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Reforming the FISA Court: A Second Post on the Public Defender Idea

February 13th, 2018 2 comments

On February 7, I blogged on how to reform FISA procedure, suggesting (a) public defenders, and (b) preventing the FBI from getting to pick the judge they want.  Later I came across Judge Reggie Walton’s 11-page letter  (with the FISA rules as an appendix) written  in 2013 to Congress to let them know how the court worked. It’s must reading for anybody opining on the Carter Page scandal. What I learned from it is that (a) the judges do have staff attorneys that take a hard look at the FBI applications for search warrants, (b) the court works with the FBI to narrow down warrants to where they’re appropriate (which is one reason hardly any get rejected—lots get modified before approval), and (c) it looks to me as if the FBI can indeed cherry pick judges.

(1) Here is my proposal. Read more…

Categories: crime, judges, Justice Dept. Tags:

Is the FISA Court Worse Than Nothing?

February 7th, 2018 No comments

4th Amendment expert Professor Orin Kerr tweets:

“American Greatness blog: Every govt official involved in the Page FISA application should be jailed for their crimes (what crimes, who knows, that isn’t mentioned). Then Congress should repeal FISA so there is no judicial check on surveillance.” (Wut?)

He’s right to have that reaction. Angelo Codevilla’s article, “Jail the Guilty, Repeal FISA,” is sloppily written, and seems stupid at first reading. After some thought, though, I think Codevilla may be right.  So let’s see if we can explain his idea better.  Read more…

Categories: crime, judges, Justice Dept., law. politics Tags:

Comment on Orin Kerr on the FISA Memo’s Fraudulence

February 1st, 2018 No comments

From Volokh Conspiracy (and Lawfare), Professor Kerr writes:

This is a scandal, the argument runs, because it means the application was fraudulent. Because Steele was funded by Democrats, his reports were just unreliable opposition research designed to make Trump and his associates look bad. And if the FISA application was based on Steele’s unreliable research, and DOJ never told that to the FISA Court, then DOJ misled the court and the court should not have issued the warrant.

As a Fourth Amendment nerd, it seems to me that the premise of #ReleaseTheMemo is pretty dubious. The apparent idea is that the failure to adequately document the funding behind Steele’s work is a huge deal and a fraud on the court. But as a matter of law, that seems pretty unlikely to me. When federal judges have faced similar claims in litigation, they have mostly rejected them out of hand. And when courts have been receptive to such claims, it has been because of specific facts that are likely outside the scope of the memo that will be released.

 

Prof. Kerr misses the elephant in the room, in two senses.

In the first, sense, the elephant is the omnipresent in 4th Amendment Law: the law protects only criminals, not innocent people, from illegal searches.  It does this by limiting relief to the police not being able to use what they find in court, which is unnecessary if they never intend to indict you.

In the second, more specific,  sense  the elephant is that the purpose of the warrant wasn’t to investigate a crime, it was to be able to spy on the Attorney-General’s political enemies.

This is more than a little relevant. In every case cited in the post, the police had no motive to use informants they thought were totally unreliable. Why bother to do the search if you think it’s not going to find anything? That provides a powerful reason for courts to presume (rebuttably) good faith on the part of the police, and give weight to their local knowledge and expertise. In the Steele dossier case, the FBI had a motive to get the wiretap even if it knew 100% the informant was unreliable, because their Democratic bosses could use the wiretap anyway (and quite likely the FBI civil service bosses were anti-Trump too, as we now know).

Categories: crime, judges, Justice Dept., law, law professors Tags:

Obviously Wrong Judicial Opinions

August 20th, 2013 No comments

Somebody put together a list of 7 or so judicial opinions he thought everybody would believe were dead wrong. All were old cases that offend modern pieties.

What would be much more interesting would be a set of cases which immediately led expert lawyers in the field to say, “That court has made a fool of itself again.” Read more…

Categories: judges, jurisprudence Tags:

Fixing the FISA Court and Search Warrants Generally

July 12th, 2013 No comments

At the law lunch yesterday we were discussing the special FISA Court which has to approve certain kinds of search warrants for electronic communications, including the famous one which let the NSA see who is making phone calls to who. One topic that came up was court composition. The court is made up of ten or so federal district judges selected by the Chief Justice of the US Supreme Court for 7-year terms, and no judge can serve two terms. The police or NSA go to one judge on it and ask for a warrant. Appeals are made to a special 3-judge appeals court, also appointed by the Chief Justice. Further appeals can be made to the U.S. Supreme Court, I imagine.

Problem 1. Currently almost all of the judges were created judges by Republican presidents, and this looks bad when they are also chosen by a conservative Chief Justice. Read more…

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Should Victims Be Able to Sue Corrupt Judges

November 28th, 2009 No comments

From VC:

Now comes news that the judges are immune from suit arising from any and all of their “judicial acts” in connection with the sentencing of these juveniles. [Stories are here and here; the opinion in the case conferring absolute immunity on the defendant judges (Middle District of PA, Judge Caputo) is here). Judge Caputo’s opinion conferring the immunity is thoughtful and well-reasoned…

My comment:

Very interesting problem, and you’re right that it’s not an easy one. We definitely want the judge to have criminal liability, I think (some people might want to limit it to impeachment) and we want the corrupt cases to be subject to review, so the only question is whether the victim— the losing side— should be able to sue the judge or the government for money damages besides.

What is the case with corrupt policemen? (Section 1983?) Can they be sued personally?

We also have a second-best situation. As the Court says, we’d have a huge amount of meritless litigation harassing judges. I say that is “second-best” because it is the fault of bad policy created by the judiciary itself, which for the past 50 years has encouraged nuisance suits generally. If judges would use their powers to punish lawyers who bring meritless suits, the problem would dwindle. Maybe making judges personally vulnerable to legal harassment and wacko juries would change the judiciary’s mind about whether trial lawyers should be given every freedom to sue corporations.

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Can Pornographers Be Prosecuted for Paying for Sex?

December 10th, 2008 No comments

Prof. Volokh has a good weblog entry on Can Pornographers Be Prosecuted for Paying for Sex?.

Categories: judges, social regulation Tags:

Which Supreme Courts Justices Would You Not Have Nominated?

August 20th, 2008 1 comment

From the WSJ comes a good question asked by Pastor Warren:

Rev. Warren asked each candidate which Justices he would not have nominated. McCain, who interviewed after Obama, answered that, “with all due respect,” the four most liberal Justices.

For his part, Obama said, “that’s a good one,” and then explained: “I would not have nominated Clarence Thomas. I don’t think that he, I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation. Setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.” Obama added that he wouldn’t have appointed Justice Scalia, and perhaps not John Roberts, either.

Here
is the transcript. It says:

Which existing Supreme Court Justices would you not have nominated?

MCCAIN: With all due respect, Justice Ginsburg, Justice Breyer, Justice Souter, and Justice Stephens.

WARREN: Why? Tell me why.

MCCAIN: Well, I think that the president of the United States has incredible responsibility in nominating people to the United States Supreme Court. They are lifetime positions, as well as the federal bench. There will be two or maybe three vacancies. This nomination should be based on the criteria of proven record, of strictly adhering to the Constitution of the United States of America and not legislating from the bench. Some of the worst damage has been done by legislating from the bench. (APPLAUSE).

And by the way, Justices Alito and Roberts are two of my most recent favorites, by the way. They really are. They are very fine. (LAUGHTER). And I’m proud of President Bush for nominating them.

Obama’s transcript is in a different file. [September 23: In light of the first comment below, I’ve deleted the excerpt from Obama’s transcript, as it might be misleading.]

Categories: judges, obama Tags:

January 30th, 2008 No comments

Wicked Judges. Oxford has a number of bad judges. Here is a Julian Hall story:

… a 58-year-old former teacher at the Cothill School in Oxfordshire was charged recently with abusing a number of boys in the 1970s. But the judge, Julian Hall, declared earlier this year that “this is the stalest case I have been asked to try” and threw it out.

“I think the best thing that should happen to people who behave in this way,” Hall told Oxford Crown Court, speaking of the former teacher, Jeremy Malim, “is that they should get a very brisk elbow in the ribs at the time or be rejected.”

And here’s more about Julian Hall:

Judge Hall, criticised last year for saying a 10-year-old rape victim dressed provocatively, gave a Berinsfield teenager three years’ probation for molesting a five-year-old girl.

The 17-year-old – who Judge Hall banned the Oxford Mail from naming – had also abused a seven-year-old boy….

Last year, Judge Hall sent Blackbird Leys window cleaner Keith Fenn to prison for just two years after he raped a 10-year-old.

He also told a 71-year-old man who sexually abused a six-year-old to compensate her with money for a new bike….

Judge Hall told lawyers in court: “At the moment, the defendant is probably not dangerous.”

The girl’s mother, who was sitting in the public gallery, shouted out: “Tell that to my daughter!”

Judge Hall told the teenager: “What you did was dreadful and it is the sort of behaviour which affects people rather badly and for a long time.

“You are going to have to attend courses to help you sort out your attitude to sex and children younger than you.”

He granted the teenager anonymity and said that he was too young to be identified publicly for his crimes.

And here’s a story about Charles Harris:

A JUDGE who likened growing cannabis to tomato plants criticised Oxford City Council as he dismissed an Antisocial Behaviour Order.

The city council had wanted Phillip Pledge thrown out of his home and banned from Blackbird Leys for two years after police seized £3,400- worth of cannabis from a flat in Evenlode Tower where he was temporarily living.

But Judge Charles Harris – who caused controversy last week during the Asbo hearing when he said it was no more offensive to neighbours to grow cannabis than tomato plants – threw out the case.

Judge Harris said at Oxford Crown Court: “Oxford City Council applied for the order because the defendant caused harassment, alarm or distress.

“I have considerable reservations. There is no evidence at all to show anyone had been caused alarm, had been harassed or could be distressed.

“It is not appropriate to seek orders with potentially very serious consequences without producing evidence to justify them.

“It is alleged the defendant was growing and selling cannabis in his flat. This is a criminal offence and he could have been tried in the criminal courts.

“For some reason the Crown Prosecution Service has not charged Mr Pledge, although the police have reason to justify charging him.

“It is not for the local housing authority in civil proceedings, via an Asbo, to provide a substitute for criminal proceedings.”

The court heard Mr Pledge was jailed in 1998 for possession of cannabis and fined in 2000 for cultivating it.

Mr Pledge, of Strawberry Path in Blackbird Leys, had been living in the flat temporarily due to an arson attack on his home.

The 38-year-old was in rent arrears of £1,479.64, but told Judge Harris he had arranged to pay that back. …

Judge Harris did not give leave for the council to appeal against his decision against an Asbo or to evict Mr Pledge.

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