Please donate to the Emptywheel fundraiser. 

As you’ve no doubt already read, Vladimir Putin published an op-ed in the NYT last night, one in which he lectured Obama (in Christian terms) that no one should think of theirs as an exceptional country.

My working and personal relationship with President Obama is marked by growing trust. I appreciate this. I carefully studied his address to the nation on Tuesday. And I would rather disagree with a case he made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy. Their policies differ, too. We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.

And while NYT identified Putin’s potential conflict in giving such a lecture …

Vladimir V. Putin is the president of Russia.

… It did not reveal that the thuggish dictator has a PhD on the importance of energy in Russia’s future.

I mostly raise that because a key figure in John Kerry’s case for war, Elizabeth O’Bagy, got fired yesterday for lying about having a PhD. Kerry had used her work to make claims that the Syrian rebels are a whole lot more secular and peace-loving than, according to House Homeland Security Chair Mike McCaul, our own intelligence community believes them to be.

Meanwhile, amid complaints from at least one reader about the op-ed, NYT’s public editor provided an explanation (without, however, disclosing that Ketchum is the PR firm that contacted the NYT).

The Times editorial department was approached Wednesday by an American public relations firm that represents Mr. Putin, offering the piece. At the same time, Mr. Rosenthal said, Mr. Putin’s spokesman had called The Times’s Moscow bureau with the same purpose in mind.

Mr. Rosenthal agreed to review the article and quickly decided to publish it. It was posted on the Times Web site by Wednesday evening.

“I thought it was well-written, well-argued,” he said. “I don’t agree with many of the points in it, but that is irrelevant.”

[snip]

Rosenthal said there was no way of knowing whether Mr. Putin himself wrote the article – “with a public official you can never know,” because they tend to have staffers who write their speeches and other communications. But, he said, it needed virtually no editing and went through almost no changes. “It was an amazingly good translation,” he said.

Guess what?!?!

Our foreign policy caters to interest groups of all sorts. No matter the pretty stories we cloak it in, it is ultimately about serving someone’s interest (and that interest is increasingly second-hand for the average citizen of the United States). And while Putin didn’t admit to his PhD, he was clearly presented as the leader of a foreign nation.

Any arguments about foreign policy are going to be driven by the public influence industry, whether it’s a DC think tank or a giant PR firm. (Which is why you should support an independent site like Emptywheel!) Like it or not, Putin’s case on most issues save who launched the CW attack on August 21 holds together better than the US case thus far (Max Fisher fact checks it here; while I absolutely agree with his claims about Putin’s hypocrisy, I do question his trust in US assurances).

For that reason, among others, the thuggish Doctor is correct. The US would be well-served to stop cloaking its interest-based policy choices in the tawdry exceptionalist claims that worked — more for media reasons than fact — for the second half of the 20th Century (during precisely the period when Putin’s country improbably claimed to be the champion of oppressed workers). We have spent the last 12 years making it clear we don’t abide by those exceptional principles. And frankly, our arguments for or against war would be far stronger if we didn’t try to use that crutch. (The people who seem to object most strenuously to Putin’s op-ed seem to be those who cling to this myth most desperately.)

After 12 years, in any case, Americans have become well aware such myths don’t deliver them personal benefits.

We are, supposedly, a democracy. And if the Administration wants to bring us to war (but not in the “classic sense,” Kerry insists), it would do well to make a stronger argument than the thuggish Doctor.

Disclosure: Marcy Wheeler has a PhD that makes her an expert in, among other things, how the entrancing avenger Count of Monte Cristo helped pave the way for authoritarian Louis Napoleon.

This is fairly extraordinary. BuzzFeed reports that in an effort to alleviate some of the pressure from the UK it is bringing in the NYT — but just one reporter from the NYT — to report on the Snowden stories.

“In a climate of intense pressure from the UK government, The Guardian decided to bring in a US partner to work on the GCHQ documents provided by Edward Snowden,” Guardian spokeswoman Jennifer Lindenauer said in an email. “We are continuing to work in partnership with the NYT and others to report these stories.”

That reporter is not James Risen — who of course broke the original NSA story with Eric Lichtblau. It is not Charlie Savage — who had an important story based on the Snowden leaks already.

It is Scott Shane.

The Times’s Charlie Savage and other reporters have chased the NSA story aggressively, despite Snowden’s choice to go to fillmmaker Laura Poitras, theGuardian’s Glenn Greenwald, and Barton Gellman, who has written about the documents for the Washington Post. Snowden said he did not go to the Timesbecause the paper bowed to Bush Administration demands to delay a story on warrantless wiretapping in the interest of national security; he was afraid, he said, the paper would do the same with his revelations.

Now, Times reporter Scott Shane is at work on a series of stories expected to be published next month jointly with the Guardian, a source familiar with the plans said. The source said the internal arrangement has also been the cause of some tension in the newsroom, as other national security reporters working on the NSA story — Savage and James Risen, among others — are not centrally involved in stories based on the Guardian’s documents.

Scott Shane has an increasingly consistent ability to tell grand tales that serve the interests of The Powers that Be. And somehow his stories about extremely sensitive subjects like drones don’t get chased for leaks.

Was the alleviation of pressure tied to Scott Shane in particular, a journalist who hasn’t followed this story as closely as some of his colleagues?

[Note Update below]

In a rather remarkable decision just handed down by Judge Shira Scheindlin in the Southern District of New York (SDNY), has found New York City’s insidious stop and frisk policy violative of citizen’s basic Constitutional rights. From the NYT:

In a decision issued on Monday, the judge, Shira A. Scheindlin, ruled that police officers have for years been systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. Officers often frisked these people, usually young minority men, for weapons or searched their pockets for contraband, like drugs, before letting them go, according to the 195-page decision.

These stop-and-frisk episodes, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, according to the ruling. It also found violations with the 14th Amendment.

To fix the constitutional violations, Judge Scheindlin of Federal District Court in Manhattan said she intended to designate an outside lawyer, Peter L. Zimroth, to monitor the Police Department’s compliance with the Constitution.

The full decision and order is here.

This is a very strong decision, and it is based on trial evidence and specific findings of fact and conclusions of law that should give it some extra protection, compared to a straight legal decision alone, should the city appeal to the 2nd Circuit.

The court found that the practice violated both the 4th and 14th Amendments and denied equal protection. In so doing, the court basically confirmed that New York City had a standing policy that constituted blatant racial profiling. The court noted, in reference to the City’s belligerent defense of such an unconstitutional policy:

City acted w/deliberate indifference toward NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks.

The “Applicable Law” portion contained in pages 15-30 (by the court’s page numbering) is a hornbook primer on Terry stops and reasonable suspicion.

A few words from the court will close out this post:

New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it.

….

In conclusion, I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

Bravo Judge Scheindlin, and thank you.

More like this please; the federal courts of America owe the citizens the duty of reeling in 4th Amendment abuses by governmental entities. This is a start, but the Obama Administration’s surveillance programs demonstrate there is a very long way to go.

UPDATE: I neglected to include the separate “Remedies Opinion” issued by Judge Scheindlin, here is the link for that.

A few words from the court about the intransigence of NYC and NYPD:

I have always recognized the need for caution in ordering remedies that affect the internal operations of the NYPD, the nation’s largest municipal police force and an organization with over 35,000 members. I would have preferred that the City cooperate in a joint undertaking to develop some of the remedies ordered in this Opinion. Instead, the City declined to participate, and argued that “the NYPD systems already in place” — perhaps with unspecified “minor adjustments” — would suffice to address any constitutional wrongs that might be found. I note that the City’s refusal to engage in a joint attempt to craft remedies contrasts with the many municipalities that have reached settlement agreements or consent decrees when confronted with evidence of police misconduct. (footnotes omitted)

The defendant NYC and NYPD are very much not going to like Judge Scheindlin’s remedies and, thus, likely will appeal on that basis. As I said above, the decision itself looks pretty solid for appeal, the remedies may be another matter. Professor Orin Kerr thinks the court may have gone too far in broad scope based on this paper he previously authored on 4th Amendment remedies in 2009.

I am a big fan of Professor Kerr’s 4th Amendment analysis, but we occasionally differ. And we differ here. My review of Judge Scheindlin’s remedies and order reflects a set of cures targeted and appropriate in purpose, and broad only where necessary to effect said purpose (with possible exception of order to wear cameras). We shall see how they hold up on appeal, but the remedies look proper and necessary to me.

Univision’s Adriana Vargas just interviewed President Obama. After three questions about the immigration bill, she asked whether Obama would consider Ray Kelly to run Department of Homeland Security.

Obama, of course, was effusive about the idea of appointing Mr. Stop & Frisk to be in charge of the immigration system.

Vargas: Mr. President, New York Commissioner Ray Kelly has been floated for the next DHS Secretary. What is your take on it?

Obama: Well, Ray Kelly has obviously done an extraordinary job in New York and the federal government partners a lot with New York. Because obviously our concerns about terrorism oftentimes are focused on big city targets. And I think Ray Kelly is one of the best there is. So he’s been an outstanding leader in New York. We’ve had an outstanding leader in Janet Napolitano at the Department of Homeland Security. It’s a tough job. It’s one of the toughest jobs in Washington. She’s done an extraordinary job. We’re sorry to see her go. But you know, we’re going to have a bunch of strong candidates. Mr. Kelly might be very happy where he is. But if he’s not I’d want to know about it. ‘Cause you know, obviously he’d be very well qualified for the job.

Janet Napolitano? Outstanding leader.

Ray Kelly? Outstanding leader, according to Obama.

So Vargas then asked about a core DHS failure: Hurricane Sandy Recovery, where just a quarter of families have gotten FEMA relief (about half of the relief funding remains unallocated).

Obama boasts about spending a quarter of the disaster relief funds, then shifts the subject to Shawn Donovan.

AV: I have one last question regarding our geographical area of course and it’s regarding the efforts of recovery after Sandy. Only a quarter of the families have received FEMA resources. What would be your message to those families among them obviously a lot of Latino families?

PBO: Well, you know, we’ve distributed over $4 billion dollars since Sandy happened. $1.4 billion of that has been directly to families through FEMA. And we are continuing to not only try to get resources out. But also I’ve got a team headed up by Shaun Donovan, our Secretary of Housing and Urban Development to try to design a rebuilding process that strengthens these communities post-Sandy, so that if there are tragedies in the future they’re in a stronger position than they were. But, you know, individual families it’s always tough. Some may qualify for some assistance, but don’t feel like they’ve gotten everything that they need. You know, we’re doing as much as we can with the resources that we’ve been given from Congress. And we’re in close communication with Governor Christie and Governor Cuomo and all the local municipalities to do everything we can to help businesses and families get back on their feet. And we’re not going to stop until we get it done.

Obama’s “outstanding” head of Homeland Security, of course, is ultimately responsible for Sandy recovery.

And that’s apparently what he sees in Ray Kelly, too.

Get out the biggest popcorn bowl you own and extra napkins, find your cushy tushy pillow, and get ready for some serious entertainment.

Former New York State governor Eliot Spitzer (D) has thrown his hat in the ring for state comptroller. He will be running against Kristin Davis (R) for the same seat, along with other less well-known candidates.

Spitzer, you may recall, resigned in 2008 as governor after it was revealed he was Client No. 9 [PDF] in a federal case in which four defendants (not named Spitzer) were charged in regards to prostitution enterprise over state lines.

Davis, you will further recall, was the so-called “Manhattan Madam” arrested and prosecuted in the sweep of the prostitution ring related to the Spitzer scandal.

The popcorn is done, you may serve yourselves and make yourselves comfortable.

When you’re done laughing, that is.

When you’ve finished wiping the tears from laughing so hard, you may also want to revisit the case that caused Spitzer to resign.

Further, you may also want to take careful note of these key dates and events:

14-FEB-2008 — An op-ed written by Eliot Spitzer, Predatory Lenders’ Partner in Crime, was published in the Washington Post. It called out the White House about its actions which thwarted efforts of states’ attorneys general to prosecute predatory lending.

14-FEB-2008 — Spitzer gave testimony this same date to the U.S. House Committee on Financial Services.

10-MAR-2008 — It was first revealed to the public that Spitzer was linked to a prostitution ring.

12-MAR-2008 — Then-governor Spitzer resigned.

14-MAR-2008 — The Fed Reserve initially agrees to loan Bear Stearns at least $25 billion; within two days, Bear Stearns is sold to J. P. Morgan for only $2/share, a mere fraction of its worth a month earlier when it traded for well over $100/share.

The 2008 financial crisis was set in motion by the cascading pressure for liquidity after Bear Stearns collapsed.

A number of folks near and dear to us looked into the origins of the investigation that caught up Spitzer; it’s been said Spitzer’s bank turned over suspicious activity to the IRS. However, in light of recent disclosures about domestic spying and datamining, it might be worth asking again whether some other surveillance tripped up Spitzer — especially after the hinky extension on the original wiretap that snagged a call related to Spitzer.

Perhaps this is why Spitzer feels comfortable attempting a political comeback.

And perhaps he knows why the rest of the prostitution ring’s clients — a substantive number of them employed by Too-Big-To-Fail financial institutions — weren’t disclosed as he was.

In any event, the New York comptroller’s race ought to be highly entertaining if not informative. Stock up on popcorn, kids, and buy some popcorn futures.

As Charlie Savage reports, the CIA’s IG report on CIA-on-the-Hudson has finally been released. It finds that the decision to put CIA personnel at NYPD was ill-advised and poorly managed by CIA’s executives who oversaw the arrangement.

While negative public perception is to be expected from the revelation of the Agency’s close and direct collaboration with any local domestic police department, a perception that the Agency has exceeded its authorities diminishes the trust placed in the organization. This has the added potential of impeding our ability to effectively support law enforcement at both the local and federal level. Additionally, the risk that CIA officers could become involved in law enforcement matters exists if implementing procedures and policies to designed such collaboration are not clearly understood. A lapse in any one of these components has the potential to make Agency officers vulnerable and could jeopardize the vital mission the Agency performs.

[snip]

The revelation of these issues, as discussed in more detail in the Executive Summary, leads me to conclude that the risks associated with the Agency’s relationship with NYPD were not fully considered and that there was inadequate direction and control by the Agency managers responsible for the relationship. [my emphasis]

Amid descriptions of violations of protections for Americans, the report describes basic personnel problems with the arrangement.

In addition, there appears to have been no documentation between CIA and NYPD addressing specifically the employee’s role concerning access to NYPD records and the practices to be followed with respect to the sharing of lead information.

[snip]

… better documentation of the arrangement, practices, and appropriate approvals was warranted.

Unfortunately, the report does not name all the “senior CIA managers” who first implemented such an ill-considered program — it only says the first CIA officer was sent under George Tenet’s authority.

In early 2002, senior CIA management received requests for increased Intelligence Community (IC) support from federal, state, and local law enforcement, to include the NYPD. A Concept of Operations (CONOP) was developed by senior Agency officers in April 2002 for a temporary duty assignment (TDY) of a seasoned Directorate of Intelligence (DI) analyst to New York City for a six to nine month period under Director of Central Intelligence Authorities. 1

1 … DCI Tenet directed [redacted–AP reported this as Larry Sanchez] to New York City in 2002 under his DCI authorities as manager of the intelligence community.

Sanchez would be there from June 4, 2002 to March 2004, after which he took Leave without Pay and served at the NYPD full time until May 2009.

Sanchez believed he had “no restrictions” as to what he could and couldn’t do at NYPD.

The report makes it clear Sanchez served as a cop during the 5 years he was at NYPD while on LWOP. It doesn’t explain what he did in the first 2 years there, when he was still officially at the CIA, during which time — the report makes clear — serving as a cop would have violated restrictions on CIA officers serving as law enforcement.

Now, the report provides more details about how two of the other three CIA officers shared with the NYPD got sent. It names titles — Associate Deputy Director, Director of National Clandestine Services, Senior Deputy General Counsel as being involve d in the later decisions. It decides a Memorandum of Notification and warnings against engaging in domestic law enforcement (though that didn’t stop the person in question from filtering up to 12 reports a day up to CIA). For the third (whose transfer didn’t have that kind of guidance), names are named, including that of Deputy Director Mike Morell and Director/NCS John Bennett.

In short, Sanchez’s assignment may or may not have been as bad when, for a period in 2008, CIA was getting direct access to NYPD’s domestic intelligence reports. But at least from this review it seems like his assignment was one of the biggest clusterfucks from a management perspective.

You know? From the period when John Brennan was Deputy Executive Director at the CIA, “focused on administrative and workforce issues.” The same John Brennan who, after these practices were exposed, insisted he was “intimately familiar” with the program but that the CIA “knew what the rules were” — rules that, particularly for Sanchez while Brennan was still DExDir, simply weren’t in place.

Brennan’s potential role in this clusterfuck is all the more interesting given the timing of the report. It was written while he was the President’s top counterterrorism advisor. EPIC FOIAed the document March 28, 2012. CIA denied it expedited processing. So EPIC sued on December 20, 2012. CIA asked for one one week delay a few weeks after Brennan was confirmed Director.

And now this comes out, the day before Brennan heads to the Senate Intelligence Committee to tell them their 6,000 page report on torture is wrong.

It sure sounds like a report held to avoid embarrassing Brennan.

But don’t worry. We didn’t need to have any public airing of Brennan’s role — aside from his vague admission he knew about the program — before he got the authority to replicate the program elsewhere.

In superb news, late last night, the NYC City Council passed, with veto proof majorities, two bills that would provide real oversight for the NYPD.

As we await the next installment from Edward Snowden’s White Bronco chase around the globe, it’s worth remembering our attempt to overthrow Bashar al-Assad and the Boston Marathon attack (and subsequent whitewashing about how closely Russia is cooperating) are not the only things underlying US-Russian relations.

Russia is still very angry about our assertion of jurisdiction to entrap Viktor Bout for selling arms to FARC.

Indeed, Preet Bharara is among the US officials that Russia sanctioned in retaliation for the Magnitsky list, along with such leading lights of American law as John Yoo and David Addington.

Jeralyn lays out Russian frustrations over our manufactured jurisdiction with two of their citizens here.

Bout’s story (background here)is even worse. He was the victim of a DEAsting in Thailand. The U.S. fought tooth and nail to extradite him and lost. The U.S. appealed (and likely pulled some strings, if the Wikileaks cables are any indication, and lo and behold, The higher court in Thailand approved his extradition. He spent a miserable two years at MCC in New York, was convicted and sentenced to 35 years which he is serving at theUSP in Marion, IL., one of our SuperMax prisons. The U.S. claims he’s a “Lord of War” and seller of arms. He never sold arms here. What’s it our business? Why have a prisoner transfer treaty if you aren’t going to use it? Did anyone ask the American taxpayers if they want to pay $40,000 a year times 30 years to warehouse Bout in a high security prison when Russia’s willing to take him?

You don’t have to like what Bout did (which is not much more destabilizing than what Erik Prince has done) to understand that when the US claims jurisdiction over anyone in the world, even if they do nothing to harm the US directly, is going to piss off other countries.

Eventually, those countries may have an opportunity to express their frustration about it.

As Netroots Nation 2013 begins, I want to emphasize one of the best panels (If I do say so) of the event. It is titled: Beyond Aaron’s Law: Reining in Prosecutorial Overreach, and will be hosted by Marcy Wheeler. Joining Marcy will be Aaron Swartz’s attorney, Elliot R. Peters, of Keker & Van Nest LLP in San Francisco, Shayana Kadidal of the Center for Constitutional Rights in New York, and Professor Jonathan Simon of Boalt Hall at Berkeley. The panel goes off at 3:00 pm Saturday June 22.

As a lead in to the panel discussion, I want to address a topic that struck me from the first moment of the tragic loss of Aaron Swartz, the pernicious effect of the late 70’s Supreme Court case of Bordenkircher v. Hayes.

Paul Hayes was a defendant on a rather minor (involved $88.30), but still felonious, bad check charge in Kentucky. But Hayes had a bad prior criminal history with two felony priors. The prosecutor offered Hayes a stipulated five year plea, but flat out threatened Hayes that if he didn’t accept the offer, the prosecution would charge and prosecute under Kentucky’s habitual criminal (three strike) law. Hayes balked, went to trial and was subsequently convicted and sentenced to life in prison under the habitual offender enhancement charge. It was a prosecutorial blackmail threat to coerce a plea, and the prosecutor delivered on his threat.

Hayes appealed to every court imaginable on the theory of “vindictive prosecution” with the prosecutorial blackmail as the underlying premise. Effectively, the argument was if overly harsh charging and punishment is the penalty for a defendant exercising his right to trial, then such constitutes prosecutorial vindictiveness and degrades, if not guts, the defendant’s constitutionally protected right to trial.

Every appellate court along the way declined Hayes’ appeal until the 6th Circuit. The 6th, however, came up with a surprising decision, granting Hayes relief, but under a slightly different theory. The 6th held that if the prosecutor had originally charged Hayes with the habitual offender charge, and then offered to drop it if Hayes pled guilty, that would have been perfectly acceptable; but using it like a bludgeon in plea negotiations once the case was charged was impermissibly vindictive, and therefore unconstitutional.

Then, from the 6th Circuit, the case finally made its way to the Supreme Court of the United States. By that time, Hayes had long been in prison and the prison warden, Bordenkircher, was the nominal appellee in the caption of the case. The Supreme Court, distinguishing another seminal vindictive prosecution case, Blackledge v. Perry, reversed the 6th Circuit and reinstated Hayes’ life sentence.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to be impermissibly vindictive.

A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a [new trial] in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources. . . . And, if the prosecutor has the means readily at hand to discourage such appeals — by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a [new] trial.

. . . A person convicted of an offense is entitled to pursue his statutory right to a trial . . ., without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

Alas, the Supreme Court in Bordenkircher v. Hayes did not think the same logic in Blackledge controlled the day. In a 5-4 decision, Potter Stewart held that the practice engaged in by the Hayes prosecutor was just fine. In distinguishing Blackledge, Justice Stewart wrote:

In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.”

By now, it should go without saying that Justice Stewart’s view of a criminal defendant having “relatively equal bargaining power” with the prosecution is a sick and demented joke. Nothing could be further from the truth. But, from that time on, the power of prosecutors to add charges as a bludgeon against criminal defendants has been unfettered and increasingly problematic.

And so we come to the unfortunate case of Aaron Swartz. You can probably already see the Bordenkircher problem in the Swartz case. There is, however, another related problem in Swartz – overcharging. Overcharging is the initial charging by a prosecutor of multiple counts where only one charge is called for, or tacking on extra charges that are beyond what the evidence calls for, all in an effort to coerce the defendant to quickly accept a plea. It is a corollary, but distinct, practice that goes hand in hand with Bordenkircher leveraging of charges. Both are excessive and vindictive leveraging of criminal defendants to force a plea (or cooperation as a snitch), and both are present in spades in the prosecution of Aaron Swartz by Carmen Ortiz and the US Attorney’s Office for the District of Massachusetts.

Initially, upon arrest at MIT, Aaron Swartz was first charged in the local Middlesex/Cambridge state court. Which was somewhat notable and interesting since the arresting officer was actually Special Agent Michael Pickett of the United States Secret Service, who was working with the Boston area located New England Electronic Crimes Task Force. The Task Force had a well established reputation for working with the D-Mass US Attorney’s Office and FBI. So, despite an arrest by a federal agent, working a federal task force, the charge was in local court. That was January 7, 2011.

Then came the first significant upping of the ante against Aaron Swartz with the filing of the initial federal indictment on four counts with a request for forfeiture of property on July 14, 2011, over six months after his arrest and filing of local charges. What did Aaron Swartz do in the time between his arrest and initial charges to the federal indictment to earn the increase in seriousness of the charges against him? Nothing, he simply failed to roll over.

You would think the United States Department of Justice might have exercised enough vindictiveness against the 26 year old Swartz. But, no, there was more in the offing. Much more. Again, Aaron Swartz did not roll over. Swartz had a benefit than very few caught up in the American justice system do, he had money and he had powerful friends and supporters. He wouldn’t roll.

Aaron Swartz and his lawyers relentlessly tried to negotiate a fair plea – probation and no incarceration – for the piddly level of conduct that was actually involved, and they were relentlessly rebuffed by the DOJ. What happened next? The US Attorney’s Office for the District of Massachusetts, led by Carmen Ortiz (with undoubtedly some help from DOJ Main), decided to really put the thumb on Mr. Swartz.

A superseding indictment to further terrify Swartz was filed on September 12, 2012 charging an outrageously puffed up thirteen felony counts, along with the forfeiture demand. Four months later Aaron Swartz was gone.

Aaron Swartz was overcharged right out of the gate in the first federal indictment, which also constituted upping the ante from the state charges. Then the overcharging and upping of the ante went nuclear in the superseding indictment. It was unnecessary, oppressive and unreasonable. It was, and is, the mark of a Department of Justice, and justice system, run amok. Both a Bordenkircher and an overcharging nightmare writ large and public.

Aaron Swartz is tragically gone far too young, but he left us so much in his time. And one of those things is the public exposure this case has brought, and the manner in which it has exposed the ugly underbelly of the American criminal justice system and its reliance on an oppressive and unbalanced system of plea negotiation.

Kevin Cullen, in a Boston Globe op-ed, in quoting Mr. Swartz’s lawyer Elliot Peters, put it succinctly:

Elliot Peters, the San Francisco lawyer who took the case over from Weinberg last fall, could not persuade prosecutors to drop their demand that Swartz plead guilty to 13 felonies and spend six months in prison. Peters was preparing to go to trial and was confident of prevailing.

But the prospects weighed heavily on Swartz.

“There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”

Proportionality and humanity are excellent words that are part and parcel of what is supposed to be “prosecutorial discretion”. As the courts in Bordenkircher and Blackledge noted, the criminal justice system, from local to federal, runs on plea bargaining. But contrary to what Potter Stewart said in Bordenkircher, the power of the defendant is NOT “relatively equal” to that of the prosecution.

The system, and the wielding of power by the government is out of balance, and out of control, as even prominent former federal judges are noting. There are any number of reasons prosecutors so abuse their power. Sometimes it is the desire to notch the big win, always it is a self desire to maintain their personal “conviction record” necessary for promotion, and sometimes it is to force a defendant into cooperation and snitching on other potential defendants and cases. All can be appropriate concerns for a prosecutor, but not without proportionality, humanity and discretion.

Radley Balko penned an excellent discussion of many of the different facets of the immense power, and abuse of power, of the prosecutor:

Prosecutors have enormous power. Even investigations that don’t result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy. It has become an overtly political position — in general, but particularly at the federal level. If a prosecutor wants to ruin your life, he or she can. Even if you’ve done nothing wrong, there isn’t a whole lot you can do about it.

I highly recommend reading Balko’s piece in full as there is much depth there that goes beyond what there is space for in the instant post.

High profile cases like that of Aaron Swartz have brought a new light on abuse of prosecutorial power. Another example I feel compelled to mention is that of famed Hollywood director John McTiernan that was put on display last month in one of the last big articles by a friend to this blog, the late Michael Hastings. But while the famous cases like Swartz and McTiernan bring needed exposure, the root problem plagues and rots the entire system. Most defendants are at a far greater disadvantage than those who are wealthy and well known.

Former federal prosecutor and current criminal defense attorney Kenneth White, on his Popehat blog, gave a passionate and troubling description of the bigger picture in our criminal justice system:

People think the system failed or abused or singled out Aaron Swartz. This is the system, dammit, and if you think that Aaron Swartz faced what he did because he’s a hacker and the government has it out for hackers, then I’m here to tell you that you’re full of shit. Aaron Swartz had a great, well-funded defense team and a healthy support system. Most people don’t. If you read this blog, you know the types of things the system does to people, including people with far less ability to fight back. The system sends sick people to their death in a system that can’t care for them because they smoked weed. The system denies its prisoners medical care until they have to have their genitals amputated in a fruitless effort to delay an early death from cancer. The system sticks people into cells and very literally forgets them until they’ve spent a few days drinking their own urine. The system strives and strains to execute people based solely on the word of serial perjurers — serial perjurers whose record of perjury they have concealed from the defense. The system prizes junk science so long as that junk science supports its allegations. The system treats invocation of constitutional rights as evidence of guilt. The system reacts with petulant fury to being questioned. The system detects and punishes law enforcement and prosecutorial misconduct so rarely that bad actors are hardly ever subjected to real consequences.

These things happen every day to people less photogenic, talented, and charismatic than Aaron Swartz.

If the Aaron Swartz case has taught us anything, it is that as a nation we desperately need to have a discussion and recalibration on prosecutorial discretion, proportionality and humanity in our criminal justice system. The “system” is not about “them”, it is about us and who we are as a people. It is long past time to fix the system.

I just finished watching the House Intelligence Committee hearing on the NSA programs revealed by Edward Snowden. I’ll have a lot more to say about the content of the revelations in the next few days. But first, a general observation.

Since the initial Snowden revelations, the Intelligence Community and other Administration surrogates have been trying to minimize our understanding of the scope of their surveillance and use traditional fearmongering to justify the programs by focusing on the importance of the Section 702 collection to stopping terrorism. While James Clapper’s office has made it clear that Section 702 goes beyond counterterrorism by revealing that its  successes include counterproliferation and cybersecurity successes, as well as counterterrorism ones, the focus has nevertheless been on TERROR TERROR TERROR.

Today’s hearing was really the culmination of that process, when Keith Alexander boasted up upwards of 50 terrorist plots — about 40 of which were overseas — that Section 702 has prevented.

Of the four plots the government has revealed — David Headley, Najibullah Zazi, as well as these two today…

Mr. Joyce described a plot to blow up the New York Stock Exchange by a Kansas City man, whom the agency was able to identify because he was in contact with “an extremist” in Yemen who was under surveillance. Mr. Joyce also talked about a San Diego man who planned to send financial support to a terrorist group in Somalia, and who was identified because the N.S.A. flagged his phone number as suspicious through its database of all domestic phone call logs, which was brought to light by Mr. Snowden’s disclosures.

… the government has either overblown the importance of these programs and their success or are fairly minor plots.

None of the four may be as uniquely worthwhile as the cyberattack described by Clapper’s office a week ago, which it has not, however, fleshed out.

Communications collected under Section 702 have provided significant and unique intelligence regarding potential cyber threats to the United States, including specific potential network computer attacks. This insight has led to successful efforts to mitigate these threats.

That is, the government might–might!–be able to make a far better case for the value of these programs in discussing their role in preventing cyberattacks rather than preventing terrorist plots.

And yet it hasn’t done so, even as it pushes one after another attempt to legislate internet access in the name of protecting Intellectual Property and critical infrastructure.

Given the increasing focus on cybersecurity — and the already dishonest claims people like Mike Rogers have made about the means to accomplish that focus — this is the discussion we need to be having, rather than digging up terror plots first developed in 2004 that never happened. But in the same way the government shied away from conducting an honest discussion with us in 2001 and again in 2006 about these programs, it is refusing to conduct an honest discussion about cybersecurity today.

And, ironically, that refusal is preventing them from describing the value of a program that surely contributes more to countering cyberattacks than terror attacks at this point.

As I laid out in this Guardian column on today’s House Judiciary Committee hearing, after citing Smith v. Maryland a bunch of times to justify getting all Americans’ phone records, FBI Director Robert Mueller went on to pretend not to know whether those records include geolocation.

New York Representative Jerry Nadler wasn’t convinced Mueller’s excuse was good enough. He noted that metadata includes so much more information than it did in 1979, and that that earlier ruling might not stand in this case. Utah’s Jason Chaffetz got much more specific about the difference between phones in 1979 and now: location.

Landlines include location information. But with cell phones, the same location information necessary to route a call effectively provides a rough idea of where a person is even as they move from place to place (map functions on smart phones, as well as a lot of applications, rely on this data). Thus, the geolocation available as part of cell phone metadata provides a much better idea of where a person goes and what they do than location data for a landline tied to a person’s address.

Chaffetz posed several questions that, he revealed, he had sent Mueller Wednesday so that he would be prepared to answer, starting with whether or not geolocation is part of this metadata collection. In spite of Chaffetz’s prior warning, Mueller said he did not know whether it was included.

Note that the order to Verizon the Guardian publishedspecifically includes routing information in its description of metadata, which gets to geolocation. It’s clear this collection includes geolocation.

Mueller was also unprepared to answer whether or not a different supreme court case from last year, US v Jones, which determined that installing a GPS tracking device on a suspect’s car constituted a search, meant that the geolocation provided by the GPS function on cell phones did not qualify as metadata. Mueller was also unprepared to answer whether tracking someone’s location by using their phone constituted metadata.

In fact, Mueller admitted his staffers had told him he’d be asked these questions – yet still hadn’t prepared. It seemed almost as if his inability to answer this question in public was intentional.

As I suggested, Mueller’s feigned ignorance was probably intentional.

Moreover, his professed ignorance about whether the phone records include location is probably bullshit. That’s true, as I noted, because the order in question includes routing information, which in the case of cell phones, includes tower location which is location.

And remember, according to Tom Coburn, the FBI Director’s role in approving this process is so central, Coburn was worried that legal challenges to Mueller’s two-year extension might put the entire dragnet program at risk. So it’s hard to believe all this time Mueller has been personally vouching for orders like the one to Verizon that ask explicitly for routing information without knowing he was asking for routing information.

Here’s the other reason I think Mueller is telling a least untruth that is too cute by half when he claims ignorance.

Shortly after the US v. Jones ruling, Ron Wyden asked Director of National Intelligence James Clapper to what degree Jones affected the intelligence community. He even invoked “secret law,” the way he always has done when referring to this dragnet program(s).

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.

Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment.

Clapper’s invocation of the Fourth Amendment is similar to what Mueller did all day today, to repeat that metadata was not covered by the Fourth Amendment.

But he also makes it clear the intelligence community (of which the FBI is one member)’s lawyers were reviewing the issue.

I find it implausible (to say the least) that FBI’s General Counsel Andrew Weissmann wasn’t personally involved in this, particularly since he, as well as Solicitor General Don Verrilli, was quoted in this piece post-Jones. And if FBI was involved in that process, then it seems pretty certain that Mueller was too.

If I’m right that this is all BS, the question is what precisely his feigned ignorance covers up.