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Trump’s New Appellate Argument about His 100 Million Imaginary Friends

Judge Tanya Chutkan issued her order denying Trump a stay of her gag order on October 29.

That was admittedly a Saturday. Nevertheless, it took Trump four days before he ran to the DC Circuit to cry about an emergency infringement on the First Amendment rights of him and his mob.

He took those four days even as he demanded that the DC Circuit — which had been expecting Trump’s initial brief on November 8 — rule on this motion by November 10.

The Court should stay the Gag Order pending appeal. In addition, President Trump respectfully requests that the Court enter a temporary administrative stay pending resolution of this motion and issue its ruling by November 10, 2023. If the Court denies this motion, President Trump requests that the Court extend its administrative stay for seven days to allow him to seek relief from the U.S. Supreme Court.

During those four days that Trump didn’t file for a stay, John Lauro found time to file three different things (one, two, three) in Judge Chutkan’s docket. In those four days, Trump posted a slew of attacks on Joe Biden, the 2020 election, and his prosecution (though admittedly many of the recent posts targeted Arthur Engoron), many of them attacks that — he claims — this gag prevents him from making.

I’ll leave it to smarter people to explain the posture that leaves this case.

What I’m more interested in are the arguments that Trump makes that should not withstand prolonged scrutiny, at least not at the DC Circuit, arguments that are surely designed to trigger the interest of Sam Alito and Clarence Thomas.

In his appeal, Trump argues — substantially for the first time — that his gag subjects him to viewpoint discrimination. There’s a very short section dedicated to the topic, citing an inapt precedent.

7. The Gag Order reflects forbidden viewpoint discrimination.

By forbidding speech that “target[s]” certain individuals, the Gag Order prohibits only (vaguely defined) negative speech about them. See infra, Part I.C. In Matal v. Tam, the Supreme Court held that prohibiting only negative or “disparaging” speech constitutes forbidden viewpoint discrimination. 582 U.S. 218, 243 (2017) (plurality opinion). Such a prohibition “constitutes viewpoint discrimination—a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny.” Id. at 247 (Kennedy, J., concurring in part and concurring in the judgment). To prohibit “disparaging” speech “reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.” Id. at 249; see also R.A.V., 505 U.S. at 391- 92. The Gag Order violates these principles

Trump lards the rest of the discussion with claims that a gag tied to the crimes alleged against Trump amounts to censorship of right wing views.

Based this speculation, the district court entered a sweeping, viewpoint-based prior restraint on the core political speech of a major Presidential candidate, based solely on an unconstitutional “heckler’s veto.” The Gag Order violates the First Amendment rights of President Trump and over 100 million Americans who listen to him.

[snip]

President Trump’s viewpoint and modes of expression resonate powerfully with tens of millions of Americans. The prosecution’s request for a Gag Order bristles with hostility to President Trump’s viewpoint and his relentless criticism of the government—including of the prosecution itself. The Gag Order embodies this unconstitutional hostility to President Trump’s viewpoint. It should be immediately stayed.

[snip]

As a viewpoint-based prior restraint on the core political speech of a Presidential candidate to an audience of over 100 million Americans, the Gag Order is virtually per se invalid.

There are nine appearances of the word “viewpoint” in the entire appendix. All appear in Trump’s filings bidding for a stay, not his underlying opposition to the gag. But all of those also appear as part of an argument about political speech — an important argument, but one largely divorced from the circumstance of this gag, not as a free-standing argument about the free speech of nutjob right wingers.

That argument is closely related to (and builds on) another argument that Trump belatedly raised: that gagging his speech harms the First Amendment rights of his 100 million followers.

4. The Gag Order violates the rights of tens of millions of Americans to receive President Trump’s speech.

The First Amendment’s “protection afforded is to the communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (citing many cases); Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and listen, and then … speak and listen once more,” as a “fundamental principle of the First Amendment”); Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969). A restriction on President Trump’s speech inflicts a reciprocal injury on the rights of over 100 million Americans who listen to him, irrespective of their political beliefs.

This right of listeners to receive President Trump’s message has its “fullest and most urgent application precisely to the conduct of campaigns for political office,” especially for the Presidency. Susan B. Anthony List, 573 U.S. at 162. Ford emphasized that, if Congressman Ford were silenced, “reciprocally, his constituents will have no access to the views of their congressman on this issue of undoubted public importance.” 830 F.2d at 601. Likewise, Brown stated that “[t]he urgency of a campaign … may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications….” 218 F.3d at 430.

In Trump’s appeal, he doesn’t cite evidence supporting this number, but — as I already noted — the underlying motion relies on garbage double counting of bots on the Twitter platform Trump no longer uses. Given that this argument is based on fraudulent numbers, it amounts to a defense of the First Amendment rights to listen of Trump’s imaginary friends, including the Russian bots the now-deceased Yevgeniy Prigozhin deployed to fuck with US politics.

The problem with this argument is, as DOJ noted in its response to Trump’s bid for a gag, Trump misrepresented the record on that point.

11 The defendant did not invoke these interests in his response to the Government’s motion for an order under Local Criminal Rule 57.7(c). And while the defendant claims to have invoked these interests at the hearing, only to have been unfairly interrupted by the Court (ECF No. 110 at 17), his citations mischaracterize the record. For example, he asserts (id.) that the Court interrupted him in response to his statement, “And what the government is proposing here is an order not just directed against President Trump but against the American electorate that wants to hear from President Trump under these circumstances.” The Court did not, in fact, interject in response to that point. See ECF No. 103 at 44. Rather, it was only several sentences later, after defense counsel returned to his oft-repeated talking point that “[t]his is the first time we’ve had a sitting administration prosecute a political opponent” that the Court responded, “I’m going to interrupt you. . . . You have said that. You have said it repeatedly. I have heard it.” Id. Likewise, the defendant asserts (ECF No. 110 at 17) that, when counsel said, “The American people are entitled to understand that and understand the consequences of that,” the Court simply responded, “No.” The Court did no such thing. After defense counsel’s comment, the Court asked why the defendant “is entitled to suggest that an appropriate punishment would be death.” ECF No. 103 at 59-60. When defense counsel invoked the First Amendment in response, the Court said, “No. As part of that. But again, the First Amendment protections must yield to the administration of justice and the protection of witnesses.” Id.

In a footnote of Judge Chutkan’s order denying the stay, she agreed.

Defendant’s Motion argues that his speech restrictions are inconsistent with the “right of listeners to receive President Trump’s message.” Motion to Stay at 15. Defendant did not squarely raise that argument in his opposition brief to the government’s original motion; the closest he came to identifying any authority for it was an unrelated “see also” citation to United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987), a case that he now quotes to support his right-of-listeners argument. Compare ECF No. 60 at 5, with Motion to Stay at 16. But the court expressly addressed and distinguished that case. Order at 2–3. In any event, the argument does not alter the fundamental principle that First Amendment rights, whether those of the speaker or the listener, may be curtailed to preclude statements that pose sufficiently grave threats to the integrity of judicial proceedings.

Undeterred by that footnote, Trump argues that Chutkan’s failure to address something he didn’t raise is her reversible error, not a waiver on his part.

Though the issue was raised repeatedly, A159-60, A165, A178; A47, A62-63, the district court gave the First Amendment rights of President Trump’s audiences no meaningful consideration. The Gag Order does not mention them, see A1-3, and the district court declined to consider them when President Trump raised them, e.g., A47, A62-63. That is reversible error.

I’ve linked two of the spots in the record, above, where John Lauro imagines he raised this — A47, which he cites twice, was in the oral arguments, not the underlying brief. None was a substantive argument about his imaginary 100 million friends. Here’s the appendix if you want to see if you can find what other things he is citing to.

There are other problems with this appeal. Trump doesn’t address the part of Chutkan’s order that explicitly permits Trump to attack, “the current administration or the Department of Justice.” Trump does not engage, at all, with the evidence DOJ submitted of expected trial witnesses testifying under oath about how mobs started threatening them after Trump tweeted mean things. Notably, Trump’s citations to the government’s examples of threats that Trump made between August 2 and September 26 doesn’t cite to the footnotes in the government response that reference the threat — made the day after the linked threat, “if you come after me I’m coming after you” — to Judge Chutkan herself.

By the time the Gag Order was entered, the case had been pending for almost three months, and President Trump had often spoken about it. The prosecution provided seventeen examples of public statements by President Trump between August 2 and September 26, 2023, that it considered objectionable. A140-46; A190- 91. However, it did not produce any evidence that any prosecutor, witness, or court staffer experienced “threats” or “harassment” after President Trump’s speech. Likewise, it did not produce any evidence that any witness or prosecutor felt threatened or intimidated by President Trump’s speech—however subjectively—during three months of President Trump’s public commentary on the case. See A140-46; A190-91.

Lauro claims DOJ didn’t present any evidence that anyone, including court staffers but not the judge herself, felt intimidated by threats that followed on Trump’s incitement and simply ignores that footnote. But someone in Judge Chutkan’s chambers alerted the Marshals after that threat, and the FBI deemed it sufficiently dangerous to arrest Abigail Jo Shry for making it.

So there are other problems with this appeal, exhibiting the same obstinate refusal to address the record as it stands that Judge Chutkan described in her opinion refusing the stay.

But the key dynamic, in my opinion, is that Trump is trying to refashion his argument to trigger the known biases of Sam Alito and Clarence Thomas. But he’s doing so — launching a bid to protect the First Amendment rights of his imaginary friends — after the fact.

This is not a frivolous argument. The legal arguments should bear the weight of the historic decision that ultimately will result.

But instead of making serious arguments, John Lauro has pitched the Supreme Court’s right wing justices an argument about Trump’s imaginary Twitter friends.

Update: A DC Circuit panel of 3 Democratic appointees (Obama, Obama, Biden) has stayed the gag and ordered and set an expedited briefing that is quick enough SCOTUS is unlikely to have any reason to intervene.

PER CURIAM ORDER [2025399] filed considering motion to stay case [2025149-2], ORDERED that the district court’s October 17, 2023, order be administratively stayed pending further order of the court. Further ordered that his case be expedited. setting briefing schedule: APPELLANT Brief due 11/08/2023, at 5:00 p.m.. APPENDIX due 11/08/2023, at 5:00 p.m.. APPELLEE Brief due on 11/14/2023, at 5:00 p.m., APPELLANT Reply Brief due 11/17/2023, at 12:00 p.m., scheduling oral argument on Monday, 11/20/2023. Before Judges: Millett, Pillard and Garcia. [23-3190] [Entered: 11/03/2023 05:06 PM]

Sam Alito Strips Women of their Bodily Autonomy [Updated]

I won’t have much to say about the Sam Alito opinion taking away women’s right to bodily autonomy.

I will point to this concurring opinion from coup plotter Ginni Thomas’ spouse, calling to revisit same sex marriage and birth control.

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. Amdt.

I guess he needs something to rile up the brownshirts going forward.

………………………………………………………………….

Okay, bmaz here with an add on update.

Okay, I have a couple things to add here. First, Marcy hit on exactly the most important thing today. We knew Alito’s opinion was coming, and we knew what it was going to be. But the Thomas part is terrifying. They are coming for all of it. Thomas wants the Supreme Court to overrule Griswold (right to contraception), Lawrence (right to same-sex intimacy), and Obergefell (right to same-sex marriage).

That is the whole kit and kaboodle. And make no mistake, this Coney Barrett court will give it to him. Stare decisis is officially dead. I know for a fact that the test cases for accomplishing this are already long in the works by a myriad of conservative groups in anticipation of today’s Dobbs decision. And that was even before the leak of Alito’s craven draft opinion. They knew it was coming after Amy Coney Barrett replaced RBG non the Court. They think ahead in ways that Democrats and their feckless octogenarian leadership never do.

Notable what prior decision Clarence Thomas did NOT call out. The Loving decision that allows his interracial marriage to the hideous Ginni Thomas. He conveniently stands mute on that one. Funny that.

And Justice Kavanaugh, in his concurring opinion, tries to preemptively declare that states cannot prohibit and prevent, and theoretically criminalize, interstate travel to obtain an abortion because of the constitutional right to interstate travel. I actually think that is right, so credit for trying Beer Boy. But that is not at all clear, because interstate travel is yet another right not specifically delineated in the Constitution, so is very much in the lurch under the Thomas attack discussed above. So that is not bankable in the least.

Second, back to the main force of today’s Dobbs decision, a lot of states have trigger laws that make the ban on abortions effective, or easily effective after certification, after this decision. Other states, like Arizona for instance, have statutes totally banning abortion still on their books, that are effective and can be enforced immediately. Today. This morning. Now. This is not something about to take effect, it is effective right now.

All in all, the Dobbs opinion puts all healthcare for women in peril, not “just” abortion. There is about no health issue a woman can face that cannot impinge on fertility or pregnancy. Southern and deeply red states either have already or in the process of creating laws that criminalizes medical professional in this regard. Some want the death penalty for it. It is hard to imagine that most citizens really grasp the hell the Supreme Court has unleashed today.

Maybe people should have listened to the Her Emails lady.

Six Weeks: The Tactics of Sammy Alito’s Abortion

Last night, Politico published a February 10 draft opinion in the Dobbs case, authored by Sam Alito, that overturns Roe and Casey entirely. I’ll leave it to experts to analyze the opinion. For my purposes, it matters only that it is legally and historically shoddy (meaning, Alito didn’t even care about making a convincing argument before taking away constitutional protections), and that it would also permit states to roll back protections for gay rights, contraception, and privacy generally.

I’d like to talk about tactics.

This leaked draft opinion, while not unprecedented, is almost that momentous. But the leak of the draft will in no way affect abortion access after June in any case. Since the oral argument, there was never a doubt that Casey, at least, was going to be effectively overturned. The only suspense, then, and now, concerned the scope of rights the Supreme Court eliminated and how John Roberts will vote.

The most hackish five justices support the Alito argument. And — in CNN reporting that is almost as important as the Politico leak — John Roberts would have voted to uphold Mississippi’s sharp restrictions on abortion in any case.

CNN legal analyst and Supreme Court biographer Joan Biskupic reported late Monday that Chief Justice John Roberts did not want to completely overturn Roe, meaning he would have dissented from part of Alito’s draft opinion, likely with the top bench’s three liberals.
That would still give the conservatives a 5-4 majority on the issue.

Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a woman’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.

CNN’s report suggests this leak more likely came from Roberts’ chambers than the most likely other source, Stephen Breyer’s. The most logical explanation for the leak is that Roberts is trying to get his colleagues to adopt a less radical opinion. And if that’s the purpose, it might have the desired effect, both by making it clear what a shit-show the original Alito opinion will set off, but also by exposing the opinion itself to the ridicule and contempt it, as written, deserves.

But that doesn’t change the fact that in one way or another, the national protection for access to abortion is gone by the end of the SCOTUS term next month.

So those who support equality for women (and LGBTQ rights, and privacy generally) should consider this leaked draft as an opportunity to use the next six weeks — assume the final opinion will be released in mid-June — to lay the groundwork for what comes next. Symbolically, those who support equality for women (and LGBTQ people) now have about as long as many states will permit abortions to do something to protect the right to abortion (and to marry who you love) going forward.

It’s not clear how overturning abortion access or the early release of this opinion will affect politics going forward. I can certainly see it driving the plurality of Republicans who support such a radical stance. I can also see this decision being decisive in defeating some anti-choice Senate candidates and maybe, because this was released before the run-off, the remaining anti-choice Democrat, Henry Cuellar. Gavin Newsom has already talked about adding abortion to California’s constitution, and California might not be the only such state. Perhaps it is not too late to find a way to put reproductive rights on the ballot as a referendum (though I assume it is). Certainly, this is way to make abortion support a litmus test for state-wide elections.

Certainly, this decision raises the stakes of Brett Kavanaugh’s lies in his confirmation and Clarence Thomas’ implication in his wife’s participation in a coup attempt.

Democrats are talking about abolishing the filibuster to pass abortion rights, but there’s no indication they have 51 votes to pass it. Maybe this would change things?

But there are other ways to mobilize what is a solid majority (including most large corporations) in the United States to undercut this decision, and possibly to change the tenor of politics in this country. Americans believe that women and gays (at least) should be treated as equals. A radical minority disagrees.

Use the next six weeks to figure out how to isolate them as a radical minority.

Update: Noted that this opinion will just end national protections on abortion access.

Update: Roberts is ordering an investigation, suggesting he is not aware of the leaker’s identity. Others have made persuasive arguments that this is from one of the radicals, attempting to keep the five vote majority.

Kennedy

Anthony Kennedy just announced his retirement, giving Trump a second SCOTUS appointment.

Things just got serious. That, after SCOTUS just gutted public sector unions and upheld Trump’s anti-Muslim bigotry.

Trump has said he’ll pick someone from his existing list, which includes lots of horrible people, as well as Mike Lee, who at least is good on civil liberties albeit horrible on cultural issues. Both bmaz and I think it’ll be Brett Kavanaugh, who’s very smart and has been groomed for this for a long time.

While this likely will end up absolutely horribly, here are several reasons it might end up less than horribly:

  • At the very least, this will focus this fall’s election, and SCOTUS just did a lot of things that will be horrible for Democratic voters, which should clarify issues
  • Any two GOP Senators (one, depending on what happens with McCain) can make demands. That means that a Corker-Flake-McCain (if he’s voting) axis could heavily influence the pick, if they chose to use that as their legacy in the Senate.

bmaz, on the other hand, is a realist. He figures this will put a third Alito-type on SCOTUS, which will doom us for as long as those young men remain around (even assuming RBG lives forever).

Finally, one more point. While Kennedy has been the swing vote for a decade, in fact this year John Roberts was often in that role. So as awful as he is, he may be more willing to work with Democrats to retain credibility at SCOTUS.

I can think of more possibilities, but for now, I’ll just post this as a thread.

 

Once Again Sammy Alito’s Speculative Chain of Possibilities Proves True

Back when SCOTUS Justice Sam Alito wrote the opinion booting the ACLU-argued challenge to Section 702, he said the plaintiffs’ worries — that the US government was collecting their international communications under Section 702 — were too speculative to give them standing to challenge the constitutionality of the statute.

In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a.

The named plaintiff in that suit — the NGO wildly speculating that the US government was reading its international communication with human rights victims and others — was Amnesty International.

Today, UK’s Investigatory Powers Tribunal informed Amnesty International that unnamed UK government agencies have been intercepting their communications.

In a shocking revelation, the UK’s Investigatory Powers Tribunal (IPT) today notified Amnesty International that UK government agencies had spied on the organization by intercepting, accessing and storing its communications.

[snip]

“After 18 months of litigation and all the denials and subterfuge that entailed, we now have confirmation that we were in fact subjected to UK government mass surveillance. It’s outrageous that what has been often presented as being the domain of despotic rulers has been occurring on British soil, by the British government,” said Salil Shetty, Amnesty International’s Secretary General.

Admittedly, this doesn’t confirm that Amnesty has been swept up in 702 collection, but given the likelihood that one of the agencies, plural, that has intercepted Amnesty’s communications is GCHQ, and given the broad sharing between it and its Five Eyes partner NSA, it is almost certain NSA has those communications as well (if they didn’t actually collect some of them).

Amnesty is trying to gain clarity from the US on whether it, too, has spied on the NGO.

But, predictably, Amnesty had a better idea of what a threat the government posed for its work than Sammy Alito did.

 

Sonia Sotomayor, John Roberts, and the Riley Decision

In a piece just published at Salon, I look at John Roberts’ citation in his Riley v. California decision of Sonia Sotomayor’s concurrence in US v. Jones, the opinion every privacy argument has invoked since she wrote it two years ago. I argue Roberts uses it to adopt her argument that digital searches are different.

A different part of Sotomayor’s concurrence, arguing that the existing precedent holding that you don’t have a privacy interest in data you’ve given to a third party “is ill suited to the digital age,” has been invoked repeatedly in privacy debates since she wrote it. That’s especially true since the beginning of Edward Snowden’s leaks. Lawsuits against the phone dragnet often cite that passage, arguing that the phone dragnet is precisely the kind of intrusion that far exceeds the intent of old precedent. And the courts have – with the exception of one decision finding the phone dragnet unconstitutional – ruled that until a majority on the Supreme Court endorses this notion, the old precedents hold.

Roberts cited from a different part of Sotomayor’s opinion, discussing how much GPS data on our movements reveals about our personal lives. That appears amid a discussion in which he cites things that make cellphones different: the multiple functions they serve, the different kinds of data we store in the same place, our Web search terms, location and apps that might betray political affiliation, health data or religion. That is, in an opinion joined by all his colleagues, the chief justice repeats Sotomayor’s argument that the sheer volume of this information makes it different.

Roberts’ argument here goes beyond both Antonin Scalia’s property-based opinion and Sam Alito’s persistence-based opinion in US v. Jones.

Which seems to fulfill what I predicted in my original analysis of US v. Jones — that the rest of the Court might come around to Sotomayor’s thinking in her concurrence (which, at the time, no one joined).

Sotomayor, IMO, is the only one ready to articulate where all this is heading. She makes it clear that she sides with those that see a problem with electronic surveillance too.

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

[snip]

I would also consider the appropriateness of entrusting to the, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent“a too permeating police surveillance,”

And in a footnote, makes a broader claim about the current expectation of privacy than Alito makes.

Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements.

Ultimately, the other Justices have not tipped their hand where they’ll come down on more generalized issues of cell phone based surveillance. Sotomayor’s opinion actually doesn’t go much further than Scalia claims to when he says they can return to Katz on such issues–but obviously none of the other Republicans joined her opinion. And all those who joined Alito’s opinion seem to be hiding behind the squishy definitions that will allow them to flip flop when the Administration invokes national security.

Sotomayor’s importance to this decision likely goes beyond laying this groundwork two years ago.

There’s evidence that Sotomayor had a more immediate impact on this case. In a recent speech — as reported by Adam Serwer, who recalled this comment after yesterday’s opinion — Sotomayor suggested she had to walk her colleagues through specific aspects of the case they didn’t have the life experience to understand.

The Supreme Court has yet to issue opinions on many of its biggest cases this term, and Sotomayor offered few hints about how the high court might rule. She did use an example of a recent exchange from oral argument in a case involving whether or not police can search the cell phones of arrestees without a warrant to explain the importance of personal experience in shaping legal judgments.
“One of my colleagues asked, ‘who owns two cell phones, why would anybody?’ In a room full of government lawyers, each one of them has two cell phones,” Sotomayor said to knowing laughter from the audience. “My point is that issue was remedied very quickly okay, that misimpression was.”
The colleague was Chief Justice John Roberts, who along with Justice Antonin Scalia,seemed skeptical during oral arguments in Wurie v. United States that anyone but a drug dealer would need two cell phones.

“That’s why it’s important to have people with different life experiences,” Sotomayor said. ”Especially on a court like the Supreme Court, because we have to correct each other from misimpressions.”

In my Salon piece, I suggest that some years from today, some Court observer (I had Jeffrey Toobin in mind) will do a profile of how Sotomayor has slowly brought her colleagues around on what the Fourth Amendment needs to look like in the digital age.

I come away from this opinion with two strong hunches. First, that years from now, some esteemed court watcher will describe how Sonia Sotomayor has gradually been persuading her colleagues that they need to revisit privacy, because only she would have written this opinion two years ago.

Of course, it likely took Roberts writing the opinion to convince colleagues like Sam Alito. Roberts wrapped it up in nice originalist language, basically channeling James Madison with a smart phone. That’s something that surely required Roberts’ stature and conservatism to pull off.

But if this does serve as a renewed Fourth Amendment, with all the heft that invoking the Founders gives it, I’ll take it.

DOD Complains about “Speculative” Risk of Bulk Collection

Maybe I have a sick sense of humor.

But I laughed at the irony of this NYT story about how Edward Snowden used a web-crawler to scrape data from the NSA’s servers.

In paragraphs 28 and 29 (of 29), Defense Intelligence Agency head Michael Flynn admits what he has avoided admitting in public hearings: he has no fucking clue what Snowden took.

The head of the Defense Intelligence Agency, Lt. Gen. Michael T. Flynn, told lawmakers last week that Mr. Snowden’s disclosures could tip off adversaries to American military tactics and operations, and force the Pentagon to spend vast sums to safeguard against that. But he admitted a great deal of uncertainty about what Mr. Snowden possessed.

“Everything that he touched, we assume that he took,” said General Flynn, including details of how the military tracks terrorists, of enemies’ vulnerabilities and of American defenses against improvised explosive devices. He added, “We assume the worst case.”

DOD doesn’t actually know what Snowden took. They know he had access to a bunch of files on military operations.

But that leaves open the question of how Mr. Snowden chose the search terms to obtain his trove of documents, and why, according to James R. Clapper Jr., the director of national intelligence, they yielded a disproportionately large number of documents detailing American military movements, preparations and abilities around the world.

But DOD doesn’t know whether he just touched them, or took them with him. It doesn’t know whether he deleted any he took before turning them over to journalists.

For his part, Snowden says DOD’s claims he deliberately took military information are unfounded.

In his statement, Mr. Snowden denied any deliberate effort to gain access to any military information. “They rely on a baseless premise, which is that I was after military information,” Mr. Snowden said.

Snowden suggests any military information he got, he got incidentally. DOD will just have to trust him.

Nevertheless, DOD will assume the worst because that’s the only way to protect DOD equities — and indeed, the lives of our military service members (that is, if Flynn’s claims are true; given his track record I don’t necessarily believe they are).

The necessity of protecting people and secret plans because of a potential risk is actually not funny at all. Indeed, it points to the problem inherent with bulk collection conducted in secret: Those potentially targeted by it have to assume the worst to protect themselves.

Mind you, if Sam Alito were a fair and balanced kind of guy, he’d tell DOD to suck it up. The risk of this bulk collection inflicting harm on military operations is speculative.

Respondents’ claim of future injury is too speculative to establish the well-established requirement that certain injury must be “certainly impending.”

But I think Alito is wrong. I definitely don’t fault DOD for adjusting to potential risks given the lack of certainty over which of their most sensitive secrets bulk collection has compromised.

If it is a problem that Snowden touched or maybe even incidentally collected data that could cause DOD great harm — if it is understandable that DOD would assume and prepare for the worst — then NSA needs to shut down its own indiscriminate scraping of data from all over the world. Because it is imposing the same kinds of risk and costs and worries to private individuals all over the world.

Update: Eli Lake got sources who received DIA’s briefing on their Snowden report to distinguish between what DIA knows and what they’re just assuming.

An EPIC Effort to Combat the Dragnet

The Electronic Privacy Information Center has filed a writ of mandamus to SCOTUS to overturn the Section 215 order turning over all of Verizon’s call records to the NSA.

Let me be clear: this is a moon shot. I’m doubtful it’ll work. A really helpful post at SCOTUSblog on the effort emphasizes how unusual this is.

EPIC’s move is the boldest of a number of legal challenges to NSA that have been filed around the country by privacy defenders in the wake of Snowden’s public disclosure of some of the details of NSA surveillance.  EPIC filed under a Supreme Court rule that permits “extraordinary” filings directly in the Supreme Court, without first making a trip through a lower court, when “exceptional circumstances warrant the exercise of the Court’s discretionary powers” and an adequate remedy cannot be obtained “from any other court.”  The history of such Rule 20 requests shows that few are granted.  The Court’s own rules say that the power to grant such pleas is “sparingly exercised.”

All that said, IMO the filing is very well crafted, and worth reading with attention.

Name check the key Justices

I first got sucked in by the way the introduction invokes two recent cases on these issues.

The records acquired by the NSA under this Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans. “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.” United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring). As Justice Breyer has recently noted, “the Government has the capacity to conduct electronic surveillance of the kind at issue.” Clapper v. Amnesty Int’l, USA, 133 S.Ct. 1138, 1158- 59 (2013) (citing, inter alia, Priest & Arkin, A Hidden World, Growing Beyond Control, Wash. Post, July 19, 2010, at A1 (reporting that the NSA collects 1.7 billion e-mails, telephone calls and other types of communications daily)). And because the NSA sweeps up judicial and Congressional communications, it inappropriately arrogates exceptional power to the Executive Branch.

Sotomayor is the one Justice who “gets” the implications of this dragnet; her opinion in Jones summarized where an ideal SCOTUS would be on these issues. If this is going to work Sotomayor is going to need to hold the hands of the other Justices and walk them through this risk. And Breyer is a key swing, a vote likely to support law and order without a good argument to the contrary.

And notice the way EPIC slipped in the separation of powers argument right there?

The motion also name checks two more crucial Justices, Republicans who have supported civil liberties issues on key cases in the past. Most importantly, it invokes Scalia’s recent warning against a panopticon in Maryland v. King (the DNA case).

Even admirable ends do not justify the creation of a panopticon. See Maryland v. King, 569 U.S. __, 133 S.Ct. 1958, 1989 (2013) (Scalia, J., dissenting) (“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless lawenforcement searches.”).

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SCOTUS Limits Privacy Act Just as NCTC Expands Access to US Person Data

Well, this is rather inauspicious timing.

The conservatives on SCOTUS have sharply limited the teeth of the Privacy Act–limiting damages to out-of-pocket damages.

The Supreme Court has dealt privacy advocates a huge setback. By a 5-3 majority, the court ruled that people who sue the government for invading their privacy can only recover out-of-pocket damages. And whistle-blower lawyers say that leaves victims who suffer emotional trouble and smeared reputations with few if any options.

Justice Samuel Alito and all four of his conservative colleagues turned back a challenge from a pilot named Stan Cooper. (Justice Elena Kagan did not participate in the case.)

Cooper said the Social Security Administration, which was sending him disability benefits, had improperly shared his HIV status with transportation officials.

In 1974, while the abuses of Watergate were fresh in people’s minds, Congress made that kind of unauthorized information-sharing illegal under the Privacy Act. The law said the U.S. had to pay actual damages to victims.

But in Wednesday’s ruling, Alito said actual damages represent monetary harm, not mental or emotional distress.

That’s absurd, according to the dissent by Justice Sonia Sotomayor. Sotomayor said that means people who suffer severe emotional distress can’t get any money — but people with minor out-of-pocket expenses can.

The whole point of the Privacy Act was to impose some kind of real penalty on the government for using the damage it collects on you in a way that ends up hurting you. Without pain or suffering damages, it will make it very difficult for aggrieved people to find legal representation to sue the government for violations. And without pain and suffering damages, the penalties would generally be so small, in any case, as to make violating your privacy the cost of doing business.

And of course, this happens just as the government decided to make its agency databases accessible to the National Counterterrorism Center for data mining to find terrorists. The Privacy Act would have been one of the few limits on what the government can do with this data. For example, the Guidelines on this new access warns that “All disseminations under these Guidelines must be … permissible under the Privacy Act,” which would normally limit dissemination (in this context) to law enforcement purposes. But now that Alito has gutted the protections of the Privacy Act, there is less to prevent some gung ho counterterrorism professional to leak information about who looks like a terrorist when you data mine their personal data. Or to use the now-collated information (the Privacy Act protections allowing you to see your own data reside with the originator here, which I suspect will mean you don’t get to see what your data gets collated with) for more personal, nefarious purpose.

These two events are unrelated. SCOTUS didn’t do this because of the government’s new power grab at NCTC. But SCOTUS’ decision does make that power grab still more dangerous.

Note: For those of you interested in these issues, I urge you to stop by FDL’s Book Salon on Saturday at 5. Tim Weiner will speak about his generally very good book, Enemies. The salon will be particularly interesting, though, because the ACLU’s Mike German will host. Not only does German’s FBI background make him an ideal reviewer of this history of the FBI’s abuses, but he’s probably the best person to address the book’s most glaring fault: inaccurate and wildly over-optimistic treatment of the FBI’s Domestic Investigations and Operations Guide.

John Yoo: Stupid Political Hack AND Craven Addington Disciple

If ever there were a doubt that John Yoo was not just a craven lackey for David Addington, but also a stupid political hack, his op-ed today puts that doubt to rest. After whining about how mean the Senate Judiciary Committee was to Robert Bork and Clarence Thomas and John Roberts (!) and Sam Alito, Yoo launches into the kind of fantastic ravings you’d expect from Glenn Beck.

Republicans can also use the filibuster to return the federal government to its proper role in our constitutional system. When Obama chose Sonia Sotomayor for the Supreme Court last year, the jury was still out on the president. It wasn’t clear if Obama was a moderate technocrat, as much of the electorate hoped, or if he was a man of the left, as Republicans feared.

That answer is now clear. At home, Obama has launched a broad campaign to redistribute wealth and engineer social change. He and his large congressional majorities enacted a wasteful $800 billion stimulus, increased the national debt by 50 percent in two years, and nationalized the health-care sector – fully one-sixth of the economy.

On national security, Obama kept to the Bush-Petraeus drawdown schedule for Iraq and reluctantly surged troops to Afghanistan. But he has tried his best to fit the war against al-Qaeda into the box reserved for criminal activities: He promised to shut down Guantanamo Bay, abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators, announced a civilian trial in New York City for 9/11 plotter Khalid Sheikh Mohammed, and automatically treated al-Qaeda’s Christmas Day bomber as a criminal suspect.

[snip]

The GOP will earn public support for its actions, but more important it will be returning the Supreme Court to the original meaning and purpose of the Constitution. The framers wanted the federal government to play a limited role in domestic affairs, and an energetic one to protect the national security against unforeseen emergencies and war. They did not establish a government to redistribute income or impose a socialistic vision of regulated markets. The Constitution’s preamble declares its purpose: to “provide for the common defense” and “promote the general welfare,” not balance the common defense and promote special interests. If President Obama doesn’t send the Senate a nominee who understands those words, the Supreme Court vacancy could be another issue to await the results of the November elections.

John Yoo, apparently, had no problem with the way George Bush redistributed wealth to the very rich with the Wall Street Bailout and huge cuts in the estate tax. And he seems to have missed the news that Obama has embraced the kind of tools of unchecked executive power–including the ability to target American citizens for death with no due process–that John Yoo loves. And how cute that John Yoo now questions the kind of civilian trials that Bush used with Richard Reid and (eventually) Jose Padilla.

But what I’m most amused by is Yoo’s critique of Obama’s choice to forgo torture (kind of).

[He] abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators…

You see, John Yoo has always pretended he neutrally read the law when he wrote his torture memos. He claimed, repeatedly, that he just did the legal analysis and had no stake in the policy decision. He suggested that he didn’t care, one way or another, whether Bush and Cheney embraced torture, he was just the lawyer doing analysis in isolation from those policy questions. He further has claimed that he only approved limited torture, not the techniques described by the press (which happen to match what the CIA IG saw on the torture tapes).

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