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A Few Thoughts On Carter Page Warrants, Franks v. Delaware and Michael Horowitz

Marcy Wheeler did a giant post on the Page warrants and the Horowitz report, one she just updated significantly this morning. I did a comment on there, but since this is pretty much my hobby horse from long before the Horowitz IG Report was released, I decided it needed at least a short standalone post.

This concerns the Franks v. Delaware standards for warrant affidavit review, how it should apply to Carter Page’s series of four warrants signed by four different experienced and sober judges, and the complete ignoring of said standards by the typical Michael Horowitz’s attempt to validate his own work and time.

First, there are two types of identifiable errors in warrant affidavits for Franks v. Delaware challenge purposes. The first is what I call the error of commission, i.e. affirmatively inserting materially false information, and the second is error of omission, i.e. leaving out materially critical information. Courts are generally much more loathe to grant relief on omission claims than commission claims. This is important as to the caterwauling about Page having talked to the CIA (long ago as Marcy notes) claim. Sorry, that is so old, stale and meaningless as to be completely irrelevant for these purposes. Nobody would ever get dinged for that nonsense. It is not like the IC was running Page as a asset, this is just nonsense. But that is what uninformed howlers like Page, Nunes and Chuck Ross roll with.

Secondly, when Marcy says “Franks challenges require the defendant to prove that false statements in a warrant application are false, were knowing, intentional, or reckless false statements, and were necessary to the finding of probable cause”, that is true. But it has to be established that the actual affiant knew that as opposed to some diffuse other government agent or person may have known. And the actual affiant gets every benefit in the world of “good faith” in this regard. Always. Darn near impossible to overcome. So, that isn’t going to work either for the reasons Marcy lays out.

Third. It is infuriating that Horowitz did not address one lick of any of this. In 435 pages of his “report” Horowitz could not find just a few to address the actual standards he should have been reviewing under. Not once. Couldn’t even be bothered to mention it in passing. And it has not entered many, if at all, other post hoc discussions, either, short of at this blog. That is just laziness.

Lastly, for now, I would suggest the law review article Marcy linked to above, specifically pps. 443-449. It is not the most complex dissertation of Franks v. Delaware law and review standards, but it is one easily understandable by the lay person, especially if you read the footnotes carefully too.

I have been successful on a couple of Franks attacks in days gone by….out of a LOT attempted. Very few defense attorneys can claim even that. I cannot possibly tell you how difficult it is. But I can, without any reservation, tell you I think there is about little to no chance that the Page affidavits would not stand up with sufficient probable cause if subjected to such a review. Since Page would have never gotten there, it was derelict of Horowitz to have not done so.

It is not that Horowitz did not identify some error, whether of commission or omission, in the Page applications, he did. But he very much overplayed how significant they are under extant warrant law. Now, the argument that FBI, and other law enforcement entities, ought to tighten up their policies for submission of affidavits, whether under FISA or Title III, is well taken. They should. All defendants and surveillance targets deserve that. But under the applicable law at the time, the thought that the Page affidavits would not stand up under the mere ex-parte probable cause standard is ridiculous. Of course they would have.

Aaron Swartz, Plea Leveraging & The Bordenkircher Problem

CryingJusticeAs 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 Read more

Netroots Nation: Marcy Wheeler Introduces Guest of Honor Russell Feingold

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As most of you know by now, Netroots Nation 2011 is in full swing in the beautiful hamburg of Minneapolis Minnesota. Earlier today, our own Jane Hamsher appeared front and center with Dan Choi on a DADT panel. Tonight FDL takes center stage again, in a big way, with our own Marcy Wheeler having the distinct pleasure of introducing the guest of honor for the main festivities for the evening, Senator Russell Feingold.

Russ Feingold is a hero, and for good reason, to progressives. Russ was one, if not the only one, of the Democratic Senate, make that Senate as a whole, who really stood up for civil liberties in the face of the bipartisan onslaught that has occurred over the last decade, both under George Bush and Barack Obama.

So, please join me, Firedoglake, Netroots Nation, and the progressive enterprise as Marcy Wheeler welcomes one of us: Senator Russell Feingold. The video is a live stream of the event, I am not sure when Marcy and Russ will be up.

NY Times Admits Gruber Problem, Fails To Mention Krugman Problem

imagesIn a full throated mea culpa by the New York Times Public Editor, Clark Hoyt, appearing in the Sunday edition, the Times officially describes the critical and material implications that arise when readers are misled by undisclosed interests of sources and authors in their paper of record.

These examples have resulted in five embarrassing editors’ notes in the last two months — two of them last week — each of them saying readers should have been informed of the undisclosed interest. And on Thursday, the standards editor sent Times journalists a memo urging them to be “constantly alert” to the outside interests of expert sources. The cases raised timeless issues for journalists and sources about what readers have a right to know and whose responsibility it is to find it out or disclose it.

That is exactly right. One of the prime examples the Times’ Public Editor bases his proper conclusion on is that of Jonathan Gruber:

Jonathan Gruber, a prominent M.I.T. health economist, wrote an Op-Ed column and was quoted frequently in other Times columns, news articles and blogs on health care reform before it came to light that he had a contract worth nearly $400,000 to analyze health proposals for the Obama administration.

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Gruber, the health care economist, wrote an Op-Ed column in July supporting an excise tax on so-called Cadillac health plans. Not long before, he had signed a contract with the Department of Health and Human Services to analyze the economic impact of various health care proposals in Congress. He did not tell Op-Ed editors, nor was the contract mentioned on at least 12 other occasions when he was quoted in The Times after he was consulting for the administration. After a blogger reported on Gruber’s government contract on the Daily Kos Web site, Gruber did volunteer it to Steven Greenhouse, a Times reporter interviewing him for an article on the excise tax. Greenhouse said he included the fact in a draft but struck it because the article was too long. Greenhouse said that Gruber’s views on the tax were so well-known that he did not think they would be influenced by a consulting contract. But had he realized how large the contract was, Greenhouse said, “I would have stood up and paid lots more attention.”

While it is nice the Times has admitted its problem with Gruber, and his wantonly serial failure to disclose material facts and appearances of conflict, it is extremely curious and convenient they dodge the most recent, and in many regards most glaring, example of their damage from Gruber’s Read more