A Stitch in Haste

So a college student decides, as college students often do, to be an idiot:

A college student whose friend was being questioned in a hit and run found himself charged with assaulting an officer with a curious choice of weapons: M&Ms.

Sean McGuire was arrested early Sunday at a convenience store after Drake University security guards noticed the colored candies falling on the ground around the officer. When the officer turned around, an M&M hit his shoulder, according to a police report.

McGuire claimed he threw the candy because he was "sticking up for his friend," who apparently was the man suspected in the accident, the report states.

So a libertarian decides, as libertarians often do, to complain:

Okay, throwing M&Ms at anyone is uncalled for. Throwing them at a cop is just stupid. But, this college student winding up in jail, and having to post a $1,000 bond for throwing candy? What was this all about? Was it really about "assault," or was it a case of "you must respect my authoritah!"

So I decide, as I often do, to leave a comment:

Why does it have to be a question of "respect my authoritah" rather than one of not being a law-breaking jerk by throwing stuff at people?

Last time I checked, respecting people's space and bodily integrity was one of the higher-ranking libertarian tenets. If that's changed, then I didn't get the memo.

I know many libertarians like to pretend that all police are unstable maniacs just waiting for an excuse to don their jackboots and charge up their tasers. And a few are.

But sometimes people simply break the law — sometimes quite stupidly, immaturely or obnoxiously — and if they get caught, they get caught.

Sympathy is a scarce resource, and I don't squander it on fools.

Speaking of squandering, I also note that this is a terrible waste of perfectly good M&Ms. Next time, throw beef jerky or some other inedible product.

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For the uninitiated:

Much cyber-ink is being spilled on the question of John Yoo's continued employment at U.C. Berkeley's law school, Boalt Hall; I first noted it in passing here.

Boalt's dean, meanwhile, issued a lengthy statement on Yoo that was half "Ford pardoning Nixon," half "Pilate washing his hands."

(Not only is Yoo tenured, but Boalt, as part of a public university -- i.e., the government -- is required to extend certain due process rights above and beyond what a tenured professor at a private law school would enjoy.)

Here was my brief foray into the discussion:

The dean fails to address the underlying question: Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?

Reasonable minds may disagree on that question, but no reasonable person is entitled to assert that "tenure," "due process" or "the First Amendment" have anything to do with the answer.

Some commenters misinterpreted that to mean that I advocate stripping Yoo of his legal protections. I of course neither said nor advocated anything of the kind. My point was that the question of "Yoo at Boalt" is really two questions: (1) should he be teaching law school students, and (2) if not, and only if not, then can he be removed? I find Question (1) to be infinitely more important than Question (2), but that is not the same as asserting that Question (2) can be completely ignored.

The most comprehensive response I've seen to Boalt's dean, Chris Edley, comes from Scott Horton:

I agree with Dean Edley on two key points. First, John Yoo is entitled to his legal views, however eccentric, radical and harmful to our democracy. The academic community benefits from the presence of the philosophical outlier. It sharpens debate, and can furnish us with a reminder of the fundamental values which the outlier disparages.

That argument only goes so far. There is a line past which "philosophical outlier" becomes "dangerous nutjob." An advocate of leeching has no business on a medical school faculty, an astrologer has no business on an astrophysics faculty, an alchemist has no business on a chemistry faculty -- their presence does not "sharpen debate," it just wastes resources, embarrasses the institution and achieves the exact opposite of disseminating "knowledge" -- properly defined. (What part of "higher" in "higher education" could possibly extend to leeching or astrology?)

Is Yoo the jurisprudential equivalent of an alchemist? Perhaps reasonable minds can disagree, but that is simply not the same thing as suggesting that the question is irrelevant. It is not.

Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be "clean." He declined to make any of the changes requested.

Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe.

Telling the client what he wants to hear, instead of what he needs to hear, is the fastest way to a "C" in a first-year legal writing class. Deliberately failing to cite contrary authority is the fastest way to an "F." Advocating the commission of a crime -- including a war crime -- is the fastest way to disbarment.

So I ask again: "Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?"

The torture memos were not an episode of The Tudors, and John Yoo was not Cardinal Wolsey -- saying whatever needed to be said, no matter how preposterous, to try to secure Henry VIII his divorce from Catherine of Aragon -- in clear defiance of the law, common sense and common decency. This is not the Sixteenth Century, no matter how desperately the "new Divine Right" advocates (i.e., the "unitary executive" crowd) may wish it were.

I'm not sure why this would be a controversial statement:

"You can murder anybody in the country and still not violate federal law, if you do it right."

Thus (allegedly) spake Justice Scalia recently.

Stated differently, has the phrase "don't make a federal case out of it" ceased to have the clear colloquial meaning it once did? Note that Scalia did not say, "You can murder anybody in the country and still not violate the law, if you do it right." Or, "You can murder anybody in the country and get away with it, if you do it right." He just highlighted the basic legal truth that not every crime is (or ought be) a federal crime.

Just as there would be, in a properly crafted society, federal public goods that are paid for with federal tax dollars, state public goods paid for with state tax dollars, and local public goods paid for with local tax dollars — with clear and inviolable demarcations among them — so too would an ideal criminal code limit federal crimes to truly federal (i.e., multistate) offenses and leave state/local criminal justice to state/local governments.

The fact that we even need to discuss or reiterate such elementary principles as "not everything is a federal matter" is rather sad.

(Via PolySigh.)

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Also be sure to contrast this (innocuous) Scalia proposition with Ron Paul's (hardly innocuous) brand of anti-libertarian "federalism," which holds not only that "certain things should not be a federal crime" (correct), but also that "anything can be a state or local crime" (i.e., if the local majoritarian mob decrees it as such). Anything — from having gay sex to drinking raw milk — can be properly criminalized in the Paulbearers' utopia — just not by Congress.

The fact that we even need to discuss or reiterate such elementary principles as "Ron Paul is not a libertarian" is even sadder.

In my last post on jury nullification, I noted the following:

[I]f, through no subterfuge of my own (i.e., I did not lie my way onto the jury), I suddenly found myself serving as a juror and witnessing a manifestly unjust prosecution (which would more likely involve wrongful conduct by the prosecutor or judge than a "bad law"), then I might very well vote to nullify the trial. But that is an altogether different question from traditional jury nullification of a law.

This fact pattern, in reverse, is something close to what I had in mind:

Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided -- chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long.

It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.

This is all very wink-wink legal theater by Weinstein, who is known for making rules up as he goes along. Just as modern juries are only supposed to decide questions of fact and not to second-guess the propriety of the law itself, so too are they not supposed to consider the potential penalties a criminal defendant would face. The potential sentence a defendant may face is also part of the law and not "evidence" to be weighed by the jury.

Weinstein knows this full well -- every lawyer does. But in order to grab a headline he self-righteously decides to declare a mistrial based on a perfectly incorrect reading of the law: that every jury should always know what potential sentence a defendant faces -- or at least the most onerous sentences.

Weinstein's unprofessional antics were of course pro-defendant. But judicial or prosecutorial misconduct can also be anti-defendant. And in that instance, where I did not lie my way onto a jury, was attempting to perform my function in good faith, and was suddenly blindsided by an egregious miscarriage of justice, then -- and only then -- might I indeed choose to nullify the trial. Unlike an unjust law -- of which the defendant had or ought to have had fair knowledge beforehand -- an unjust trial is an abomination that one cannot anticipate or incorporate into one's decision-making calculus. It is outside the system of justice in a way that an unjust law is not. It is a different, and more malignant, kind of governmental abuse.

When one party breaches a contract, the other party is typically not required to continue performing his end of the bargain. The first breach destroys the contract itself and therefore all subsequent duties under the contract. To the extent that a trial is a "judicial compact," and given a precedent breach of that compact by the judge or prosecutor, the duty of the juror to honor the compact terminates, and no juror has any ethical obligation to fulfill any original duty under the original judicial compact.

The case is U.S. v. Polizzi, No. 06-CR-22 (E.D.N.Y, April 1, 2008) (PDF - 288 pages)

(Via Sentencing Law & Policy.)

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Meanwhile:

In a legal victory for the tobacco industry, a federal appeals court on Thursday threw out an $800 billion class-action lawsuit on behalf of smokers who said they were misled that light cigarettes were safer than regular ones.

Plaintiffs' lawyers had wanted to represent potentially millions of people across the country who had smoked light cigarettes, but the court found that it was impossible to tell why smokers chose light cigarettes, so the group could not be treated as a class. Instead, smokers will have to sue individually.

"Individualized proof is needed to overcome the possibility that a member of the purported class purchased lights for some other reason than the belief that lights were a healthier alternative," the ruling said.

Of course, every second-year law student knows that "commonality" is a requirement for certification of a class in a federal lawsuit.

Guess who didn't know it -- or didn't care:

The court decision was a setback for lawyers who thought that the ruling approving the class, issued by Federal District Judge Jack B. Weinstein in Brooklyn in September 2006, could have opened a new avenue for litigation against the tobacco industry, exposing cigarette companies to potentially large damages.

I don't believe in "activist judges." But there certainly is such a thing as a rogue judge. Better to be correct in two pages than wrong in 288 pages. Better to apply uncomplicated and well-settled principles of federal civil procedure correctly than to grab a gratuitous headline at the expense of an industry that sells a legal product.

At least the Second Circuit knows when it's proper to nullify.

It makes perfect sense to two groups of people — professional journalists* and bloodthirsty dictators:

At around 2 p.m. yesterday, a Zimbabwean police unit raided the York Lodge, a Harare hotel being used by several foreign reporters covering the elections. Five journalists were arrested. Three of them were later released, but two are still being held at Harare police headquarters. One of them is New York Times correspondent Barry Bearak.

Their lawyer, Beatrice Mtetwa, said they would be charged ... with working without accreditation in violation of a 2002 press law known as the Access to Information and Protection of Privacy Act, under which journalists can be sentenced to up to two years in prison for working without a permit from Media and Information Commission (MIC).

Look on the bright side: Zimbabwe's barbarian censorship laws (two years in jail) are better than China's barbarian censorship laws (3.5 years).

(*One example here.)

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Meanwhile:

The inner circle of President Robert G. Mugabe of Zimbabwe met Friday to decide how to handle the outcome of elections that the opposition contends the president lost.

The options that confront the senior leadership of the ruling party include having the president step down, holding a runoff vote later this month or prolonging their control over the country, regardless of the outcome national elections last Saturday.
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Before the election, Mr. Mugabe repeatedly said he would not allow the opposition to take power, and since then his aides have said that he "is going to fight to the last."

The first presidential inauguration I remember watching was Reagan's in 1981:

The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle.

Mr. President, I want our fellow citizens to know how much you did to carry on this tradition. By your gracious cooperation in the transition process, you have shown a watching world that we are a united people pledged to maintaining a political system which guarantees individual liberty to a greater degree than any other, and I thank you and your people for all your help in maintaining the continuity which is the bulwark of our Republic.

Translation: "Carter, you really sucked. In fact, you sucked so bad that the nicest thing I can say about you is that you at least didn't try to stage a coup when you lost so pathetically. Thanks for that — and don't let the door hit you on the way out." I remember thinking, in my 14-year-old way, "This guy's supposedly a great orator? For saying stuff like that?"

In retrospect, however, it really is the simplest things — like "we can throw the bums out" and "you don't need a license to write" — that make the United States so obviously superior to so much of the rest of the world. And here I am today, not 14 but 41, blogospherically screaming from the rooftop essentially the same simple message, because it so desperately needs to be screamed:

We are a great nation for a reason. To the extent we forget the reason, we cease to be great.

Yesterday I wrote:

Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

Which got me to thinking: If the president's Article II commander-in-chief power is unitary and plenary, then can the president unilaterally bring back the draft? (Recall that at least one presidential candidate has warned that a draft might be necessary.)

One would think, of course, that if the president cannot unilaterally seize steel mills for no other reason than "there's a war going on" then he certainly couldn't conscript people for no other reason than "there's a war going on," right?

However, since the famous Jackson concurrence in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), does not appear to be cited anywhere in the recently released "torture memo," such "simplistic" or "archaic" reasoning might not apply in the Yoo-based (as opposed to the sanity-based) jurisprudential community.

Just wondering.

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The leading source for torture memo analysis is undoubtedly Balkinization's Marty Lederman. The alpha-and-omega observation:

The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis. (Recall Jack Goldsmith writing about Pat Philbin presenting him with a "short stack" of egregious memos.) Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.

Sounds about right — especially the "October 2003 memo" referenced in Footnote 10 suggesting that domestic military operations are summarily exempt from Fourth Amendment limitations. That should be a fun read.

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For Discussion: Some are pushing for U.C. Berkeley's Boalt School of Law to dismiss Yoo from its faculty, based on academic incompetence (i.e., no one who is so wrong about such basic constitutional issues should be allowed anywhere near law school students). On the other hand: "tenure." Thoughts?

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
--Article I, Section 1

The executive Power shall be vested in a President of the United States of America.
--Article II, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
--Article III, Section 1

Article II, Section 1 ... contrasts with the specific enumeration of the powers -- those "herein" -- granted to Congress in Article I.
--Memorandum for William J. Haynes II (a/k/a the "Torture Memo")

It has long been noted by the sanity-based legal community that John Yoo's "unitary executive" theory of Article II's war power is facially absurd for the simple reason that there are clear references to the military in the enumerated legislative powers of Article I, Section 8. Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

In John Yoo's now-declassified "torture memo," he asserts the following:

In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy. (Page 5)

Really? Consider the following hypotheticals in a pre- or non-9/11 scenario:

1. Congress, as part of a routine defense appropriation, authorizes the funding, commissioning and deployment of a fleet of naval destroyers for the specific and sole purpose of patrolling the Gulf of Mexico to protect U.S. oil rigs in that region. The legislation is unambiguous: the Navy ships are only for the Gulf of Mexico and only there to defend oil platforms. Can the president, under a purported "unitary and plenary" commander-in-chief power, order those destroyers to be redeployed to drug interdiction without a revised Congressional authorization? How would that not be an incursion upon Congress' "unitary" appropriation origination function?

2. Could the president then constitutionally defy an explicit bill (assume a veto and override) reiterating the original legislation after the redeployment? How would that not be an incursion upon Congress' "unitary" veto override function?

3. Now assume that a non-nation-state Islamic fundamentalist terrorist organization, in a coordinated attack, destroys the Golden Gate and George Washington Bridges. Could the president, without Congressional authorization, permanently redeploy those destroyers to New York and San Francisco, despite the original, unambiguous dictate by Congress that the destroyers not leave the Gulf of Mexico? (Ignore temporary redeployments under the War Powers Act.)

4. The nation subsequently learns that the Islamic terrorist organization operates mainly from bases in Hypothestan. Subsequent to either a traditional declaration of war or some analogue to the AUMF, President Sally Kern deploys ground forces to Hypothestan to fight the Islamic terrorists -- and gays (who are, recall, a greater threat to America than Islamic terrorists). Congress did not authorize the use of military force against gays, and indeed expressly forbids it in subsequent legislation comparable to Hypothetical #2. Can Commander-in-Chief Kern disregard the "incursion" of Congress upon her "unitary and plenary" commander-in-chief power under Article II, to "keep America safe"?

To the extent that these hypotheticals are absurd, they are nevertheless robust given how absurd the original thesis of the unitary executive crowd itself is. These people actually believe that the president is, or ought be, a literal dictator in a time of war -- disregarding the pesky fact that the War on Terror will last perhaps forever.

Whatever those three "Section 1" pronouncements about "powers" were intended to mean -- it surely wasn't that.

The Fourth Amendment has become a lost highway:

After verifying the tire was not in fact defective, the officer detained the driver, because among other things, the driver had a religious statue on his dashboard. The officer stated that in his experience and opinion, religious symbols are used to dispel suspicion of wrongdoing and are usually indicative of drug activity.

So now having a plastic dashboard Jesus qualifies as "fits the profile"?

Fortunately, the defendant had not Jesus but an "activist" judge metaphorically riding alongside him:

The Court finds that religious symbols cannot be used to generate reasonable suspicion of drug dealing or criminality. To do so, violates religious rights secured by the First Amendment and consequently, the Fourth Amendment. After removing the impermissible element of the religious symbol from the officer's reasonable suspicion calculation, the Court finds the remaining factors do not rise to the level of warranting extending the detention.

Need another gratuitous religious reference? Try "fruit of the poisonous tree" --

Because reasonable suspicion did not exist to extend the stop, once the officer realized a violation had not been committed, the purpose of the stop was fulfilled, and anything thereafter controverted Defendant's Fourth Amendment rights. Therefore, the Court grants Defendant's Motion to Suppress.

I'm reminded of this infamous list of self-contradicting "drug courier" descriptors used to justify airport detentions:

--Arrive late at night?

--Arrive early in the morning?

--One of first to deplane?

--One of last to deplane?

--Deplane in the middle?

--Use a one-way ticket?

--Use a round-trip ticket?

--Carry brand-new luggage?

--Carry a small gym bag?

--Travel alone?

--Travel with a companion?

--Act too nervous?

--Act too calm?

--Wear expensive clothing and gold jewelry?

--Wear black corduroys, white pullover shirt, loafers without socks?

--Wear dark slacks, work shirt, and hat?

--Wear brown leather aviator jacket, gold chain, hair down to shoulders?

--Wear loose-fitting sweatshirt and denim jacket?

--Walk rapidly through airport?

--Walk aimlessly through airport?

--Fly in to Washington National Airport on the LaGuardia Shuttle?

--Have a white handkerchief in your hand?

Eventually some intrepid law school student will compile a similar list of suspicious indicia used for automobile stops, complete with "had a plastic dashboard Jesus" and "had no plastic dashboard Jesus."

The case is United States v. Magana, 2008 U.S. Dist. LEXIS 24859 (W.D. Tex. March 13, 2008).

WindyPundit weighs in:

Unless you are truly devoid of moral reasoning, there must be some level of unjustness at which you will abandon the law to avoid complicity in unconscionable evil.

One of the things I wanted to add to my podcast on jury nullification, but didn't have time for, was to note that if, through no subterfuge of my own (i.e., I did not lie my way onto the jury), I suddenly found myself serving as a juror and witnessing a manifestly unjust prosecution (which would more likely involve wrongful conduct by the prosecutor or judge than a "bad law"), then I might very well vote to nullify the trial. But that is an altogether different question from traditional jury nullification of a law.

But I found myself unable to devise a fact pattern where I could end up on a jury, after voir dire by competent lawyers and judges, in which a law I oppose to the point of wanting to nullify it was at issue. They would find me out before the trial started -- as is their prerogative, indeed their solemn duty.

Then again, if I could devise such a "reluctant juror" fact pattern, I'd be John Grisham or Reginald Rose.

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Meanwhile, no third solution has a comprehensive post in response to my nullification podcast. While he makes some perfectly reasonable points, I don't think he adequately addresses (or, if you prefer, he underweights) two key issues:

1. That libertarians do not have a monopoly on nullification, and therefore the maneuver is not intrinsically libertarian. Just as a gun can be used either for libertarian or anti-libertarian purposes, so too can nullification. It is therefore invalid for libertarians to claim a unique moral proprietorship of the act, as they so often do.

2. The simple truth remains that lying your way onto a jury is not the moral high ground. "The ends justify the means" was, last time I checked, simply not a core libertarian premise -- quite the opposite, in fact.

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Whether lying your way onto a jury can also constitute perjury is an utterly ancillary, jurisdiction-specific question that I feel no need to address. As for the question of whether advocating jury nullification can be a criminal act: of course not -- See Brandenburg v. Ohio, 395 U.S. 444 (1969).

Jack Balkin links, not unreasonably, the Spitzer scandal to the War on Terror:

These events offer a window into a much larger phenomenon, the National Surveillance State, in which the state increasingly identifies and solves problems of governance through the collection, collation and analysis of information. Governments have always used information, but today's techniques are made more powerful and more prevalent by lower costs of computing and data storage.
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If computing power increases enough, there is no reason why governments might not lower the threshold for reporting of suspicious transactions, or, indeed, require that every transaction over 100 dollars be reported. All this information could later be sifted through by data mining programs, in order to spot patterns of suspicious activity. The only limit is the technology and the manpower that law enforcement is willing to devote to analysis of financial transactions.

Of course, there ought to be another "limit," namely a rational basis for collecting such data.

It's one thing to suggest that there is a reasonable inference that a transaction involving over $10,000 in currency is likely, perhaps almost certain, to involve illegal activity, and that therefore the government has a rational basis to demand disclosure of all such transactions. That's not the libertarian conclusion, but it's not a facially absurd premise.

Demanding disclosure of all currency transactions involving over $100, however, is facially absurd. Demanding disclosure of all transactions of any kind over $100 would leapfrog over "facially absurd" and straight into Orwell. A terrorist can't bring down a skyscraper with one $100 bill or with one prepaid $100 phone card. The fact that the government can now technologically and economically perform such micro-surveillance still does not mean that it can constitutionally perform it. "You don't want another 9/11, do you?" is simply not enough to justify turning over every ATM, credit card, debit card and EFT transaction, no matter how small, to the government.

Even conceding (which libertarians ought never do anyway) that some (indeed most) laws are subject to mere rational basis review does not mean that a law that fails rational basis review (i.e., an irrational law) should not be decried — and judicially invalidated — as such.

"If they don't (comply), additional force is going to be used. Taser is an available option and if they don't comply at that point, then the trigger can be pulled again, and that's what happened."
--Sheriff Greg White, Cole County, Missouri

The backstory:

A Cole County deputy tasered an angry parent twice Thursday morning when he refused to leave a middle school, Sheriff Greg White said.

Ricky Campbell, 43, was arrested on suspicion of trespassing, peace disturbance and resisting arrest.

At about 8:10 a.m., Cole County School Resource Officer Joe Essen received a call regarding an angry parent at Russellville Middle School.

Essen attempted to arrest Campbell when he refused to leave, but he resisted, White said.

The deputy then deployed his Taser.

As I have repeatedly blogged, this attitude by law enforcement is both inconsistent with the original "sales pitch" of the Taser as a substitute for deadly force (i.e., if it was not appropriate for the deputy to shoot the parent, then it was also not appropriate to tase him), and also unreasonable as an independent question of law (since police force must be proportional to the circumstances).

If the suspect or arrestee is not a direct physical threat to others (or himself), then the use of a violent, aggressive and dangerous weapon such a Taser is per se excessive. "Failure to comply" is simply not enough -- try calling for backup instead.

(Via Danger Room.)

Technorati Tag: Taser.

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Elsewhere in "law enforcement abuse" news:

--Jared Massey, the Utah motorist who was wrongfully Tasered by a state trooper, and who rightfully posted the incident on YouTube, has won a $40,000 settlement in his civil rights lawsuit against the state. Previous post here.

--A "kids in cuffs" incident, and lawsuit, in New York City:

Lawyer Scott Agulnick said Jaden Diaz and Christopher Brito -- both then 4 and students at CS 211, The Bilingual School -- told their parents that a substitute teacher took them and another boy to an empty classroom on Nov. 17, 2006, and left them there alone.

Soon, the lawyer said, the school-safety officer entered the room, cuffed the boys' wrists -- and further terrified them by telling they that they would never see their parents again.
...
"He was police," Jaden said. "He said, 'You know what happens when you don't go to sleep in there? ... 'When you go to jail, you're not going to have no fun, no TV, no toys.'"

Why not just tase the kids next time? After all, they "failed to comply," right? (Previous "kids in cuffs" posts here.)

Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
--Smith v. Maryland (Stewart, J., dissenting)

Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.
--Smith v. Maryland (Marshall, J., dissenting)

The Wall Street Journal has a feature story today on the federal government's increasing use of data mining (i.e., gathering random information about vast numbers of citizens, without any individualized suspicion of wrongdoing) in the War or Terror:

According to current and former intelligence officials, the [NSA] now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.
...
A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

The article mentions a famous — and atrocious — Supreme Court case from 1979, Smith v. Maryland*. The key holding in that case was that, since a person must "tell the phone company what number she is dialing," she cannot have any reasonable expectation of privacy in that phone number, and that the government can therefore demand that phone number from the phone company without a warrant based upon probable cause.

Stated differently, the Court held, preposterously, that there is no difference between AT&T knowing whom you're calling and the government knowing it.

(This idea that "your utility bills belong to the utility and not to you" is, incidentally, also the basis for "heat lamp warrants": the use by drug warriors of unusually high electricity bills — records obtained without a warrant, of course — as evidence to bring to a judge to obtain a search warrant for the premises.)

Beyond the facial (i.e., telephonic) absurdity of Smith v. Maryland at the time, are the ominous new implications it has for modern electronic communications. To posit that the government can obtain your phone logs is bad enough, but that still does not mean that the government can listen in on your phone calls without a warrant (ignoring for the moment unconstitutional violations of FISA).

But the information contained in, e.g., an email header often contains information that a phone number does not: the name (not just the email address) of the recipient, the subject matter, whether it is a reply or forwarded email, the size and file names of attachments, etc. For the government to simply declare, "We can access that header without a warrant — see Smith v. Maryland," is insolent obliviousness.

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Equally insolent is the notion that "driftnet" surveillance — "get everyone's data and let the computers sort it out" — is somehow not problematic. This is the asinine proposition of, among others, Richard Posner: that "a computer can't violate your rights."

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More thoughts from Threat Level, Deep Links, Concurring Opinions.

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*Smith v. Maryland, 442 U.S. 735 (1979)