Wednesday, December 28, 2005

See You Next Year

I may post before then, but I doubt it.

Here's an idea for anyone looking for things to do in the Iowa City/Coralville area:

It should be a blast.

Unless my plans get canceled I won't be there, though. Which I think I told everybody, but just in case . . .

Oh, and ICCT has just announced the cast for The Seven Year Itch:


Richard Sherman ............... Josh Sazon
Helen Sherman ............... C. E. Haworth
Miss Morris ................... Carol Johnk
Marie .......................... Leila Sutcliffe
The Girl ...................... Maggie John
Dr. Brubaker ................... L. Jay Stein
Tom MacKenzie ................. Rip Russell

See you next year!!!!

Just in Time for New Year's Eve


via Waiterrant. It's worth the read - everything from how to choose, how to test, how to tip. I've soooo seen people screw this up constantly. I used to do the whole "smell the cork" thing myself, until I understood what you're looking for. I never smelled a plastic cap in my life, though. What's up with that?

At Least They Won't Borrow Your Clothes?

For the truly desperate . . . cardboard cutout significant others or roommates (depending on your level of commitment phobia).

Clearing out the 2005 Links

A Cross-Cultural Dining Etiquette Quiz from Don't Gross Out the World.

"On Once Having Been a Cute Girl" - a thought-provoking personal post by the Happy Feminist. She also has a great post on being a prosecutor, and the moral dillemas that can result:
The next twelve months in that office were a terrible strain. My boss allowed new prosecutors like me no discretion at all as to how to plea bargain cases or what sentences to recommend. I was never again asked to violate my ethical obligations, but I was constantly forced to take positions that were at odds with my views of what a just result would be in a particular case. Finally, I was asked to leave, the circumstances of which will be another story for another day.

I wound up getting another job as a prosecutor for a very rural county. My new county really needed me, and as a result, I was able to have an impact right away on my new office's policies on crime and punishment. Most importantly, I was in a position to refuse if asked to do something which made me uncomfortable. I believing that declining to prosecute inappropriate cases is a crucial aspect of the prosecutor's job. I always had disdain for prosecutors who claimed that they "had" to pursue a particular case because the victim wanted them to or because the police wanted them to or because the Grand Jury indicted.

Read the whole thing, if you're so inclined.

Congress this month passed The International Marriage Broker Act, which requires potential mail-order brides to be informed if their suitors have criminal histories or have had domestic violence complaints taken out against them. It was spawned by the Anastasia King murder case. Many foreigners who are domestic violence victims find themselves in the horrid situation of not knowing the language and believing that if they go to the authorities to report the abuse, they'll be deported. There is a U-visa possible to ensure they aren't, but nobody's quite sure how it's going to work because they've never released the rules for obtaining one. Ampersand has more.

Also on Alas a Blog: the bigotry against men when it comes to children:
A man who was seated next to a child travelling alone was asked to change his seat, because the airline has a policy against men sitting next to unaccompanied minors. The man objected, the fuss reached the press, the airline claimed that it was only doing what most airlines do on international flights.
It goes on from there.

Bits of Wisdom courtesy of Waiterrant.

News Flash: Kansas is flatter than a pancake. Kris coulda told ya that one.

We now have self-aware robots. Grreeeaaat. Does nobody pay attention to movies like the Terminator?

BTQ has an open thread. Debate the merits of eggnog!

Scientists have discovered the genetic mutation for white skin. Hey, I'm a mutant.

Ever see a cool website and want to trackback your click trail to see how you got there? There's a tool for that.

Aprille makes an excellent point on the Iowa City Public Library's policy of not stamping the due date in books - you always lose the little slip of paper and it's impossible to remember when the dang things are due.

For trial lawyers: an article on mining metadata in discovery.

Nose cells may repair spinal injuries. Let's hope they can't still link to the smell section of the brain. . .

Remember the Cory Maye case? Radley Balko has posted transcripts. He has some thoughts here.

How to tie really good knots.

Credit card not scanning? Try the plastic bag trick.

The Volokh Conspiracy had a post a while back on whether or not David Letterman could own a gun. For those not in on the original story: a woman got a judge to issue a temporary restraining order, based on allegations Letterman was sending her secret signals via his broadcasts, telling her to come marry him, among other things. Generally those subject to restraining orders are not allowed to have guns. How does this apply in this case? An interesting read, if you're into that kind of thing.

Overlawyered discusses the "I was sleepwalking" rape defense. On the one hand, you need to prove mens rea. On the other hand, whaddaya mean "Sleepwalker cleared of three rapes?"

Big Brother has moved to Great Britain? Talk Left reports Great Britain to Monitor All Vehicle Movements.

Via Michelle's Mental Clutter: "Who's on First" remade Star Wars style!

Instapundit's finally getting around to watching the new Battlestar Galactica. When's the new season start up again? And does anyone have the miniseries on DVD? I've seen the rest of it, and I don't think it's worth buying the boxed set just to get the mini. I won't need it for a while, I did get the Firefly season for Christmas. I still need Serenity, though. And what's up with Sex in the City costing something like $200 for the whole run? I'm waaay too cheap for that.

Tuesday, December 27, 2005

Tuesday Quiz

You Are In a Crunch Ice Cream

The perfect combo: a completely nuts person who likes to be touched

Actually, my favorite is the Double Fudge Brownie. Chocolate chocolate chocolate. Nothing better. Except maybe adding Hershey's syrup. . . .

Linkage Mini-Roundup

The Apple Logo is the Devil . . .

The Consumerist has a link to these .mp3 snippets of old customer support calls. Omigod some of these are good. Be sure to hit "sawed off back of computer" and "what is a paperclip".

The crying one on the midterm is just sad, though.

Office Guns constructed with clippies. Just perfect for that next meeting.

Yes, I call them clippies. I also have this. Wanna make something of it?

Apparently this is not a sex toy. (shrug) Go figure.

"World's Greatest Radar Detectors." An excerpt:
There is one feature included in all modern fighter aircraft, a feature lacking in virtually every in-car radar detector available because one manufacturer owns the patent, a feature without which a fighter’s radar warning system would be considered ineffective: incoming threat directional signal indicators.

In fighter combat, this feature is the difference between life and death. In a car, this feature is the difference between slamming on the brakes or flooring the gas. Real or false, a weak signal from the rear can (usually) be ignored, but a radar signal from the front is a critical threat. Of secondary but major importance is the police car hiding on the side of the road. Only directional signal indicators can tell you when you’ve passed a well-camouflaged police car, allowing you to floor it once passing beyond line of sight.


You choose the caption: "Stupid criminal of the week" or "A good use for spam"?

Child porn collector gets Sober.Y "FBI spam", turns himself in.

I've figured out why they've outlawed most handguns in Britain. It's so people can do stuff like this without getting shot:

"A campaign is under way to lower speed limits to 20mph in urban areas, but what's going to make drivers slow down? A bossy road sign, a hump in the road or a three-piece suite parked in the road?"

No, set up your livingroom furniture in the middle of the flipping street, and just watch driver's reactions . . .

The LA Times warns: Beware of horny goat weed.

Alllrighty then.

(via Dave Barry, who says "You don't have to tell this blog twice.")

Speaking of warnings . . . . they've found the Squirrel of Caerbannog.
Russian Squirrel Pack Kills Dog
Squirrels have bitten to death a stray dog which was barking at them in a Russian park, local media report. Passers-by were too late to stop the attack by the black squirrels in a village in the far east, which reportedly lasted about a minute.

They are said to have scampered off at the sight of humans, some carrying pieces of flesh.


It must be silly science week.

First, there's this news flash from Japan:
This roach has been surgically implanted with a micro-robotic backpack that allows researchers to control its movements. . . Unfortunately spammers are emailing the roaches when they broadcast to cell phones. "We had an incident last week where we sent a roach into an duct to test for an air leak, when we asked the roach to turn right, it responded by asking for our email addresses and offered to send us viagra in return." said Assistant Professor Isao Shimoyama, head of the bio-robot research team at Tokyo University.

Then there's this from Australia:
In a study at their own facility, a group of scientists from the Macfarlane Burnet Institute for Medical Research and Public Health in Melbourne secretly numbered 70 teaspoons. . . They then tracked the movement of the spoons over five months. . . . Supporting their expectations, 80 per cent of the spoons vanished during the period. . . . Taking a tip from Douglas Adams' Hitchhikers Guide to the Galaxy books, they suggest that the teaspoons are quietly migrating to a planet uniquely populated by "spoonoid" life forms living in a spoonish state of Nirvana.


On the sex front, there's this:
Heather Kelley, a videogame designer with Ubisoft, wanted to create a game to "teach techniques of female sexual gratification to a target audience of females." The result is "Lapis, A magical pet adventure." You can download and play Lapis for free from Kelley's site.

On the other hand, this thing isn't getting within a 10-mile radius of my chest:

The theory? "This is actually the Halo breast papanicolaou (pap) testing system developed by NeoMatrix, LLC. It uses suction devices to extract nipple aspirate fluid from the breast to be analyzed for the presence of various types of cells, including malignant ones." Link possibly NSFW. And no, thank you.

Oh, and on that note - I have a whole new idea for that New Year's Eve dress:

Whaddaya think?

Finally, I got reviewed by Got some time on your hands? Need a break from work? Side Notes offers some great Detours. This stuff can get addictive. . . But it's not all fun & games. There's also a bevy of political punditries that add to this blog's unique and distinctive voice. Two words: Addictive; Creative. Thanks!! Check out's new bloglist on Blogspot and the ever-growing sidebar. Looks like I've got some template updating to do.


Greenman's back.

'Bout time, dude. Ya think that whole directing thing is an excuse or something?

Are You FISA Material?

Mark Frauenfelder of Boing Boing posts an experiment to see if your mail is being tapped by the government. It's basically creating a couple of blind email addresses, one foreign and one domestic, and sending provocative messages including a unique URL to a Web server that you have access to its server logs. Theory being if it's clicked on, you'll know what's up. Of course, as it is also noted, "It is not a good idea to try this if you hope to ever again fly on an American airline without first being strip-searched by the TSA monkeys."

More FISA Debate

Armando of Daily Kos believes Bush's position borders on "A Little Bit of Monarchy," but feels Orin Kerr of the Volokh Conspiracy is condoning the position:

Some conservatives, it appears, favor a little bit of monarchical powers for the President. Orin Kerr, a respected conservative lawyer who blogs at Volokh Conspiracy, appears to be one of those:
Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.

Say what? It is Constitutional for the President of the United States to violate a duly enacted federal law? How does that work exactly? Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief?

Orin Kerr of the Volokh Conspiracy refutes this misunderstanding:
The legality of the NSA surveillance program raises two different questions: 1) Does the NSA's surveillance program violate a provision of the Constitution?, and 2) Does the NSA's surveillance program violate any constitutionalily valid statutes? The two are quite separate issues: Whether executive branch action violates a statute is different from whether it violates the Constitution. See Dalton v. Specter. (Hat tip: Madisonian)

In my post, I argued that the monitoring probably didn't violate the Constitution (and in particular, the Fourth Amendment), but that it probably did violate FISA. This doesn't mean that the monitoring was legal; it only means that of the two possible grounds that it could be illegal, I think it was probably illegal on one ground but not the other ground.

The distinction is a little tricky in this context because some are arguing that Article II renders FISA unconstitutional in some ways. But when I said that the monitoring was probably constitutional, I only meant that the monitoring probably didn't violate the Fourth Amendment; I didn't mean that the Constitution invalidates a statute that makes the monitoring illegal. As Armando notes, I rejected that argument. (And I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication.

I wondered if they wouldn't ditch the Article II position as way too extreme. I guess they're going with the AUF as implicit in the FISA. It should be interesting to watch.

Blawg Review Awards

The 2005 Blawg Review Awards are up. Check out the best of the blawgs and a funky rendition of Lady Justice as she-hulk.

Friday, December 23, 2005

Stuck at Work Today?

I challenge you to a penguin diving competition.

Christmas Quizzes

Knock yourself out . . .

Your Christmas is Most Like: The Muppet Christmas Carol

You tend to reflect on Christmas past, present, and future...
And you also do a little singing.

Your Christmas Stocking Will Be Filled With Little Wrapped Presents
You've made Santa a very happy fellow this year. Don't worry - what happens at the North Pole stays at the North Pole!

Thursday, December 22, 2005

An interesting idea

Copywriting Watch suggests jobseekers create a resume blog:
An online scouting report of sorts.

A candidate can write about past work experiences, what's going on in their current job hunt, and some of the things they would like to do in future opportunities. A resume is just a single page, but the dynamic nature of a blog would give a candidate a chance to shine.


Thursday Quiz

You taste like sushi. Yes, you're a bit fishy, but
if handled by the right person, you become a
delicacy. People with expert hands bring out
the best in you and your smooth texture leaves
tongues very happy.

[ How do you taste?]
brought to you by [Quizilla]

via Matt. Hey, how come you rate a milkshake and I get raw fish? I love sushi, but I'm just sayin' . . .

FISA Update

I've been keeping an eye on the blog reactions to the original firestorm, and found some more interesting linkage. Via Between Lawyers, there's this article about the reaction to the news by former agents:
A few current and former signals intelligence guys have been checking in since this NSA domestic spying story broke. Their reactions range between midly creeped out and completely pissed off.

All of the sigint specialists emphasized repeatedly that keeping tabs on Americans is way beyond the bounds of what they ordinarily do -- no matter what the conspiracy crowd may think.

"It's drilled into you from minute one that you should not ever, ever, ever, under any fucking circumstances turn this massive apparatus on an American citizen," one source says. "You do a lot of weird shit. But at least you don't fuck with your own people."

Another, who's generally very pro-Administration, emphasized that the operation at least started with people that had Al-Qaeda connections -- with some mass-spying master list. . . . But this call chain could very well have grown out of control, the source admits. Suddenly, people ten and twelve degrees of separation away from Osama may have been targeted.

Read the rest - it's got tons of linky goodness, including a pointer to this WP op-ed.

Electronic Frontier Foundation posts FISA FAQs.

Jeffrey Utech, another Iowa blogger, gives his opinion:
I think that it runs counter to the privacy protection that the Bill of Rights was written to protect. Still, the justification for it is that, if made public, the authorization would cause suspects to make their actions more clandestine and harder to track. So there is actually something in place that allows for people to be spied on secretly. Because of that, I really struggle with any justification of circumventing that act as well.
Well said.

Balkinization points out that the US AG has already basically conceded that the NSA program is not authorized under FISA, and that while they looked into amending FISA, they decided that the AUF already authorized it, so they don't need to comply:
Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence. . . . . We took the position -- the United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention." . . . For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance. . . . We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.

His analysis:
Both of the Administration's arguments here are quite radical: (i) That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code); and (ii) even if the AUMF did not repeal/amend FISA, there's a Commander-in-Chief override.

I actually think the former argument is more preposterous than the latter, although I'm sure others will disagree. . . . the Administration's contempt for the legislature here is remarkable. I should add, as well, that FISA actually has an express provision to deal with emergencies in times of war, 50 USC 1811, which provides: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." On the Administration's view, this 15-day limit, too, must have been impliedly repealed when Congress authorized the conflict in Afghanistan. . . . In any event, if the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided: After all, the President already has the authority under Article II of the Constitution to do most of what the PATRIOT Act authorizes -- indeed, to override statutory provisions that would prohibit such Executive acts -- and, as if that weren't enough, Congress has already (in the AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.

Concurring Opinions has an even better round-up posted.

Drew Miller notes on the blogwar between State 29 and Chris Woods at Political Forecast, and comes down against the wiretaps:
Look, this isn't about civil liberties versus fighting terrorism. Those two goals will always be in some amount of conflict, and it will be up to Congress to figure out what the American people are willing to accept. The debate over the Patriot Act is an example of this tension.

But this is about the rule of law. Debating as a country what liberties we are willing to sacrifice doesn't mean a whole lot if the President is willing to go around the law and just throw out all of them. I don't often talk about national issues, since it's mostly politics and there are enough blogs that reasonably represent my point of view. But this goes beyond politics, and if allowed to stand would represent a complete abandonment of the idea of checks and balances upon which our country is founded.

State's response to Woods:
Since we are not lawyers, we're going to leave this one to the mouthpieces. . . .

We still think the ultimate point of this exercise, besides selling books and making political hay, is to find a reason for far-lefty Democrats to go forward with impeachment charges (or at least the appearance of an impeachable charge) against President Bush, Vice President Cheney, Rumsfeld, and every other slightly Republican sympathizer on the planet.

My point: this may be so. I think they're going to milk this as much as possible, and see if they can instigate the whole impeachment process.

But if Bush pushes a point that's untenable, it shouldn't be supported even at the expense of giving ground to his detractors.

The NSA violates FISA, even the AG concedes that. The administration's rationale for FISA inapplicability doesn't hold any water: the speed is there, as there are emergency procedures in place to tap first, get a court order later. As is often repeated, the only possible reason not to run through the FISA retroactive order hoops is if you won't qualify for an order even retroactively. As far as the FISA statutory scheme goes the only way not to qualify is that either your probable cause is too weak or your relationship between the person being tapped and the foreign power targeted is too tenuous to support an order even under the relaxed standards of the secret FISA court.

Extrapolating the authority for warrentless wiretaps from the AUF is a stretch at best, and by throwing around the "I'm reclaiming my historical constitutional right as executive" language, he's hinting at a showdown that's gonna go way beyond the AUF, because if the power is inherent in the presidency, then by implication the FISA itself, despite being a validy passed statute signed into law by a sitting president, is an infringement on the inherent constitutional powers of the executive branch - thus rendering all such statutes as empty rhetorical excercises. And while the "we're at war" language is being bandied about based on Iraq and Afghanistan, if the "war" is the "war on terrorism," well, there have been terrorists in one form or another since the beginning of time. Who is to say when it officially ends, if ever?

Leftists are pointing to Nixon's overreaching against Vietnam war protesters in the seventies as a prime example of presidential abuse, and conservatives are justifiably feeling the heat. But the scenario could just as easily be flipped, a radical left government using this program in the future against groups with a conservative agenda. So long as some kind of connection with some kind of foreign group they could label "terrorist" is made, it's supportable, right? Do we really want to open that particular door?

I'm rather protective of my constitutional rights. While the Fourth Amendment status of the evidence seized from this might be debatable, statutes such as the FISA are the only remaining safeguard. There are some things I'm not willing to cede to the terrorists, even at the expense of less-than-perfect intelligence enforcements, and this is one of them.

Wednesday, December 21, 2005

Wednesday Quiz

You scored 56 masculinity and 53 femininity!
You scored high on both masculinity and femininity. You have a strong personality exhibiting characteristics of both traditional sex roles.

My test tracked 2 variables How you compared to other people your age and gender:
free online dating free online dating
You scored higher than 34% on masculinity
free online dating free online dating
You scored higher than 25% on femininity
Link: The Bem Sex Role Inventory Test written by weirdscience on Ok Cupid, home of the 32-Type Dating Test

Some Blogs Have Tips on That

Okay, so the mainstream media is fascinated by blogs. I understand that. Some find them intimidating, others find them refreshing, but this is the first I've heard this:
How big have blogs become?

Bigger than Jesus. Bigger than sex.

Oooookaaaay. I concur with N.Z. Bear:
Sorry to rain on the parade, but if you think blogging is bigger than sex, you might be doing the blogging right, but you definitely aren't doing the sex right.

Tuesday, December 20, 2005

FISA and Wiretapping Roundup Brain Dump

I've no experience with the FISA, though I am familiar with the standard criminal procedure of applying for a search warrant. If you want to educate yourself on the issues, the internet is the place to go. Here are the links to hit:

1) Professor Orin Kerr, who specializes in criminal law at George Washington University Law School has a must-read legal analysis of the issues on the Volokh Conspiracy. It's getting hits left and right right now, so I haven't gotten it to load yet. I can't even get a cache from Yahoo. From all indications, though, it's the definitive analysis to date, so hang in there.

UPDATE: Ha! Got it. I'm posting a quick-and-dirty digestion but it's NOT final nor should it be a substitution for reading Kerr's post, given my absolute unfamiliarity with the issue:

a) There are two exceptions to the Fourth Amendment that could apply: 1) The border search exception (You can search people coming in and out, and their computers, too. Hasn't been held to apply to raw data like a telephone call.) and 2) The arguable national security exception (No court has held that there is a national security exception to the Fourth Amendment, but they have specifically reserved that issue for future determination). Given the current understanding that what was being intercepted were telephone calls from people in the US to areas outside the country, it's at least arguably allowed by the Fourth Amendment under one of these two exceptions. But is it authorized by the Constitution or congressional authority?

b) 50 U.S.C. 1809 (part of the FISA) prohibits "electronic surveillance" except as authorized by statutory law:
§ 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

50 U.S.C. 1802(a)(1), one exception, gives the President the right to authorize electronic surveillance solely directed at communications transmitted exclusively between or among foreign powers and certain non-spoken intelligence, if there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. Kerr points out there are some issues as to whether groups such as Al Quaeda would qualify under this, but "I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable."

c) Next, we've got the Authorization of the Use of Force after September 11th. Kerr posts the excerpt:
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The full link is below. The question: Is this actually a "statute that authorizes surveillance" such that it gives an exception to 50 U.S.C. 1809? The Hamdi v. Rumsfeld case in the Supreme Court discusses the legal effect of the AUF, but it's apparently unclear as to whether it extends to this kind if surveillance. Kerr's take is that it doesn't, because: a) wiretapping isn't exactly "force" as mentioned under the Authorization; b) while O'Connor's opinion in Hamdi indicates that acts "so fundamental and accepted an incident to war" fall within the authorization, it's ultimately a question of how broadly you define the acts here as to whether they are 'incident to war.' Spying in general would be, domestic surveillance of US citizens . . . not so much; and c) Hamdi disallowed indefinite detention of foreign combatants for the purposes of interrogation - circumventing civil liberties for the purposes of getting information. This wiretapping could be analogous.

d) The Constitution. Kerr provides this link to a supplemental brief filed in the FISA Court of Review, in which the government apparently makes the argument that Article II grants this authority to the President:
The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats.

In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President's inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President's Commander-in-chief and foreign-affairs powers; noting that the country's self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President's foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President's foreign-affairs powers justify exception from warrant requirement).

Kerr's response:
I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment.

He goes on to cite relevant portions of the caselaw, discussing whether the President's Commander in Chief power should trigger a relaxed Fourth Amendment standard and balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. None implies Article II makes Congressional regulation of the President's powers completely inoperative.

So the upshot appears to be that while the Fourth Amendment may arguably not be violated by this type of wiretapping, it may be prohibited by law under the United States Code. Considering the FISA was specifically enacted as a check on Presidential wiretap powers in reaction to the Nixon Administration's surveillance of their opposition, this point of view seems to be the status quo, which Bush is seeking to have changed. The update below, containing an excerpt from Bush's press conference, supports this view.

2) Law Professor Daniel Solove, author of The Digital Person Technology And Privacy In The Information Age, has another must-read legal analysis. It's a little shorter than Kerr's, and it pulls up immediately for those who want the fast scoop.

3) Via Iowa Voice, the links to the text of the FISA act:
a) Who has authority to hear the applications for a Court Order.
b) The procedure for getting a Court Order, which the President alleges is too cumbersome.
c) The findings the Court has to make to support the Order.
d) How the information acquired per the Court Order can be used.
e) Special authorization for warrantless tapping for the first fifteen days of a war.

4) Additional links to the original text of other authority via Concurring Opinions:
a) The Authorization for the Use of Military Force of September 14, 2001.
b) Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)
c) United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)
d) Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress's Authorization to Use Military Force)
e) The original NY Times article that broke the story. (registration required, or hit Bugmenot for a backdoor password and username).

There's a whole section of links to other blog commentary as well, head over there for the punditry.

NOTE the interplay between the FISA and the text of 18 USC § 2511(f) which appears to also criminalizes wiretapping outside of specifically proscribed situations, and states:
(i) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
(A) a court order directing such assistance signed by the authorizing judge, or
(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

USC Section 2518 has specific - and different - procedures for obtaining a court order, and also allows for an emergency tap but requires a court order within 48 hours rather than 72. Kerr addresses this issue in a post update:

UPDATE: A lawyer I know who works in this area e-mails in additional thoughts:
Of course you’re right that Keith and Katz reserved the question whether the President may engage in warrantless surveillance of foreign-based threats to the national security. While the Supreme Court has never addressed the issue, a number of federal appellate courts, some of which you cite at the end of your post, answered that question in the affirmative in the years immediately after Keith. See, e.g., United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Truong, 629 F.2d 908 (4th Cir. 1980). But see Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).

The interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There’s a respectable argument that it does. FISA repealed Title III’s reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence. Given that repeal, we might be in Category Three from Justice Jackson’s Steel Seizure concurrence — "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."

Another excerpt, this time from the comments to Kerr's post:
So, it seems to me that while 50 USC 1809, taken alone, allows one to look for statutory authorization anywhere, 18 USC 2511 limits where one can look for authorization to three places: chapters 119 and 121 of Title 18, and FISA.

Accordingly, I think 18 USC 2511 provides an additional barrier to holding that the 2001 AUMF provided statutory authorization as per 50 USC 1809. Specifically, one would have to hold that the general language of the AUMF somehow amended the more explicit language of 18 USC 2511. And I am pretty sure that violates several canons of statutory construction.

My opinion on the moral/legal issues: From my first read-through, it appears the President's legal position is questionable via Kerr's and Solove's excellent analysis. It appears he's pitting the executive powers versus the congressional powers in a constitutional battle.

The President's rationale? From the Press Conference transcripts via CNN:
QUESTION: . . . Why did you skip the basic safeguards of asking courts for permission for the intercepts?

BUSH: First of all, right after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want.
We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker, and that's important. We've got to be fast on our feet, quick to detect and prevent.
We use FISA still. You're referring to the FISA accord in your question. Of course we use FISAs.
But FISAs is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.
And having suggested this idea, I then, obviously, went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.
As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.

So the AUF is valid, the FISA inapplicable, and 2511 is nowhere to be found. But to rely on the AUF is to imply that Congress has a say in the matter. If Congress can statutorily check the President's authorization of a wiretap, why would FISA - the more specific statute - be trumped by the broad generalization of the AUF? And if you're merely arguing separation of powers, why refer to the AUF at all? If in fact he's arguing straight constitutionality, and that Congressional checks on his power are invalid, then to choose Bush's interpretation, the Courts will have to specifically disavow any check by Congress on this specific Presidential power. The potential consequences are staggering. What's more, I don't think it should be morally defended. I heard an argument put forth on this morning's news that the paperwork involved in obtaining a Court Order under FISA, particularly the burden of proof that must be shown and the particularity which the information sought must be described, is simply too cumbersome for the fast-moving electronic age. Okay, fine. So go to Congress and request the burden of proof be lowered, or the paperwork needed streamlined. Don't simply say "aw, to hell with it."

Okay, regardless, so he's relying on the Authorization of Force and the Constitution and somehow calling FISA inapplicable as being for long-term use only in spite of the historical context of the act and the greater specificity to the situation at hand. Hmmm. And his excuses for doing so are vague: we need to act fast. Okay, fine. Well, I don't have a lot of federal spy experience. But if I had an officer in my office needing a warrant based on actual probable cause, we could generally whip one out in a few hours, and get a judge or magistrate in the middle of the night if we needed one. I presume the federal system is at least as fast.

Still too slow for you? Well, 1805 provides for an emergency procedure in which the AG can authorize an immediate tap with a hearing to be held within 72 hours afterward. How slow is "immediate?" Or is it this you object to:
(f) Emergency orders Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that— (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

(emphasis mine). Again, if you don't like the burden of proof, try to get it changed. Don't say "aw, to hell with it." I may be pro-prosecution, but these are my civil liberties you're fucking with.

NOTE: If I hadn't said this enough, I'm still digesting this issue. The complexities can cause brain-bleed, so head for those who are far more educated than I for the definitive posts. I also reserve the right to update this as my knowledge is enhanced. It's lots easier than a bunch of mini-posts saying: "No, wait. . . "

Cass Sustein has broken it all down, but reaches a different conclusion:
The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

He goes with "yes" on number one, interpreting the surveillance broadly as an incident of war. Two is questionable, but supported by lower court cases. Number three is generally felt to be yes, but then he notes number 4, in which he feels there's no prohibition against Bush's arguing the FISA is unconstitutional as a check on his power. Of course, there's nothing saying the Court can't find the other way, either. Finally, under 5, everyone appears to agree there's a good argument it doesn't violate the Fourth Amendment based on the exceptions Kerr noted.

My note to this analysis: the potential "out" provided by 1809 of the FISA prohibits wiretapping "except as provided by statute." If the AUF is a statute that would allow this kind of tap, presuming of course it's "incident to war" under #1, that would take care of #3. The issue will become whether the AUF is such a "statute" as per 1809. On the other hand, there's 2511 . . . in fairness, 2511 appears geared more toward the service provider's liability than the government agent's, but as it specifically states:
Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
That seems to argue it applies, and as it doesn't specifically recognize the AUF, it may trump on this issue. The question then becomes whether 2511 is unconstitutional. That ties in to the constitutionality question of the post-Keith line of cases cited by the commenter to Kerr's post. Oookay. So I looked at United States v. Truong, the most recent of the cases. It's available on the outrageously expensive Westlaw database, so I can't link, but here's the deal: portions of the opinion seem to center on the FISA as a solution to the balance of power issues in the warrantless search arena. It states that the executive branch does have power to conduct warrantless searches and that these are not violations of the Fourth Amendment based on a national security exception:
We hold that the warrantless searches and surveillance did not violate the Fourth Amendment, that the espionage statutes were properly and constitutionally applied to this case, that the defendants were not denied compulsory process, and that the district court did not err in any of its evidentiary rulings. Relying on the concurrent sentence doctrine, the majority holds that we should not rule on defendants' claim that the theft-of-government-property statute does not apply to this case.
The court gave three rationales:
First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations. . . .

More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance. . . .

The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S. at 316-18, 92 S.Ct. at 2136-2137, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.

In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance. . . .
Clear enough? However, there's Footnote 4 right on that same page:
FN4. Since the surveillance was conducted in this case, Congress has enacted the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. s 1801 et seq. That statute requires that executive officials seek prior judicial approval for some foreign intelligence surveillance. The Act does not, however, transport the traditional Fourth Amendment warrant requirement unaltered into the foreign intelligence field. The statute does not contain a blanket warrant requirement; rather, it exempts certain categories of foreign intelligence surveillance. 50 U.S.C. s 1802. Nor does the statute require the executive to satisfy the usual standards for the issuance of a warrant; the executive need demonstrate only probable cause that the target is a foreign power or a foreign agent and, in the case of United States citizens and resident aliens, that the government is not clearly erroneous in believing that the information sought is the desired foreign intelligence information and that the information cannot be reasonably obtained by normal methods. 50 U.S.C. s 1805, s 1804(a)(7)(E). Finally, the statute empowers the Chief Justice to designate seven judges to hear the requests for foreign intelligence warrants and thus creates a special group of judges who will develop expertise in this arcane area. 50 U.S.C. s 1803.

While the Act suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence surveillance while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President. The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary, inexpert in foreign intelligence, to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision. Such an attempt would be particularly ill-advised because it would not be easily subject to adjustment as the political branches gain experience in working with a warrant requirement in the foreign intelligence area.

Is it just me, or does this pretty much call the FISA the answer to the whole issue? If that's the case, it will be interesting to see the President use this line of cases to argue the inapplicability of the FISA.

(SIDE NOTE: The Truong case goes on to discuss the admission of the evidence against the defendant in Fourth Amendment terms. The exclusionary rule: if it's not in violation of the Fourth Amendment - or other appropriate legal protections - it can come into a criminal charge against the subject. But then there's the other issue: even if it comes into court, there are federal statutes criminally prohibiting wiretapping. Given everyone seems to be decided that the Fourth Amendment likely provides an exception, if the FISA or 2511 criminally prohibits the tapping itself could there theoretically be a case where the evidence is good but the agent is criminally charged with illegally obtaining it? Yikes.)

Regardless, it appears that there is some support for a constitutional power, but even the court cases supporting it recognize Congress' ability to impose some reasonable limitations. If Bush intends to take the extremist route, he's going to have to argue all the statutes - the AUF, the FISA, and 2511, are all unconstitutional inroads on his power. His alternative is to argue that the AUF is an exception to the FISA and 2511 is either unconstitutional or specifically abrogated by the FISA and AUF. The second route is more probable, and it looks like that's where he's going. But will the publicity on this be worth it? Again, there's only one reason I can see to circumvent the FISA, and given the emergency provisions it has little to do with time. It's more a burden of proof thing. Do we want the wiretaps to be allowed based on a semi-articulable suspicion, or do we want probable cause?


Of course, for those who would think this is all about Bush, I offer this very apt quote from TalkLeft:

Let me ask why every smart blogger out there and every pundit on TV is talking about wiretapping when the obvious problem is that the U.S. government is now monitoring the entire U.S. Internet a la Echelon or Raptor.

Wasn't it called Carnivore at one time? Is it different now?

But in my opinion, there is a small distinction. This President is actively defending the idea as a good thing to which we should all subscribe. The implicit message: why wouldn't we want to know what Al Quaeda operatives are up to? Time is of the essence, and if we don't circumvent FISA, valuable time will be lost. It is absolutely necessary to fight the war on terror that we have warrantless wiretaps conducted for an indefinite period of time, with no need whatsoever for the type of evidence to connect the people being tapped with any foreign power that would be needed by a FISA court order.

If you think I'm overstating it - well, why not get a court order under FISA? With emergency procedures, you have instantaneous taps and explanations afterward. All you need is cause - evidence linking the person being tapped to the foreign power. Then you can tap away for a couple of months without hassle. Want to extend the time? Fine, just bring in some further showing. Unless there's something I'm missing, the only rationale is to circumvent the evidentiary requirement. If that's the case, then what they're really asking us to do is allow them to tap people that they don't even have probable cause are working with foreign powers. That's me and you, guys. It may be that the government has been doing this for years, but it doesn't make it right and it doesn't make it defensible and I resent being told to go away and play quietly while the government decides who it will and will not spy on, without any evidence necessary whatsoever. That's simply not acceptable.

Even Bush's summary "we need it 'cause we need it" aside, look at the rationales in Truong: 1) The government's need for flexibility, 2) its practical experience, and 3) its constitutional competence. Well, the FISA is pretty damn flexible, as I've repeatedly stated. Government experience is granted, but FISA created a special "secret" court that presumably has been honing it's own expertise since 1978. Despite my dislike of secret tribunals, this at least provides some check, some guarantee that they're not tapping my phone just for the hell of it. The goverment's constitutional competence also exists, but no one has ever held that it's utterly separate and unanswerable to congress or the courts. And it really doesn't stop there. How tenuous must the connection be between government action and a war for the administration to argue it's authorized under the AUF? To keep with the phone example - what about the phones of people who call people who call suspected Al Quaeda operatives? What about the people who call them? What about anyone who calls anyone, just in case? Technology is not far off from being able to monitor everything and sort for content, if it can't already. I hope this particular scandal curtails the use of raptor, carnivore, or whatever other spy equipment is used to monitor private calls without sufficient cause to support a court order, regardless of the administration using them. I'm sure Clinton would've defended any programs he used as well, but to twist around overused cliches, while the pot may be calling the kettle black, two wrongs definitely do not equal a right to unlimited power for warrantless wiretaps.

UPDATE #677859
Kevin Drum hones in on a possible explanation:
President Bush, answering questions at Monday's press conference: "We use FISA still....But FISA is for long-term monitoring....There is a difference between detecting so we can prevent, and monitoring. And it's important to know the distinction between the two....We used the [FISA] process to monitor. But also....we've got to be able to detect and prevent."

Attorney General Alberto Gonzales, telling reporters why Bush didn't simply ask Congress to pass a law making the program clearly legal: "We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program."

New York Times editor Bill Keller, explaining why the Times finally published its story last week after holding it back for over a year: "In the course of subsequent reporting we satisfied ourselves that we could write about this program — withholding a number of technical details — in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record."

None of these quotes makes sense if the NSA program involved nothing more than an expansion of ordinary taps of specific individuals. After all, the FISA court would have approved taps of domestic-to-international calls as quickly and easily as they do with normal domestic wiretaps. What's more, Congress wouldn't have had any objection to supporting a routine program expansion; George Bush wouldn't have explained it with gobbledegook about the difference between monitoring and detecting; Jay Rockefeller wouldn't have been reminded of TIA; and the Times wouldn't have had any issues over divulging sensitive technology.

It seems clear that there's something involved here that goes far beyond ordinary wiretaps, regardless of the technology used. Perhaps some kind of massive data mining, which makes it impossible to get individual warrants? Stay tuned.
(emphasis mine).

He goes on to differentiate this from Echelon:
The problem is that Echelon has been around for a long time and no one has ever complained about it before — so whatever this new program is, it's something more than vanilla Echelon. What's more, it's something disturbing enough that a few weeks after 9/11 the administration apparently felt that even Republicans in Congress wouldn't approve of it. What kind of program is so intrusive that even Republicans, even with 9/11 still freshly in mind, wouldn't have supported it?

An interesting theory. More will, I'm sure, follow.

Monday, December 19, 2005

More Quizzes

Use palmistry to figure out how funny you are. My score:

Or, you can find out how sexy you are. My score:

Flattery will get you linkage.

Monday Quiz

Take the quiz:
What Trojan-war era woman are you?

Wise. Forlorn. Tragic. Princess of Troy, beloved of Coroebus, a prophetess cursed never to be believed.

Toldja so.

via Michelle's Mental Clutter.

Friday, December 16, 2005

Friday Quiz

I'm Fantine!
Though I mean well, my trusting nature gets me into appalling amounts of trouble. Still, I do my best to get through, and I would do absolutely anything for my loved ones.

Which Les Miserables Character Are You?

via Watersblogged, one of the bunch of new Iowa blogs I added to the sidebar today. I'll be adding more once I get around to snitching reviewing's sidebar links.

Dating Tips

from the 'net:
It seems to me that the best dating advice to offer teens is just to lower expectations -- whatever you do, it won't work out, and you'll be all upset, and then you'll get over it and life moves on.

Y'know, he has a point. . .


The Iowa Supreme Court has new opinions up today.

Brede v. Koop is a case involving easements.

Iowa Supreme Court Attorney Disciplinary Board v. Zenor is another case busting a Clay County prosecutor for pleading traffic tickets down to a cowl-lamp violation. An old post on last month's disciplinary case involving cowl-lamp pleas by the Spencer city prosecutor from the now-defunct Random Mentality:

Iowa Iowa Supreme Court Attorney Disciplinary Board v. Howe involves discipline of a former city prosecutor regarding his plea bargaining system. Apparently, the city of Spencer had a longstanding standard plea agreement if you wanted a moving violation dropped to a non-moving:
Typically, the city would agree to reduce a simple misdemeanor moving traffic violation to a simple misdemeanor cowl-lamp violation; in return, the defendant would plead guilty to the amended citation.[2] See generally Iowa Code § 321.482 (2005) (stating violations of chapter 321 are simple misdemeanors unless otherwise declared). A plea agreement was generally sought by the defendant to avoid an adverse impact on the defendant’s license or auto insurance. In each instance, the amendment was allowed and the guilty plea was accepted by Magistrate Nancy Whittenburg, now a district court judge.

The amendments were also only allowed if the citing officer agreed to the change. For the curious, here's the cowl-lamp statute: a motor vehicle “may be equipped with not more than two side cowl or fender lamps which shall emit an amber or white light without glare.” Iowa Code § 321.406. The opinion states that Howe admitted that vehicles have not been equipped with cowl or fender lamps “for a considerable number of years.” Because the only way of violating the statute by the way it is worded is to have more than two side cowl or fender lamps, it is apparently impossible for a modern vehicle to have been in violation of it. Regardless, Howe had thus amended over 150 charges, and Judge Whittenburg had signed off on the amendments. Basically, it was felt that if everyone knew what was going on, and the amendment benefitted the defendants, it wasn't unethical. The Supreme Court disagreed:
We think the respondent’s conduct clearly violated the Iowa Code of Professional Responsibility. DR 7-103(A) states that a prosecutor “shall not institute or cause to be instituted criminal charges when the lawyer knows or it is obvious that the charges are not supported by probable cause.”[3] There is no dispute in the present case that the cowl-lamp charges were not supported by probable cause and that the respondent knew it. . . . The fact that the original traffic citations may have been supported by probable cause is beside the point because Howe is not being disciplined for instituting the original charges. His ethical violation arises from the amended charges alleging cowl-lamp violations, which clearly lacked probable-cause support. . . . Likewise, the fact that plea bargains to lesser or related charges are authorized by our rules of criminal procedure is also irrelevant. . . . Howe is not being disciplined for allowing the defendant to plead guilty to a reduced charge. Again, his ethical violation is filing an amended charge that is not supported by probable cause.

Howe's case doesn't end there, however. He was also charged with a violating the rules against conflicts of interest. In one case, Michael Mouw was charged with four offenses by the Spencer police department in late 2002 and early 2003. Apparently, one of the charges was a state charge, the remaining three were city charges. Howe represented Mouw on the State charge (that was prosecuted by the county attorney), but represented both Mouw and the city on the other three matters and represented Mouw on an administrative driver’s license problem arising out of one of the criminal charges Howe prosecuted. From the opinion, it appears Mouw hired Howe on the burglary charge, and in the process of negotiating a plea on that charge, he agreed to wrap in the minor city charges. Once that deal was done, he represented Mouw on the license issue. This pretty much conforms with what the Court indicates was his standard practice:
[W]hen asked to represent defendants on charges filed by the Spencer police and prosecuted by the county attorney. . . Howe would tell such defendants that he could not represent them against the Spencer police and that he would have a conflict of interest if he were to go to trial against Spencer police officers. Notwithstanding this conflict, Howe would offer to obtain the police records informally from the county attorney in order to evaluate the case. He would then review the records and give the defendant his opinion as to whether the case could be successfully defended. If the client chose to defend against the charge, Howe would refer the case to another lawyer. If Howe believed there was no defense, he would recommend a second opinion. If the defendant did not want to defend the charge or obtain a second opinion, Howe would contact the prosecutor about the possibility of a plea agreement. Howe would also “take care” of the initial appearance and arraignment. If the defendant ultimately pled guilty, Howe would assist with the plea.

The Court noted two other cases that followed that same general pattern. They discussed the impact of Howe's actions on the public perception of the legal system:
When people learn that a city prosecutor represents the very defendants he is prosecuting, they will not view the justice system as fair or impartial. They will also rightly question the motivation of a prosecutor who agrees to a disposition favorable to a criminal defendant and then later uses the favorable result for the advantage of the defendant whom the prosecutor now represents. The respondent’s repeated disregard of his conflicting loyalties generates distrust and skepticism of the courts, and reflects adversely on the entire bar. . . . Unfortunately, Howe’s routine reduction of traffic citations to cowl- lamp violations has a similar impact. Admittedly, plea bargains are a common and useful tool for resolving criminal cases. But when charges are filed that are known to all to be bogus and guilty pleas to those charges are accepted in order to allow defendants to escape the adverse consequences of the offenses they actually committed, there can be only one result: respect for the court system is diminished and the public’s confidence in the integrity of the criminal justice system is seriously undermined. While the disposition of a traffic offense in the manner employed here may be the expedient way to dispose of a citation to the satisfaction of the parties involved, it sends the wrong message to the public. It makes a mockery of the justice system when a defendant is punished for violating a statute that he unquestionably did not violate.

The court then suspended Howe's legal license indefinitely, with no possibility of reinstatement for a period of four months.

Regarding the plea reductions: as a new prosecutor, I always got "offers" from defense counsel to plead to nonmoving violations, often combined with an offer to pay a higher than usual fine, in order to preserve the defendant's licensing or insurance status. I see nothing wrong with that in general, as it saves the State the cost and effort of a jury trial, and saves the defendant the risk of conviction. As a rule, I always required it to be something the defendant actually did. I remember one time in Muscatine county when defense counsel, the defendant, the officer, and myself were all reading through citation books, trying to find something, anything that the defendant could honestly plead guilty to. We did eventually find something, though I believe it took us about a quarter of an hour (almost as long as the trial would've taken, so I was actually being quite nice). So the scenario is not that unusual, but I think the infraction is real. You can't just make up a charge out of thin air.

Regarding the conflicts of interest: This opinion basically lays down the blanket rule that city attorneys cannot represent criminal clients on any state charges originating by the police department of the city which the attorney represents. I think that's a bit of a departure from what was understood before. In this case, Howe took it too far in trying to wear two hats at the same time. Not such a good idea, to put it mildly. But I recall other city attorneys who would take defense cases in which there were no city charges pending, but the tickets were written by the city police. In other words, one guy, two hats, but worn at different times. How this system would come about involves the economics of rural Iowa: in most very rural counties, there is a sheriff's office, and the city police force of the town constituting the county seat. If the other towns even have a police officer, it's usually some guy from the county seat town working a second job on his down time. The state patrol is there, but under the current budget constraints they're usually spread pretty thin. So many of the state charges will be brought by city police officers, wearing one hat or another. Meanwhile, the city attorney position in those areas will probably not carry a sustainable salary - rural cities can't afford that much. So the city attorney keeps a private practice to make up the difference. Defense work is a decent chunk of that practice, and the theory was that so long as there was no actual conflict between the parties, it's okay (the two hats non-simultaneous scenario). I think this case changes the picture slightly by basically limiting the criminal cases the city attorney can take to those originating with the sheriff's office or the state patrol. One guy, one hat. Period. I don't think it's an incorrect analysis, the Court is quite right in pointing out that the public could well think the city attorney was somehow "in cahoots" with the officers to fix cases if he takes defense work involving those same officers, even if he doesn't push the line like Howe did. But I understand why the system got that way . . . and I hope tax work and wills pay well these days.

Thursday, December 15, 2005


I just discovered Yep, it's exactly that: post after post of sickeningly adorable pics.

Just look at these faces:


Just don't send the URL to whoever you know that keeps those sappy email forwards going. I mean, we all know one or two of them. They'll cut and paste them into one and we'll have a whole new set to contend with, and of I get one more of those stupid poems with the stupid little angel gifs I'm gonna have to hurt someone.

And why is it everyone who forwards the things says "I normally don't forward these, but . . ."

Yes, they do. They do it just about every time. There are cutesy-email-forwarders and anti-cutsey-email-forwarders. Some people are just blinded by the cute: If it has the words "special friend" or pictures of angels, babies, kittens or puppies, they're hitting "send to all." Imagine what they'd do with a site like this. I think they'd hurt themselves. I mean, you think they'd go onto cuteness overload and finally be cured, but that won't happen. Instead, they'll get drunk on the cute and start sending out emails left and right, each with a different cutesy poem to go with the cutesy pic, and our inboxes will be full of cutesy emails from now until the next millenium, all starting of with "I normally don't send these, but . . . "

I think we need to hide this site.

It's a simple matter of self-preservation.


Hey Nelle, what about this one?

Though the fact they call it "eggplant" in color worries me. What if it's that weird brown/pink color?

Side Note

It's been mentioned before that I'm a tad verbose. Particularly in writing. I type rapidly and tend to ramble, a deadly conversation combination.

It just occurred to me that I could've actually gotten through school by boring my teaching assistants to death.

"Ah, hell with it, I'll just skim the rest and give her an A. . . "

Whatever works.

The Grandview Gladiators

The Des Moines Register has this: Hansen: Whom to please? Sledders or golfers? It outlines the problem:
. . . Grandview [Golf Course] needs a face-lift. It's easily the worst of Des Moines' three municipal courses. It leaks the most money. . . .

But here comes a nonprofit called the First Tee that wants to sink some money into the place. The nonprofit wants to introduce young golfers, many from low-income families, to the game. . . .

Grandview is a good choice. It's a forgiving course, well-suited to beginners. But here's the hitch:

The First Tee requires a driving range, so Grandview has to build one.

The plan is to put it on the 10th hole. To do so, they have to carve into the sacred sledding hill. The sledding people hear about it and start circulating petitions calling for city leaders to leave their beloved hill alone. . . .

I have an idea. Each side chooses a representative. Each representative is armed with a saucer sled and a golf club. First to yield loses the hill.

Or something.


Wednesday, December 14, 2005

Serious Blog Debate

Jeremy at Crescat Sententia has another good philosophical post up. A couple of quotes:
Questioning whether Christianity is more than a Christian ethic seems to be a common theme these days (lv: The American Scene). Perhaps it is the Christmas Season, or perhaps it is because of the continuing (and continuingly tiresome) framing of the Intelligent Design debate as a conflict between Science and Faith, but whatever the cause, the retread of this question produces few points of interest or edification. It is probably because the typical debate participant accepts its shoddy frame, meaning that we poor spectators peer through a fogged windowpane only to see quite a few Biblical "literalists" take arms against a sea of militant material monists, and by opposing, bore them. . . .

Still, that distressingly long piece in this months Harper's illustrates an insecurity at the basis of the liberal consensus. Whence our principles? By containing Jesus, by making Christianity a historical-ethical tradition alone, secular moralists are able to have their cake and eat it too. They are able to locate their groundless ground within a historically effected moral hermeneutic (the weight, the authority of Christ), but they are able also to pick and choose a set of values by denying the fixedness of the very authority they cite. Upon this rock, which is not really rock, I will build my welfare state. . . .

I'm going to need time to fully digest this before responding, but read the rest.

Just Babbling

I learned to use the snowblower last night, and fully intended to plow myself out this morning. Then I realized that even if I got my part of the road cleared, there is still a good half mile between me and the nearest highway, and it's not gonna get plowed out until all the major roads are clear. D'oh. At least I can work from home. And without the commute, it's far more efficient. It actually gives me time to watch the morning news. I turn on KCRG. It's basically the weather report reiterated from thirty different angles. The highway patrol, the snowplow drivers, the neighbors, the schools, they all apparently agree the weather's crap and we should stay the hell home. No kidding? I flipped it off when the news flash about a woman losing her purse in the mall came on.

I fire up the computer and started my morning paper/blog troll early. Pretty much status quo, for Iowa. The fake rainforest in Coralville is still homeless, and despite the glaring inability to get intelligent investors to sink their money into this particular pit, somehow people still believe the project is viable. Go figure. Meanwhile, the homosexual community in Iowa has decided Vermont is too far away to properly coordinate wedding plans, so they'd like to hold their ceremonies here.

This has to be the coffee-snorting headline highlight so far: Superman's Penis Is Too Big For The Cinema. I can see where this would be a crisis of. . . um . . . critical proportions? I think I can speak for women across the country (and approximately one-tenth of the male population, the last I heard) when I say, "Let me be the judge of that."

Oh, and there's this special report:
Environmentalists in Brazil have released a seven-foot-long anaconda back into the wild after it swallowed a 330lbs calf. The snake was captured by police and residents, in a rural area of the city of Ipiazu after it swallowed the animal whole. Seven men were needed to transport the reptile back into the wild. Experts believe many wild animals are leaving their natural habitats and venturing into city areas due to ongoing deforestation.

And I thought I was stupid for my personal mouse catch-and-release program. What are they going to do when Nag comes slithering back into town and eats the mayor or something?

Hawkman like, so totally slams my “dickwad” comment about the Hooter’s handbook
. Okay, like, it was totally a space, ya know? Oh, and I’m sooo not going to be a divorce lawyer, nor will I try this. I’m actually not sure which would be more painful.

Breaking News

Have you been following the story of Cory Maye? If the facts are as reported, this is insane. I wasn't going to blog about anything serious this morning, but the story popped up on my aggregator and I think it's too important to bypass. The Agitator broke the story on the blogosphere:
Cops mistakenly break down the door of a sleeping man, late at night, as part of drug raid. Turns out, the man wasn't named in the warrant, and wasn't a suspect. The man, frigthened for himself and his 18-month old daughter, fires at an intruder who jumps into his bedroom after the door's been kicked in. Turns out that the man, who is black, has killed the white son of the town's police chief. He's later convicted and sentenced to death by a white jury. The man has no criminal record, and police rather tellingly changed their story about drugs (rather, traces of drugs) in his possession at the time of the raid.

The story gets more bizarre from there.

Maye's attorney tells me that after the trial, she spoke with two jurors by phone. She learned from them that the consensus among jurors was that Maye was convicted for two reasons. The first is that though they initially liked her, Maye's lawyer, the jury soured on her when, in her closing arguments, she intimated that if the jury showed no mercy for Maye, God might neglect to bestow mercy on them when they meet him in heaven. They said the second reason May was convicted was that the jury felt he'd been spoiled by his mother and grandmother, and wasn't very respectful of elders and authority figures. The facts of the case barely entered the picture. Gotta' love the South.

It gets weirder. Maye's family terminated his trial attorney after he was convicted. In her place, they hired a guy from California with no legal experience who convinced them that he'd had bad representation (given his lawyer's closing argument, he was probably on to something). The new fellow has since failed on several occasions to file the proper appeals
and has gone on to do some investigative work:
Today, I talked to the circuit court clerk for Jefferson Davis County, Mississippi.

Mississippi has surprisingly transparency-friendly open records laws, so I was able to ask for a copy of the search warrant that led to the raid on Maye's home. . . . I was a little anxious about what the warrant said, so on a whim, I asked if she could take a quick look at it for me. The conversation went something like this:

Her: You want me to read the whole thing? It's very long.

Me: No, that's okay. I just have a hunch about what's in it that I was hoping you could check out for me.

Her: What would you like me to look for?

Me: Are you familiar with the Cory Maye case?

Her: Oh, yes. I know what happened.

Me: My guess is that you'll find the name of Jaimie Wilson on that warrant, but you won't find the name of Cory Maye. Could you check to satisfy my curiosity before you send me a copy?

Her: Okay. Let's see.... Jaimie....

Me: Wilson...

Her: Yes, now I see his name is on the warrant. Jaimie Wilson.

Me: Now look for Cory Maye.

Her: Silence.

Me: Corey Maye?

Her: Silence.

Me: Is he in there anywhere?

Her: Oh my.

I haven't yet seen the warrant myself. But the clerk confirmed to me over the pohne that Cory Maye's name wasn't anywhere on it. Now have a look at this AP story from January 2004. The article was written after Maye was sentenced to death, more than two years after the shooting. Relevant excerpt:

A Jefferson Davis County man will pay with his life for the 2001 shooting death of a Prentiss police officer.

Cory Maye, 23, showed no reaction when a Marion County jury of eight women and four men found him guilty of capital murder Friday in the death of Officer Ron Jones.

Jones was one of eight officers conducting a search warrant looking for illegal drugs at two apartments on Mary Street in Prentiss on Dec. 26, 2001. Shortly after Jones entered Maye's bedroom, he was shot in the chest, the bullet missing his protective vest.

Emphasis mine. It's certainly possible that the reporter who filed this story screwed up, and simply assumed the warrant covered both sides of the duplex. Or it's possible that Pentiss police misled the media into thinking exactly that. None of the stories written on the Maye case that I've seen so far have pointed out that Maye was not the original subject of the raid.

So let's re-sum what we know so far: Police broke down Maye's door at sometime after 11:30pm at night. He was alone with his daughter. He was not a drug suspect, nor were police authorized by the warrant to enter his home. Maye had no prior criminal record. And police said at the time that no drugs were found in his apartment, though they later say they found "traces" of marijuana and cocaine.

Here's the text of Mississippi's "capital murder" law, for which Maye was convicted and sentenced to death:

"(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman..."

Emphasis mine. . . .

I consider the rest of the posts a must-read, and monitor The Agitator for further developments. The blogosphere needs to get MSM attention sufficiently aroused to require an examination into the case to determine whether this is the miscarriage of justice it facially appears to be. BattlePanda is coordinating the efforts:
When the Instapundit and I both agree that something is wack. You can be sure that it is indeed very, very wack.

UPDATE: As both Glenn Reynolds and Mark Kleiman pointed out, this is such an unambiguous outrage that both the left and the right side of the blogisphere should stand united and work to make this man's story known. On second thought, to the heck with working together. Let's make this a competition. I am going to keep track of right and left wing blogs mentioning the Cory Maye to see which side is doing a better job. Mainly, I'll be using Technorati, but please send me links if you see that I've missed anyone.

There's a ton of links and counting - including the big guns, so we should start to see some buzz on this in the papers. (BTW, does this mean I have to pick a party? Dammit, I enjoy floating around issue-by-issue. But if I have to be in a column, I'll take the transparently-colored Libertarians rather than either a red or a blue label, thanks.)

This info from Stop the Bleating:
The Governor of Mississippi is Haley Barbour. According to the Death Penalty Information Center, he may exercise his clemency power unilaterally; no approval from a board or advisory group is required. It might be time to dust off that power. Gov. Barbour can be reached at 1-877-405-0733, or by mail at: P.O. Box 139, Jackson, Mississippi 39205.

The blogosphere reaction is pretty much unanimous.

Bitch Girls says:
Normally I'm a fan of the death penalty, but this case is so clearly wrong that it makes me sick to my stomach. Each of those jurors who made a decision to convict and kill someone based not on evidence, but on the fact that they didn't like someone's closing argument should live in shame the rest of their lives. In fact, those who are willing to acknowledge that the facts of the case weren't truly the basis for their vote for conviction, I happen to think they have a special place in hell waiting for them.

Atrios responds:
Every now and then the wingnutosphere finds a cause which actually has merit. Too often when they do they spend more time gazing at themselves in self-righteous admiration then actually supporting the cause, but nonetheless when they're right they're right. The case of Cory Maye is indeed a travesty.

Kevin Drum sums it up this way:
I'm basically with Max on the whole Tookie Williams/death penalty thing: I'm not opposed to the death penalty qua death penalty, but I long ago became convinced that it was impossible to administer fairly or reliably and thus should be abandoned. At the same time, if anyone does deserve the death penalty, Tookie Williams is surely it. Regardless of what he's done since, the man was a gangster and a thug and hardly deserving of our sympathy.

Cory Maye, however, is a whole nother story. Radley Balko has the grim details here, and even though something about it continues to niggle at me, it hardly matters. Regardless of whether or not there's more here than meets the eye, there's not much doubt that Maye doesn't deserve to die. It's yet another example of how capriciously the death penalty is applied in the United States, and Maye's case is an almost perfect demonstration of the intersection of race, lousy representation, and likely police misconduct that are so often the hallmarks of capital cases.

I found a MSM story on the case and I was less than impressed by the prosecutor's statement in support of the conviction:
"He was defending himself and my child," said Maye’s girlfriend, Chenteal Longino.

But those claims were not enough to convince District Attorney Buddy McDaniel or the jury.

"Those of us who work around law enforcement officers and their families see the danger that they face every day and the loss those families and the communities feel when they're taken out and when they're murdered and their lives are brought to a close in the performance of duty," said McDaniel.

Maye was found guilty Friday morning at the Marion County courthouse. The jury began deliberating at one o'clock and shortly after six Friday evening the sentence was decided. Maye will get the death penalty.

"Every time they get in the car they don't know whether they're going to come back alive or not, don't know whether they'll be alive at the end of their shift or not. You can't pay them enough, you can't say enough about them. Having been with, having worked closely with them for thirty years, its not something that I can deal with lightly," McDaniel said.

Irrelevant, counselor. The police do put their lives on the line, in general they get absolutely nowhere near the respect they deserve for the incredibly dangerous and difficult job they do every day. I do not question that the shooting of the officer was a horrible tragedy, and should never have happened. But it has little to do with whether Maye was guilty of capital murder. The issue at hand is simple: given the facts and circumstances of the raid, was he acting in self-defense or with premeditated murder in mind - did he know it was an officer when he fired the shot? That is the only relevant issue here, and the court of public opinion at least seems to stand behind the idea that the circumstances are such that reasonable doubt must lie.

In this case, with a gun at hand when an unknown person broke into my bedroom in the middle of the night, I'd pretty much be shooting first and asking questions later. If not, I run the risk of being shot myself or disarmed by the intruder and having my own gun used against me - one of the most common mistakes made by civilians, as I understand it. I also question how workable the concept of "knowing it is a police officer" is in reality. How many stories have women heard of murderers and rapists impersonating an officer? So even if the word "police" is uttered as the door is broken in, in the dark would I be able to tell? These are the questions the State needs to answer, and answer definitively. But when asked about the situation, the best the prosecutor could do is reiterate how dangerous policework is. That's non-responsive. Am we to assume you have nothing better to produce?

BTW: No-announce raids are flipping dangerous for everybody involved. I understand the reason behind them, but I sometimes wonder if it's worth the risk to the officers, as presumably bona fide drug dealers may be even more inclined to pull a trigger, particularly if hopped up on drugs. It's awful that this officer got killed for a simple mistake. I wish we could figure out something better. But of course, if you knock first and you're right about the subject being a drug dealer, the next sound you hear is the toilet flushing. I don't see a viable solution.