The Volokh Conspiracy

More on the Mainstream Media: Following this post, several readers have asked me where the press got the idea that the recent court decision in New York invalidated a major part of the Patriot Act. I assume the main source is this ACLU press release, which begins:

In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional

FOR IMMEDIATE RELEASE
  NEW YORK - Saying that "democracy abhors undue secrecy," a federal court today struck down an entire Patriot Act provision that gives the government unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The court also found a broad gag provision in the law to be an "unconstitutional prior restraint" on free speech.
  "This is a landmark victory against the Ashcroft Justice Department's misguided attempt to intrude into the lives of innocent Americans in the name of national security," said ACLU Executive Director Anthony D. Romero. "Even now, some in Congress are trying to pass additional intrusive law enforcement powers. This decision should put a halt to those efforts."
  The American Civil Liberties Union and the New York Civil Liberties Union, which brought a challenge to the law earlier this year, hailed the ruling as a signal blow to the current administration's efforts to expand government surveillance powers in violation of the Constitution.
  "Today's ruling is a wholesale refutation of excessive government secrecy and unchecked executive power," said ACLU attorney Jameel Jaffer. "As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place."
  The ruling is the first to strike down any of the vast new surveillance powers authorized by the Patriot Act.

I can understand the difficulties that long and complicated legal opinions raise for many reporters. Imagine you are a reporter who covers legal issues and terrorism. It's late on a Wednesday afternoon, and a court hands down a 122-page legal opinion. You have just a few hours to write a story on it. The Justice Department declines comment, so that's no help. But then the ACLU gives you a nice and easy-to-understand press release that tells you what the opinion does, what it means, and offers a few great soundbites. With a deadline just a few hours away, what are you going to do — wade through 122 pages of hypertechnical legalese yourself, or base your story at least in large part on the ACLU's press release?

UPDATE: Senator John Cornyn of Texas is on the case. As I understand it, he held a press conference on this earlier today and mentioned my earlier blog post.

GO ARNIE:

Congratulations to Governor Arnold for vetoing a counterproductive piece of legislation in California that would have imposed new disclosure requirements on pharmaceutical benefits managers. As the FTC noted in an analysis of the bill (from the press release):

The staff analysis finds that AB 1960 is likely to have an adverse effect on consumers in two ways. First, mandated disclosures may actually increase prices. "Whenever PBMs have a credible threat to exclude pharmaceutical manufacturers from their formulary, manufacturers have a powerful incentive to bid aggressively. . . Whenever competitors know the actual prices charged by other firms, tacit collusion - and thus higher prices - may be more likely. It is for this reason that California law requires the state to use sealed bids to procure desired goods and services whose value exceeds $25,000," the FTC's letter states.

Second, the bill has a number of provisions that are likely to make drug substitution more expensive. PBMs frequently use drug substitution to reduce costs and promote competition between branded drug makers. Generic substitution is encouraged by the FDA and widely recognized as safe, and California already requires prescriber approval for the substitution of one branded drug for another. Because current safeguards appear sufficient to protect consumers, AB 1960 is likely to increase costs to consumers without providing any additional benefits.

The Governor's veto message points to the FTC analysis as influencing his decision to veto it.

Supreme Court to Hear Medical Cannabis Case on November 29th: Some may have noticed that I have been blogging a lot less of late. There are probably several reasons for this, among which is the work I have been doing on Ashcroft v. Raich, the medical cannabis case now before the Supreme Court. Our brief is due in 2 weeks and, this weekend, we made a major breakthrough in our Commerce Clause argument. (I cannot disclose it now, of course. Wouldn't be prudent.)

Yesterday the clerk announced that the Court will hear argument in the case on Monday, November 29th. So expect blogging by me to be intermittent at best until then.

Welcome Jim Lindgren! A belated welcome to my friend Jim Lindgren of Northwestern. Jim and I were once on the same faculty at Chicago-Kent College of Law, and it is good to be colleagues again. I am sure the same attention to factual detail that led to Jim's exposure of the fraudulent gun ownership data of Michael Bellisiles along with his boundless enthusiasm will make Jim a truly excellent blogger. I look forward to reading his future posts.

Update:The immediate response of one reader: "Oh, THAT Jim Lindgren. I knew his name sounded familiar. Excellent!" Indeed it is.

Mainstream Media Ruled Unconstitutional: No, not really. But is it too much to ask that when the mainstream media reports on court decisions that they properly identify the law that is struck down and the Administration that is rebuked? Apparently it is, at least if the Thursday morning papers are any guide.

As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration's overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court's decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court's opinion for the details of the statute's history.)

But of course you don't get that from the mainstream press, which likes to report everything related to terorrism as if it were the Patriot Act. Here is the New York Times:

Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data
By JULIA PRESTON
A federal judge struck down an important surveillance provision of the antiterrorism legislation known as the USA Patriot Act yesterday, ruling that it broadly violated the Constitution by giving the federal authorities unchecked powers to obtain private information. The ruling, by Judge Victor Marrero of Federal District Court in Manhattan, was the first to uphold a challenge to the surveillance sections of the act, which was adopted in October 2001 to expand the powers of the federal government in national security investigations. The ruling invalidated one piece of the law, finding that it violated both free speech guarantees and protection against unreasonable searches. It is thought likely to provide fuel for other court challenges.

The Washington Post goes out of its way to construe the decision as a rebuke to the Bush Administration:

Key Part of Patriot Act Ruled Unconstitutional
By Dan Eggen
A federal judge in New York ruled yesterday that a key component of the USA Patriot Act is unconstitutional because it allows the FBI to demand information from Internet service providers without judicial oversight or public review. The ruling is one of several judicial blows to the Bush administration's anti-terrorism policies in recent months. . . . Marrero's ruling is the latest setback in the courts for the Bush administration's terrorism policies, which civil libertarians and some lawmakers consider overly broad. The Supreme Court ruled in June that detainees held as "enemy combatants" may challenge their confinement through the U.S. courts. Two rulings by federal courts in California have also struck down portions of statutes making it a crime to provide "material support" to terrorists. . . . But the ACLU argues that Marrero's ruling is a warning to the government about some of its tactics in the war on terrorism. "This is a wholesale refutation of the administration's use of excessive secrecy and unbridled power under the Patriot Act," said Ann Beeson, an ACLU lawyer. . . .

Not to be outdone, the Associated Press offers a similar story (could it be that they are all reading from the same script?):

Judge blocks part of Patriot Act
NEW YORK (AP) — Declaring that personal security is as important as national security, a judge Wednesday blocked the government from conducting secret, unchallengeable searches of Internet and telephone records as part of its fight against terrorism. The American Civil Liberties Union called the ruling a "landmark victory" against the Justice Department's post-September 11 law enforcement powers.

Of course, many readers may consider the identity of the law at issue as a minor point; after all, the important thing is that the law was struck down, not whether it was a 1986 law or a 2001 law that was at issue. But I think the label matters, actually, and that it matters a lot: the mainstream media has created a monster called the Patriot Act that has millions of Americans terribly worried about the government in general and the Bush Administration in particular. The early reports are trying to view this ruling as a rebuke to antiterrorism strategies of the Bush Administration, but that's just not accurate: if anything, it is a rebuke to the antiterrorism strategies of the Reagan Administration.

Finally, if I'm missing something, please let me know; there's always a risk when I blog this late at night that it's me missing the obvious, not the Washington Post, New York Times, and Associated Press.

Interesting Interview With the Principals in CBS Draft E-mail Hoax.

--INDC Journal has interesting interviews with the reporter and producer of the CBS story spreading the email selective service hoax. It is surprising that they can't see that spreading a hoax that has been debunked might be more than a tad irresponsible.

MoveOn is pressing CBS to run yet a third questionable story. As if CBS isn't in enough hot water already after running two stories in one month based on phony documents, MoveOn.org has started a lobbying campaign to get CBS to run yet a third false story (hat-tip Kerry Spot). This one, on the attempts by Iraq to get Yellowcake uranium in Africa, was bumped from its original broadcast slot by the Bush Texas Guard story.

Here is MoveOn's call to arms:

Date: Monday, September 27 From: Peter Schurman, MoveOn.org Subject: CBS censoring the truth about Bush's case for war

Dear MoveOn member,

President Bush based his famous and false claim that Iraq was seeking uranium from Niger on a set of crudely forged documents. For the last two years, no one has uncovered who falsified these documents, which lie at the heart of Bush's case for war.

Now, CBS' 60 Minutes program has uncovered new and important revelations about the Bush administration's reliance on the documents. But, in an unprecedented and astonishing move, CBS bumped the report back until after the election, saying it would be "inappropriate" to air the piece when it might interfere with the political season.

It's outrageous that a major TV news outlet would censor an important piece of news for political reasons. Especially since this report has met CBS' standards for accuracy — it's true. One can only assume that CBS is buckling under pressure from the right — and that's just plain wrong.

Call CBS and its parent company, Viacom, now, at: . . . .

The reason that CBS publicly gave for further postponing the story (that it was too close to the election) was indeed inappropriate on its face (unless of course CBS in the 2 months before the election would run investigative stories only if they favored one candidate).

But there are other better reasons for CBS not running the story. First, it is false. Note that Moveon claims:

"President Bush based his famous and false claim that Iraq was seeking uranium from Niger on a set of crudely forged documents."

It would be hard to write a sentence with more errors in it, given what many have revealed in recent months (examples here and here). First, Bush did not mention Niger, but rather Africa. Second, Bush stated what British intelligence found, an analysis that has never been revoked and has recently been confirmed. Third, the administration did not even have possession of the forged documents when Bush made his statement, and it recognized the documents as doubtful almost immediately after they did get their hands on them. Last, one of the intelligence reports released this summer confirmed Bush's original claim about British intelligence and showed that Joseph Wilson had not been truthful about what he had told the CIA at the time--that Wilson himself had reported probable Iraqi attempts to get Yellowcake.

Moveon's second sentence is similarly ridiculous:

"For the last two years, no one has uncovered who falsified these documents, which lie at the heart of Bush's case for war."

Not only were the documents NOT part of Bush's case for war, the Italian con man who was caught forging the documents has confessed that he created them for French intelligence.

If CBS had run this story, they would have shot themselves in the foot yet again--pushing another false tale that happens to hurt the President.

UPDATE: I was just thinking: how does MoveOn know what CBS was going to say in their report? How do they know that CBS wouldn't have focused on French attempts to undercut the war, the Bush administration's quick skepticism about the documents, the exposure and public discrediting of Joseph Wilson this summer, and the vindication of Bush's claim, which so many critics still don't want to face? Hmmm . . .

2d UPDATE: Wizbang explains how MoveOn knew about what CBS had said in a story that hadn't run yet. It appears that CBS gave a tape of their half-hour story (before its scheduled broadcast) to organizations that share CBS's orientation, such as Salon. Salon has a long, credulous description of CBS's story, with direct quotes (nonmembers are subjected to a long ad to get a free day pass to Salon Premium).

People have been wondering why CBS, who was taken in by Joe Wilson earlier, hasn't recanted their earlier embrace of his now discredited claims. Rather than admit their earlier mistake on Wilson and apologize, CBS had planned to use him again in the postponed story, allowing Wilson to make the same false claims that left him so discredited that the Kerry campaign removed their Wilson page.

It's time for bloggers who know more about the Niger story than I do to fact-check and document the false claims that CBS planned to run (many of which are in the Salon story). If these three stories (memogate, the email selective service hoax, and the Niger yellowcake) are representative of what CBS can do in just one month, CBS management must stop pretending that politics doesn't matter. They should integrate their newsroom politically. And if they are going to team up to do a story with a blogger, perhaps they might next time team up with a blogger who might fill in their blindspots, rather than one who would magnify them.

3d UPDATE: A reader points out that it is incorrect to say that an Italian suspect has confessed to forging the documents. Rather, an Italian who conveyed the documents has "confessed" to procuring them (claiming that he thought them genuine) and to working for French intelligence (see here and here) in the matter.

District Court Invalidates Part of Electronic Communications Privacy Act: District Judge Victor Marrero of the Southern District of New York issued a 122 page opinion in Doe v. Ashcroft yesterday invalidating 18 U.S.C. 2709, the "national security letter" provision of the Electronic Communications Privacy Act, on Fourth and First Amendment grounds. This is big news: it might require heavily increased reliance on the controversial Section 215 powers of the Patriot Act, and creates considerable constitutional uncertainty as Congress heads into debates on revisiting the Patriot Act in 2005. To make matters more interesting, the Court's Fourth Amendment analysis is rambling, self-indulgent, and rather odd — all of which will set up an interesting appeal in the Second Circuit. One warning, though: I'm a Fourth Amendment specialist, not a First Amendment scholar, so I am going to blog on the former and not the latter. I'll leave the First Amendment part for Eugene in case he feels like blogging on it.

  First, a bit of introduction. Section 2709 allows the FBI to order ISPs to disclose certain transactional information about their subscribers in terrorism investigations. For example, imagine that the FBI has reason to believe that a suspected member of Al-Qaeda in Afgahanistan has a Hotmail account, and is using that Hotmail account to communicate with other co-conspirators. Section 2709 lets the FBI order an ISP to disclose the person's name and address (in the unlikely case it was entered accurately), as well as transactional information such as when the account was accessed, from what IP address, and the e-mail addresses of other associates who sent e-mail to or received e-mail from the suspect account. The FBI sends a letter — known as a National Security Letter, or NSL — to the ISP ordering it to make the disclosure, and the ISP must do so. Also, the section provides that the ISP cannot "disclose to any person" that the order has been made.

  The recipient of a NSL challenged this procedure in federal court, claiming that the procedure violated the Fourth and First Amendment. The Fourth Amendment argument related to the constitutional rights of the ISP, not the rights of the ISP's subscribers; under relevant precedents, it is quite clear that ISP users do not have a reasonable expectation of privacy in their transactional records. The plaintiff argued that there is nothing in the statute that allows the ISP to challenge an NSL if the letter is overbroad, and that this failure to allow a judicial challenge rendered the statute unconstitutional. The basic idea here is that there needs to be judicial review of any kind of order to compel information under the Fourth Amendemnt so that a court can determine whether the order is valid. The government did not contest this; the government contested the plaintiff's reading of the statute.

  Specifically, the government responded that the statute had to be read as allowing a challenge, just like the challenge at issue in this case. Arguing that the court should construed the unclear statute in a way that renders it constitutional, the government urged the court to read the statute in harmony with other similar laws such as laws governing the issuance and challenge of subpoenas. If a recipient of an NSL wanted to challenge the NSL, the government argued, it could just go to a district court like the Southern District and file a motion to quash the NSL. Such a reading would presumably (although not obviously) render the statute valid under the Fourth Amendment.

  Judge Marrerro rejected this argument, at least sort of. In a very strange passage, Judge Marrero concluded that even if the government were right that the statute means what the government says, Section 2709 is unconstitutional because the NSL letters themselves appear on FBI letterhead and are phrased using very commanding language. A reasonable recipient is likely to view the NSL letter, "phrased in tones sounding virtually as biblical commandment," as something that could not be challenged. (see page 62-63). Thus, even if the statute could be read to allow recipients to challenge the letter in court, the scariness of the letter trumped the text of the statute and rendered the statute unconstitutional:

The Court concludes that in practice NSLs are essentially unreviewable because . . . given the language and tone of the statute as carried into the NSL by the FBI, the recipient would consider himself, in virtually every case, obliged to comply, with no other option but to immediately stay put.

Id. at 65. Then, before moving on to the First Amendment issues, Judge Marrero suggested that the government might be able to cure the Fourth Amendment defect "by alerting all NSL recipients" that in its view recipients can challenge the letters.

Put simply, this rationale is really quite strange. I have never seen reasoning like this in any Fourth Amendment opinion. (Notably, Judge Marrero did not offer any Fourth Amendment precedent in support of that approach; instead he relied on a 1st Circuit case interpreting Rule 6 of the Federal Rules of Criminal Procedure and a First Amendment case, Bantam Books v. Sullivan, 372 U.S. 58 (1963)). It's only a statutory interpretation issue, ultimately, and the Second Circuit on appeal might just read the statute and conclude that it does not allow a challenge on its face. But Judge Marrero's approach is quite strange. Under Judge Marrero's own reasoning, for example, he could have rendered Section 2709 constitutional under the Fourth Amendment simply by announcing that he construed the statute to allow a challenge — something he implicitly did by ruling on the plaintiff's challenge. After all, had he announced that he was interpreting the statute to allow challenges, word would have gone out quickly to the ISP community and the ISP community would know that they could file the challenges. Ergo, the statute would be constitutional.

The Rise of the Blogs:

Blogs seem to be getting the attention of the mainstream media. To get some idea of how long this has been happening, I ran month-by-month searches for use of the word "blog" appearing in the Westlaw ALLNEWS database covering the last two years. (The ALLNEWS database is a database of newspapers, more or less). You can chart the growing awareness of blogs -- albeit quite imperfectly, of course -- in the increasing number of uses. I have hidden the raw data behind the link below, but the numbers begin with about 100 mentions per month in late 2002; climb to 300-400 mentions per month in most of 2003; go up to 700 mentions per month in early 2004; and escalate to about 1300 mentions a month since this past July.

(Click here for the raw data.)Number of mentions of the word "blog" in the Westlaw ALLNEWS database per month, as of 9/28/04: Sept to Dec 2002: 110, 97, 84, 101. Jan to Dec 2003: 149, 192, 361, 237, 228, 282, 339, 458, 387, 357, 462, 482. Jan to Sept 2004: 660, 646, 655, 700, 792, 764, 1296, 1242, 1269 (as of 9/28).(hide)

What are the odds of that?

[Silly mathematical error of mine deleted; thanks to those who explained to me my mistake.]

Senators call for investigation of comments by Supreme Court leaks: Here's a letter from Senators Cornyn, Chambliss, and Graham to Senators Hatch and Sessions:

September 29, 2004
The Honorable Orrin G. Hatch
Chairman
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, D.C. 20510
The Honorable Jeff Sessions
Chairman
Subcommittee on Administrative Oversight and the Courts
Committee on the Judiciary
335 Russell Senate Office Building
Washington, D.C. 20510
Dear Senators Hatch and Sessions,
Recent articles in Vanity Fair and Legal Times strongly suggest that the duty of confidentiality owed to justices of the United States Supreme Court by their employees have been breached. If proven, these allegations present serious concerns about the integrity of judicial operations and warrant the attention of the Senate Judiciary Committee or its subcommittee on Administrative Oversight and the Courts.
According to an article published in the October 2004 issue of Vanity Fair, a number of law clerks who served at the U.S. Supreme Court during the October 2000 Term intentionally disclosed confidential information about the Court's internal deliberations to a reporter. Such disclosures clearly violate the duty of confidentiality owed by every law clerk to the United States Supreme Court. Indeed, the Vanity Fair article itself quotes one former law clerk apparently complicit in the disclosure, who admits that such discussions "break[] an obligation" to the Court. These disclosures have been roundly condemned as "conduct unbecoming any attorney or legal adviser working in a position of trust" and "behavior that violates the Code of Conduct to which all Supreme Court clerks . . . agree to be bound," in a recent letter published in the Legal Times and signed by numerous Supreme Court practitioners and former law clerks.
Judges throughout the federal judiciary, including the U.S. Supreme Court, rely on the assistance of law clerks to ensure the smooth and expedient administration of justice. If members of the judiciary cannot rely on the confidentiality of their deliberations and discussions with law clerks, the judiciary as we know it simply could not function.
Oversight of the operations of the judiciary fall uniquely within the jurisdiction of the Senate Judiciary Committee and its subcommittee on Administrative Oversight and the Courts. Accordingly, we ask that you consider hearings or other measures to determine whether there has been misconduct by employees of the United States Supreme Court, and if so, what measures should be taken in response.
Sincerely,
John Cornyn
Saxby Chambliss
Lindsey Graham

Related Posts (on one page):

More Establishment: Oh, and the National Review, Oct. 11, 2004, lists us in the "second rank" of its Blog Guide (quite rightly behind the much more popular Drudge Report, InstaPundit, Andrew Sullivan, kausfiles, and OpinionJournal) (thanks to reader Stephen Dillard):

VOLOKH CONSPIRACY www.volokh.com
UCLA law prof parades his libertarian-leaning academics.

And everyone loves a parade!

Establishment:

Todd Seavey reports:

FYI: The Sept. 30 - Oct. 7 issue of the megapopular stuff-to-do listings magazine TimeOutNY has a feature listing forty or so suggested sources of info during the prez campaign, and it includes Volokh.com and Instapundit.com (as well as AndrewSullivan.com and Antiwar.com, interestingly, but almost everything else is lefty). Another reminder you're becoming the Establishment.

Cool! I've always wanted to be Establishment Cool.

More on the email selective service hoax. I posted on CBS's new problems with its pushing an email letter without pointing out that it is a hoax. If you want to see how these hoax emails prey on the gullible, consider this letter (scroll down) to the editor of the Northeast Times (Philadelphia area) from last June. It is from Beverly Cocco, whose family's fears of a draft was the focus of Tuesday night's CBS News report:

Put a chill on the draft bill

Just this week I received an e-mail so upsetting that I forwarded it to all my friends, who then forwarded it to all their friends. We are now a good size group.

The e-mail concerned Bill S89 and HR 163. The bill is about reinstating the draft, beginning in the spring of 2005. The draftees will be all males and females between the ages of 18 and 26. There will be no deferments; seniors will be allowed to finish the year, and underclassmen will only be allowed to finish the semester. There is already a document signed between the U.S. and Canada, the "Smart Border Declaration," which will prevent crossing the border.

Since this is a federal bill, I was advised to contact Sen. Specter, Sen. Santorum and Congressman Joe Hoeffel. Sen. Specter's office said that these bills are a "secret." When I told him that the cat was out of the bag, he offered to connect me with the Washington office. That office assured me that the senator was against this bill. I am still waiting for Sen. Santorum to respond, but Congressman Hoeffel is undecided. His office is sending me a letter detailing his thoughts.

We are now in the process of collecting as much information as possible about this bill and the candidates.

We keep getting told that there are no sponsors for this bill and not to worry about it. But why did South Carolina Sen. Ernest Hollings draft this bill [actually, Charles Rangel-D first introduced it in the House, with 14 Democratic co-sponsors], and why is it sitting in the Senate? We think that it is important to find out before the election. Meanwhile, we are starting an organization called Parents Against the Draft (PAD). . . .

Beverly Cocco

In this letter, one can see the turmoil that email hoaxes cause people. Now CBS had spread the same fears to millions of others, based on phony information in a debunked email hoax.

Was CBS hoaxed again? When 60 Minutes II ran its story based on crude forgeries of Texas Guard documents, the humor site, Sharp as a Marble, ran a mock story entitled, "Dan Rather: Nigerian Mail is Authentic. Will be Retiring After Money is Transferred."

Dan Rather, of CBS News, is reported to have tendered his resignation from 60 Minutes after receiving a letter informing him of a sum $45M US due to him from Nigeria. Mr. Rather, who is well known for exposing President Bush's lack of honorable service while in the Texas Air National Guard, has agreed to transfer funds from the impoverished nation into his own account.

Many typography experts questioned the validity of the mailing saying that the image provided on CBS's web site looks like a font not found in Nigerian versions of Microsoft Word. Rather went on record stating unequivocally that the letter is authentic. . . .

When asked about the possibility that the typefaces are too similar to those found in common web browsers, Mr. Rathers responded "This is real. Those who are trying to say that this is some sort of scam are mostly Internet writers who have an agenda. I am taking my $45,560,000.00 and leaving this job and doing anything that doesn't involve having my judgment questioned by men who write in their pajamas. Besides, I had a handwriting expert agree that this is not handwritten and therefore authentic".

Is life once again imitating art?

According to Ratherbiased.com, guest posted at Rathergate.com (tip to Instapundit), last night on the CBS Evening News reporter Richard Schlesinger used fake documents to spread an internet rumor that has been long debunked. The document, which CBS showed on the screen much as it had the phony Burkett Guard documents, purports to be an email from someone in the Department of Defense, but it is actually a chain email hoax letter.

In order to scare voters, particularly the young, into voting Democratic, there have been emails circulating that point to HR163 and S89, bills proposing national service for both men and women. Both bills are proposed and co-sponsored solely by Democrats, a fact that the emails fail to mention. Although some commentators have suggested that "members of both parties have introduced bills to reinstate" the draft, I have not been able to locate any introduced by Republicans in the current Congress by following the links to the supposed evidence (perhaps others who know of any current Republican-sponsored bills to reintroduce the draft can help me on this). The most that has been pointed out so far is the statement of one Republican Senator (Chuch Hagel) favoring a draft, no actual Republican bills.

These emails usually, however, go further, sometimes claiming that there are plans to call up both men and women on June 15, 2005 and that "The administration is quietly trying to get these bills passed now," which is flatly false. The emails also report that the budget for the Selective Service office has been increased substantially for next year, which FactCheck claims is an outright falsehood.

CBS noted that both campaigns denied any intent to reintroduce the draft, which is obviously a dead issue for both sides, but if you read the transcript, by showing phony documents and repeating phony facts, the email hoax is presented as plausible. Nowhere do they report that this is an already debunked email hoax. Nowhere do they report that there are official statements from the relevant government officials denying this hoax.

If CBS would fall for the forged Burkett Guard documents and the phony draft emails supposedly from the Department of Defense, can the Nigerian funds transfer letter be far behind?

2004 MacArthur Fellows:

The 2004 MacArthur Fellows have been announced. Information here. As Brian Leiter has noted, these awards are often but misleadingly described as "genius grants." It would seem more accurate to say that the awards are given to interesting people doing interesting work that the fellowship committee finds commendable and wants to recognize with an award. Of possible interest: as best I can tell from the names and pictures, there are only five white men among the 23 Fellows this year. Also, eight of the Fellowships were awarded to professors in the fields of science and engineering, and six of the eight are women.

UPDATE: A reader points to this article from Slate a few years back that provides some additional (humorous) perspective. An excerpt:

[T]he perfect MacArthur genius is still out there: a one-named Berkeley professor who choreographs interpretative jazz dances about how genetically modified food will destroy humanity.

Churches and International Human Rights:

Here's an excerpt from a Institute for Religion & Democracy study of "Human Rights Advocacy in the Mainline Protestant Churches (2000-2003)":

Research Design

We analyzed human rights criticisms made by four mainline Protestant denominations (the United Methodist Church, the Evangelical Lutheran Church in America, the Episcopal Church and the Presbyterian Church U.S.A.) and two ecumenical bodies (the National Council of Churches and World Council of Churches) over a period of four years (2000-2003) to determine which nations were criticized for human rights violations and why. We used the 2004 human rights assessments published by Freedom House as a benchmark for human rights in nations analyzed. A given church statement or document was considered to have criticized human rights in country X when, in the context of a discussion of human rights in country X, it passed negative judgment on specific current policies or actions of the government of X.

Results

Overall, criticisms of Israel amounted to 37 percent of the 197 human rights criticisms offered by the churches during those years, only slightly higher than the 32 percent of criticisms leveled at the United States. The remaining 31 percent of criticisms were shared by twenty other nations. For every one criticism of any other foreign nation, one criticism was made of the United States and one of Israel. Nearly all churches demonstrated this focus on the United States and Israel in their legislative actions, their statements, their news sources, or all three.

As a result, nearly three out of four human rights criticisms were made of nations designated as free (mostly the United States and Israel) by the Freedom House assessments. Those rated not free totaled 19 percent of criticisms, while partly free nations totalled only 8 percent of criticisms. Of the fifteen worst human rights offenders in the world, only five were criticized by the churches during the four year period studied.

Regions like the Middle East (apart from Israel) and Central Asia (former Soviet republics) were the most notable areas ignored by the churches in their human rights advocacy. Partly free nations, where church influence might be most effective in widening the limited civic space already open to indigenous Christians and other citizens, received the least attention.

Conclusions

The mainline churches are not adequately addressing the wide range of human rights abuses taking place in the world. Denominations are focusing on the United States and Israel as the primary perpetrators of human rights violations. Great attention to the United States may be expected from churches that find their homes there. But the dramatic focus on Israel as opposed to many more repressive regimes, including other U.S. allies known for human rights abuses (such as Saudi Arabia and Egypt), must be challenged.

In the 1970s and 1980s, the churches made the mistake of supporting oppressive Soviet-sponsored liberation movements around the world. They largely ignored human rights abuses in the Soviet Union and its satellite states, instead focusing on U.S. policy as the primary source of abuse. It appears that mainline denominations may be making the same mistake today with the Arab and Muslim worlds, ignoring many of the most serious abuses while apparently laying heavy blame upon the United States and Israel not only for their own lesser abuses, but also for the abuses of others. . . .

I can't speak to the accuracy of the details in the report, and I'm not an expert on the subject. But this seemed worth passing along, because it does strike me (as a layperson) as having a good deal of truth to it.

Thanks to Patrick Oden for the pointer.

"Respect the Box":

I was just thinking back to a particular set of incidents (the details need not detain us), and it struck me how important it is both to think outside the box and to understand why the box is there and why 95% of the answers are within it. So the catchy slogan "think outside the box," important as it is, needs to be complemented with an equally catchy antithesis. Hence, my proposal:

Respect the Box.

Surprise:

I've gotten a bunch of messages from people who say they're surprised that we haven't posted anything about the Laurence Tribe copying controversy (see here and here).

Here's a tip: Never be surprised when people don't invest a good deal of time and effort into stuff that they aren't really required to do. Actually, my tentative sense is that while the 19-word literal copying by Tribe was wrong -- and that he was right to apologize for it as soon as the charge was made -- the paraphrasing of the other material was probably not wrong. (I can't speak, of course, for my cobloggers on this.)

In a book aimed at a mass market audience, which doesn't have footnotes or endnotes (and publishers, I'm told, often dislike having footnotes and endnotes in such books, since they make the book seem more daunting and add pages), it's legitimate to rely on facts reported by others without having to prefix each sentence with "As Professor X said, Y got 100,000 votes more than Z, but lost in the electoral college." Nor is there a need to credit people for short phrases like "vagaries of the electoral college," where the alleged novelty is simply the use of the word "vagaries." In a law review article, you'd drop a footnote, but when you don't have footnotes, you'd often just generally list the book in a bibliography and be done with it. Copying really original ideas from another book is a different story, but I really didn't see much of that in the charges against Tribe.

But I say "tentative," because this is the sort of stuff that requires work to reach an informed opinion about, especially when the charges are allegations of personal misconduct, and allegations in my own professional field, where my judgments are likely to seem like expert judgments and not just a layperson's speculation. I don't want to give an off-the-cuff definite answer. Rather, I'd have to look at the books (I asked the library for them yesterday, but haven't gotten them yet); check to see the quotes in context; look carefully again at all the quotes; think some more about what the norms are or should be in this particular medium (a professor writing a book for a lay audience, without footnoting); and more.

That, as I said, takes work. Work takes time, especially when it's not your day job. At some point, the work becomes more trouble than it's worth, which means that I might conclude that I don't want to publish any definite view on this subject at all. In fact, I wouldn't have even taken the time to write this post if so many people hadn'tt e-mailed me about the subject.

So please, never be surprised that we're not blogging about something, and especially not when blogging about that something actually requires a good deal of time and effort. Sometimes we'll invest that time and effort, if we're interested enough, and if we're inclined to set aside our other business. Sometimes we won't. Nothing at all surprising about it.

Digital Evidence and the New Criminal Procedure: A draft of a new forthcoming essay of mine, Digital Evidence and the New Criminal Procedure, is now available on SSRN. The essay studies the differences between traditional criminal investigations and investigations into computer-related crimes, and argues that computer-related crimes will trigger new rules of criminal procedure in response to those differences. It's a fun and relatively short piece — at least by the standards of law reviews — and will be published as an essay in the January 2005 issue of the Columbia Law Review.

To download the current draft, click here, scroll down to the bottom of the page, and click on "Download document from SSRN." As always, comments from VC readers are welcome. I am particularly interested in comments from any computer geeks out there who might be able to point to errors or omissions in my technical discussions. Here is the Essay's introduction, which should give you a flavor of the piece:

This essay shows how existing rules of criminal procedure are poorly equipped to regulate the collection of digital evidence. It predicts that new rules of criminal procedure will evolve to regulate digital evidence investigations, and offers preliminary thoughts on what those rules should look like and what institutions should generate them.

Digital evidence will trigger new rules of criminal procedure because computer-related crimes feature new facts that will demand new law. The law of criminal procedure has evolved to regulate the mechanisms common to the investigation of physical crime, namely the collection of physical evidence and eyewitness testimony. Existing law is naturally tailored to the law enforcement needs and privacy threats they raise. Computers have recently introduced a new form of evidence: digital evidence, consisting of zeros and ones of electricity. Digital evidence is collected in different ways than eyewitness testimony or physical evidence. The new ways of collecting evidence are so different that the rules developed for the old investigations often no longer make sense for the new. Rules that balance privacy and public safety when applied to the facts of physical crime investigations often lead to astonishing results when applied to the facts of computer crime investigations. They permit extraordinarily invasive government powers to go unregulated in some contexts, and yet allow phantom privacy threats to shut down legitimate investigations in others.

This Essay explores the dynamics of computer crime investigations and the new methods of collecting electronic evidence. It contends that the new dynamics demonstrate the need for procedural doctrines designed specifically to regulate digital evidence collection. The rules should impose some new restrictions on police conduct and repeal other limits with an eye to the new social and technological practices that are common to how we use and misuse computers. Further, the Essay suggests that we should look beyond the judiciary and the Fourth Amendment for the source of these new rules. While some changes can and likely will come from the courts, many more can come from legislatures and executive agencies that can offer new and creative approaches not tied directly to our constitutional traditions.

Indeed, a number of new rules are beginning to emerge from Congress and the Courts already. In the last five years, a number of courts have started to interpret the Fourth Amendment differently in computer crime cases. They have quietly rejected traditional rules and created new ones to respond to new facts of how computers operate. At a legislative level, Congress has enacted computer-specific statutes to address other new threats to privacy. The changes are modest ones so far. Taken together, however, the new constitutional and statutory rules may be seen as the beginning of a new subfield of criminal procedure that regulates the collection of digital evidence.

This Essay will proceed in three parts. Part One compares the basic mechanisms of traditional crimes and computer-related crimes. It explains how the switch from physical to electronic crimes brings a switch from physical evidence and eyewitness testimony to digital evidence, and how investigators tends to use very different methods of collecting the two types of evidence. Part Two turns from the facts to the governing law, focusing on the Fourth Amendment's prohibition on unreasonable searches and seizures. It shows that existing Fourth Amendment doctrine is naturally tailored to the facts of physical crimes, but that a number of difficulties arise when that doctrine is applied to the facts of computer crime investigations. Part Three argues that new rules are needed to govern digital evidence collection, and offers preliminary thoughts on what those rules might look like and what institutions should generate them. It also shows that courts and Congress already have begun responding to the problem of digital evidence with a number of computer-specific rules.

Please send any comments to okerr at law.gwu.edu.

Justice:

Fellow lawprof Joe Olson passes along this quote, from John O'Sullivan:

This high-minded timidity [of treaties and conventions enforced only against those who agree in advance to be bound by them] permeates modern culture at high and low levels. For instance, a recent thriller about hostage-taking, "Man on Fire," directed by Tony Scott and based on a novel by A.J. Quinnell, received harsh critical reviews precisely because it seemed to approve of revenge and vigilantism.

Creasy, played by Denzel Washington, is a burnt-out former mercenary who becomes a bodyguard to a young girl in Mexico City. She gradually draws him back from his suicidal despair by her frank affection. When she is kidnapped and apparently murdered, he methodically sets out to find and kill the men responsible — in very brutal ways. As in the 1970s Charles Bronson movie, "Death Wish," the viewer essentially sympathizes with Creasy. The critics thought this a crudely vicious message on both occasions.

But as Bacon pointed out: "Revenge is a kind of wild justice." It will inevitably — and arguably rightly — become the resort of decent people when law and government fail to deliver justice. Post-modern governments fail in just that way. Humanitarian bodies such as Amnesty International are even worse: They practice a sort of unilateral civil libertarianism that holds governments to account for the smallest infraction of civil liberty but treats terrorism as a natural disaster. Transnational bodies like the U.N. and the EU are worse — they seek to take the weapons of war and capital punishment from us in our struggles against terrorism, slavery, piracy and hostage-taking and to force us to rely instead on their own paper resolutions and elevated principles.

All these responses — from the critical reactions to "Man on Fire" to the E.U.'s prohibition of capital punishment — are overcivilized. That sounds almost like a compliment, as if it meant more civilized. In fact, to be overcivilized is to be less civilized because genuine civilization includes a robust willingness to enforce its order and truths on anarchy, violence, murder and superstition.

As long as we remain overcivilized, anarchy, violence, murder and superstition will continue their sinister recovery — until one day you may think you hear your own mother's voice [pleading for your life] on the network news.

There are obvious reasons not to take this argument to its logical conclusion, which might push us from the overcivilized to the undercivilized; the point it makes is one of those points that is valid, but has to be kept in mind alongside some equally valid points on the other side. But it is indeed a point that needs to be remembered.

Follow-up as to Tory v. Cochran:

One item I forgot to ask -- will Johnnie Cochran decide to argue the case himself? He was represented in the California Court of Appeal by two lawyers from Nemecek & Cole, a fairly small L.A. firm; and he's not primarily an appellate lawyer or a First Amendment lawyer, though he did argue and mostly win the Parks v. LaFrance Records appeal last year. If all he wanted to do was maximize his chances of winning, he'd probably get a top Supreme Court litigator to argue the case for him. (Such litigators cost a lot of money, but Cochran's own time is worth a lot of money, and it takes a lot of time to prepare for an oral argument.)

Still, can Cochran pass up what might be his one chance to argue before the Supreme Court, especially when there's really not that much at stake for him if he loses? I don't know much about the man, but many is the lawyer who'd jump on that opportunity. Hey, if nonpracticing lawyer Michael Newdow and nonlitigator-CPA-Certified Financial Planner Silvia Ibanez can do it, why not Johnnie Cochran?

The one downside is that it would attract still more attention to the case, which after all is about a client's allegations of Cochran's malfeasance. But the allegations have been explicitly found false, and sound not very plausible (they're mutterings about a conspiracy, by the sort of person who follows his sentences with multiple exclamation points). "Johnnie Cochran argues before the U.S. Supreme Court" is the sort of story Cochran might like. Hey, "Eugene Volokh argues before the U.S. Supreme Court" is the sort of story Volokh might like (not that it's ever likely to happen), so why shouldn't Cochran?

Thursday, September 30, 2004

Wednesday, September 29, 2004

Tuesday, September 28, 2004