE: It appears the plea agreement itself is not completely sealed, it is just kept “unavailable” from the public docket. Upon information and belief, it can be viewed if you personally go to the clerk’s office for the Eastern District of North Carolina and ask to see it. The other items described in the post as missing from the docket entirely remain so missing.]

Emptywheel Twitterverse
emptywheel I'm so old I remember when we refused kids fleeing US-created drug war violence asylum.
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bmaz Hey @ESPN where is Chris Mortensen? Do you have @mortreport in witness protection or something? You ever going to apologize to Pats+Brady?
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bmaz @WALLACHLEGAL Trying to catch back up after a long day at my actual day job....Exactly what was amended in the amended order? Not seeing it.
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emptywheel @erinscafe If you're going to bigot from the Bible I think you should do it standing up. Ditch the lawn chair, lady.
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emptywheel Reup: The Loopholes in DOJ’s New Stingray Policy https://t.co/bIevipWNkD
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emptywheel @nickmanes1 Aerospace.
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JimWhiteGNV Wait. We're allowing a person known to materially support terrorists and to behead people readily into the US? #ArrestKingSalman
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JimWhiteGNV Get a job early and often... https://t.co/QJJUBla9Kj
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bmaz @HuffPostSports Good glad to hear it. Might want to reset the filters for the autonomous side. But @Travis_Waldron is superb!
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JimWhiteGNV Syria, Afghanistan, Iraq, Libya, Somalia. If the US would just stop fucking up countries, the world refugee problem would get so much better
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bmaz Congratulations to @HuffPostSports for producing the dumbest+most uninformed take yet on #Deflategate http://t.co/JFjsCX12U7
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emptywheel @LOLGOP It's best to learn that way bc bombing damage will show up on Google Maps, right?
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