DOJ Decides To Help Publicize Snowden's Memoir By Suing Him For Failing To Run His Book By The CIA And NSA First

from the thanks-for-the-publicity dept

As you've probably heard, Ed Snowden just came out with his memoir, entitled Permanent Record. I haven't yet had a chance to read it, but it looks fascinating. Snowden obviously can't do the usual book tour for this kind of thing, but he has been doing a fresh round of very interesting interviews about his current situation -- including saying that he'd be willing to come home to the US and stand trial if only the US actually allowed a public interest defense for Espionage Act claims. As we've pointed out for years, one of the (many) problems with the Espionage Act is that it literally does not allow a defendant to explain why they leaked certain information, and assumes that it is equally nefarious to sell secrets to foreign enemies as it is to blow the whistle by informing the press of unconstitutional surveillance.

Still, the DOJ decided to help boost sales of Snowden's book by suing him for all of the proceeds, over violation of the contract he held with both the CIA and the NSA. The lawsuit is fairly straightforward. Anyone who works in the intelligence community signs a lifetime contract that forbids publishing any manuscript or speech related to their work, without first getting "pre-publication" review.

The government takes this very seriously (in fact, too seriously). Indeed, just recently there was another controversy about pre-publication review regarding a memoir and TV show by former CIA officer Amaryllis Fox. And, for reasons like these, it seems that -- purely on a legal basis -- Snowden and his publisher have a high likelihood of losing the lawsuit (in part because the law is against him here, and in part because he's unlikely to be in a position to contest it from Russia -- a point we'll discuss more below).

That said, pre-publication review is a hugely sketchy process. Earlier this year, a bunch of former intelligence officials actually sued the government, arguing that the requirement is unconstitutional. That case is still making its way through the courts, with the government pushing for it to be dismissed. However, there are other recent stories about what a bullshit process pre-publication review tends to be. It involves multiple different contracts with unclear definitions and unclear requirements. Recent revelations have also shown that the feds often use the process to purposefully delay books that will reflect poorly on the government, while speeding through ones that support the government's position, or are coming from high-profile former officials.

The ACLU, which is defending Snowden (and also involved in the other pre-publication lawsuit mentioned above) quickly put out a statement claiming that the book doesn't reveal any new secrets and didn't need to go through review:

"This book contains no government secrets that have not been previously published by respected news organizations. Had Mr. Snowden believed that the government would review his book in good faith, he would have submitted it for review. But the government continues to insist that facts that are known and discussed throughout the world are still somehow classified.

“Mr. Snowden wrote this book to continue a global conversation about mass surveillance and free societies that his actions helped inspire. He hopes that today’s lawsuit by the United States government will bring the book to the attention of more readers throughout the world.”

Snowden, for his part, seems to have had a bit of fun about the whole situation on Twitter, pointing out how it's helping to attract more attention to the book:

Oh, and also this:

Though, the framing of this as being about the government "not wanting" people to read the book is not entirely fair. They are not suing to stop the publication, which would be a much tougher task. They're suing for the money -- and as much as I disagree with the government on this, given the current state of the law, it's totally understandable why it feels the need to. Without this lawsuit, lots of others who are going through, or intend to go through, pre-publication review will point to the Snowden situation and say "but what about that guy?"

Anyway, as noted, the government likely does have a strong case, even as bullshit as the pre-publication rules are. And, so, perhaps this means that the Treasury will get a bit of money that should end up with Snowden or his publisher. But, if the goal (as Snowden has insisted) was merely to continue the conversation and get his story out there, well, the DOJ just ended up promoting the book quite a bit. Similar situations in history have, not surprisingly, driven up demand for books:

But, if the DOJ is collecting the revenue on the other end, perhaps it doesn't care?

There is one other element here that seems worth mentioning. Up at the top, we pointed out that Snowden says he'd come back to face trial if he was allowed to present a public interest defense for his whistleblowing. The fact that the government still refuses to allow this also makes it nearly impossible for Snowden to even fight this lawsuit, because the government will quickly argue that he's a "fugitive" and thus not able to be represented in court (as it did with Kim Dotcom). That seems to highlight the wider fallout of the over-aggressive nature of the Espionage Act, and the inability to use a public interest defense. It makes it that much more difficult for someone like Snowden to defend his own 1st Amendment rights. And that seems unfortunate.

Either way, while I can understand why the DOJ is doing this, and recognize that it's likely to win, that doesn't mean that it's the right move or a good thing overall.

Filed Under: cia, doj, ed snowden, nsa, permanent record, pre-publication review

You'd Think The FBI Would Be More Sensitive To Protecting Encrypted Communications Now That We Know The Russians Cracked The FBI's Comms

from the guys,-encryption-matters dept

On Monday, Yahoo News had a bit of a new bombshell in revealing that the closures of various Russian compounds in the US, along with the expulsion of a bunch of Russian diplomats -- which many assumed had to do with alleged election interference -- may have actually been a lot more about the Russians breaching a key FBI encrypted communications system.

American officials discovered that the Russians had dramatically improved their ability to decrypt certain types of secure communications and had successfully tracked devices used by elite FBI surveillance teams. Officials also feared that the Russians may have devised other ways to monitor U.S. intelligence communications, including hacking into computers not connected to the internet. Senior FBI and CIA officials briefed congressional leaders on these issues as part of a wide-ranging examination on Capitol Hill of U.S. counterintelligence vulnerabilities.

These compromises, the full gravity of which became clear to U.S. officials in 2012, gave Russian spies in American cities including Washington, New York and San Francisco key insights into the location of undercover FBI surveillance teams, and likely the actual substance of FBI communications, according to former officials. They provided the Russians opportunities to potentially shake off FBI surveillance and communicate with sensitive human sources, check on remote recording devices and even gather intelligence on their FBI pursuers, the former officials said.

That all seems like a fairly big deal. And, it specifically targeted the FBI's encrypted communications phone system:

That effort compromised the encrypted radio systems used by the FBI’s mobile surveillance teams, which track the movements of Russian spies on American soil, according to more than half a dozen former senior intelligence and national security officials. Around the same time, Russian spies also compromised the FBI teams’ backup communications systems — cellphones outfitted with “push-to-talk” walkie-talkie capabilities. “This was something we took extremely seriously,” said a former senior counterintelligence official.

The Russian operation went beyond tracking the communications devices used by FBI surveillance teams, according to four former senior officials. Working out of secret “listening posts” housed in Russian diplomatic and other government-controlled facilities, the Russians were able to intercept, record and eventually crack the codes to FBI radio communications.

While this is all interesting in the "understanding what the latest spy v. spy fight is about," it's even more incredible in the context of the FBI still fighting to this day to weaken encryption for everyone else. The FBI, under both James Comey and Christopher Wray, have spent years trashing the idea that encrypted communications was important and repeatedly asking the tech industry to insert deliberate vulnerabilities in order to allow US officials to have easier access to encrypted communications. The pushback on this, over and over, is that any such system for "lawful access" will inevitably lead to much greater risk of others being able to hack in as well.

Given that, you'd think that the FBI would be especially sensitive to this risk, now that we know the Russians appear to have cracked at least two of the FBI's encrypted communications systems. Indeed, back in 2015, we highlighted how the FBI used to recommend that citizens use encryption to protect their mobile phones, but they had quietly removed that recommendation right around the time Comey started playing up the "going dark" nonsense.

Of course, it's possible that the folks dealing with the Russians cracking FBI encrypted comms are separate from the people freaking out about consumer use of encryption, but the leadership (i.e., Comey and Wray) certainly had to understand both sides of this. This leaves me all a bit perplexed. Were Comey and Wray so completely clueless that they didn't think these two situations had anything to do with one another? Or does it mean that they thought "hey, if we had our comms exposed, so should everyone else?" Or do they just not care?

Filed Under: communications, doj, encryption, fbi, going dark, protected communications, russia, russians

High-Level DOJ Official Latest Gov't Employee To Be Caught Watching Porn While On The Clock

from the it's-always-those-wankers-up-top,-he-said-literally dept

It's good to know government employees are hard at work. (This statement mainly applies to male employees.)

Throughout the past several years, internal investigations have rooted out a bunch of government employees who are wasting tax dollars by visiting websites and viewing content no doubt strictly prohibited by workplace policies. We're talking porn. Lots of porn. Just incredible amounts of porn consumption.

These apparently non-essential personnel have racked up some amazing porn stats. Some SEC employees were reprimanded (but not fired) for spending up to 98% of their workdays watching porn. An employee at the US Geological Survey's [cough] EROS Center visited 9,000 porn webpages en route to infecting the agency's computer system with malware. An EPA employee spent their work hours compiling a comprehensive library of over 9,000 pornographic images.

It's not just the federal government either. The City of Baltimore's Department of Public Works discovered an employee was spending about half the work week (~20 hours) watching porn on the clock. Over in the UK -- home of the always-impending porn filters -- government employees accessed porn 300,000 times over a 14-month period.

Porn consumption is apparently a government tradition -- one that spans the world and is celebrated by all levels of governing bodies.

Here's yet another data point, emanating from the US Department of Justice. (via NextGov)

The DOJ's Inspector General was tipped to some in-office porn viewing by a high-ranking official. This was no office drone. This was a Deputy Assistant Attorney General. Its investigation confirmed what was suspected: more porn consumption on a government computer.

From the one-page summary [PDF] released by the OIG:

The OIG investigation substantiated the allegation that the then DAAG viewed sexually explicit images on the DAAG’s government computers, in violation of DOJ policy. An OIG forensic examination of two DOJ computers issued to the DAAG determined that the computers contained data regarding numerous sexually explicit website searches, visits to websites hosting sexually explicit videos, sexually explicit search engine terms, and sexually explicit images.

The DAAG then lied about their porn habits. This is a bold move, considering lying to investigators is a criminal offense. Of course, it's only the rarest of government officials who are ever charged with lying to investigators. This one was no exception. The DAAG resigned before the investigation was concluded and no criminal charges were brought.

That's the quality of help we're paying for. They're people who should be held to a higher standard than private sector employees. But they never are. Fireable offenses rarely result in firing. Massive amounts of wasted time result in reprimands, rather than demotions or termination. And yet, we're supposed to act like the government has our best interests in mind when it engages in a tiny bit of oversight. These employees and their enablers are jerking far more than themselves around.

Filed Under: doj, porn, waste

DOJ Wants Apple, Google To Hand Over Names And Phone Numbers Of 10,000 App Users

from the government-still-in-the-pointless-acquisition-business dept

Let's hope this isn't the only scope discussed by the court handling this case, detailed here by Thomas Brewster of Forbes.

[T]he government wants Apple and Google to hand over names, phone numbers and other identifying data of at least 10,000 users of a single gun scope app, Forbes has discovered. It’s an unprecedented move: Never before has a case been disclosed in which American investigators demanded personal data of users of a single app from Apple and Google. And never has an order been made public where the feds have asked the Silicon Valley giants for info on so many thousands of people in one go.

Well, "made public" might be overstating things. The DOJ did not want this made public but the document it wanted sealed made it to the public docket briefly before being disappeared by the court system. It targets users of the Obsidian 4 app, which controls rifle scopes made by American Technologies Network Corp.

What the government claims this is about barely seems connected to what it's asking for.

The Immigration and Customs Enforcement (ICE) department is seeking information as part of a broad investigation into possible breaches of weapons export regulations. It’s looking into illegal exports of ATN’s scope, though the company itself isn’t under investigation, according to the order. As part of that, investigators are looking for a quick way to find out where the app is in use, as that will likely indicate where the hardware has been shipped.

Acquiring the data of thousands of innocent app users isn't going to benefit government investigators in any great way. Sifting through tons of garbage data doesn't make anyone's job any easier. What it will do is give the government a lot of information on people not suspected of engaging in criminal acts -- data it can hold onto indefinitely if no one's paying attention.

And it's a lot of information. The DOJ is seeking phone numbers and names linked to accounts that have downloaded the app. It also wants data on when users used the app. All this in furtherance of an investigation that doesn't seem to contain much investigating at this point.

It’s unclear just whom ICE is investigating. No public charges have been filed related to the company or resellers of its weapons tools.

With this data grab, the government will have a chance to explore its options. If investigating weapon manufacturers isn't proving fruitful, maybe someone else in the 10,000+ pool of "suspects" will prove to be a more interesting target. The government isn't above fishing for criminal activity when performing supposedly-targeted searches. And if it wanders too far afield from its original aim, it can always argue the "fish" at the end of its 10,000 lines would have been "inevitably discovered" during the course of its fishing expedition.

Unfortunately, we don't know (yet) whether this ridiculous data request was granted. If a judge somehow managed to sign off on this, there's a good chance it will be rethought once Google or Apple tell the government they're not going to be handing over massive amounts of data the government hasn't shown it needs, much less has earned access to.

Filed Under: apps, doj, fishing expedition, gun scope, ice, obsidian 4, rifle scopes, weapons export
Companies: american technologies network corp., apple, atn, google

Much Of The Assault On 'Big Tech' Is Being Driven By 'Big Telecom'

from the inauthentic-outrage dept

Over the last few months, Google, Amazon, and Apple have all taken a significant beating on Wall Street amidst rumblings of looming antitrust investigations by the DOJ and FTC. Google, we're told, is subject of a looming antitrust probe by the DOJ. Amazon, we've learned, is facing growing scrutiny from the FTC. Apple stock also briefly did a nose dive on the news that it too may soon be subject to a significant new antitrust probe.

On its surface, many of these actions aren't all that surprising. After all, experts have noted for a decade than US antitrust enforcement has grown toothless and frail, and our definitions of monopoly power need updating in the Amazon era. Facebook's repeated face plants on privacy (and basic transparency and integrity) have only added fuel to the fire amidst calls to regulate "big tech."

But while Silicon Valley faces an endless cavalcade of outrage, the telecom sector is suddenly seeing no scrutiny whatsoever. Whether it's the speed at which the problematic T-Mobile merger is being shoveled through the DOJ and FCC or the blind eye being turned to major telecom privacy scandals (like location data), telecom lobbyists have been on a successful tear convincing well-heeled DC lawmakers to ignore the massive, obvious monopoly, privacy, and competition issues inherent in telecom to focus exclusively on the problems in "big tech."

Yet somehow, this asymmetrical policy paradigm is still treated as entirely coincidental in press coverage. Only recently have some news outlets started to notice how well things have been going for telecom lately in DC (Axios calls it telecom's "sweet summer of revenge"). Outlets have even started to finally realize that with former telecom lawyers now running the FCC and DOJ (Ajit Pai and Bill Barr), that is not coincidentally being reflected in federal policies attempting to hamstring telecom's competitors:

"In a June speech, DOJ Antitrust Division Chief Makan Delrahim laid out ways his agency could could go after Big Tech for anti-competitive behavior. In a June Senate hearing, FCC Chairman Ajit Pai said, “The greatest threat to a free and open internet has been the unregulated Silicon Valley tech giants that do, in fact, today decide what you see and what you don’t,” he said."

It's routinely understated how telecom lobbying, not a sincere worry about market power or privacy, is what's driving much of this current policy paradigm in DC (including much of the hyperventilation over nonexistent Censorship of Conservatives). The telecom sector is pushing hard into an online advertising sector traditionally dominated by Silicon Valley. As such, telecom lobbyists have spent several years now pushing to hamstring their direct competitors with the help of cash-compromised lawmakers and full blown regulatory capture.

That includes successfully convincing government that a sector filled with natural, historically-predatory monopolies should see no guard rails whatsoever (see the killing of net neutrality and the neutering of the FCC as example A). Yet somehow, there are still a lot of folks in tech policy circles who see the lopsided focus on "big tech" as entirely authentic, and any failure to police telecom as somehow coincidental. But folks in DC (like former FCC lawyer Gigi Sohn), are well aware that much of this current policy paradigm is highly-produced theater and, shockingly, all about money:

Again, none of this is to say that there aren't massive problems with Silicon Valley giants and plenty of authentic calls for reform. But it is a reminder that an oversized portion of the current anti big tech sentiment in DC is telecom driven. Intellectual inconsistency and campaign finance data usually makes it clear which lawmakers are telecom sector marionettes. More often than not consumer rights, market power, or healthy competition are the very last thing on the minds of those pushing lopsided regulatory solutions to a "big tech" problem they don't actually care all that much about.

Filed Under: antitrust, doj, ftc, internet, telecom
Companies: amazon, apple, at&t, comcast, facebook, google, verizon

Federal Prosecutor Blames Philadelphia DA For Shootout That Wounded Six Philly PD Officers

from the and-zero-respect-for-the-general-public dept

Inside Attorney General William Barr's long rant about the lack of respect for police officers in this nation was a shot or two at recently-elected District Attorneys (like Philadelphia's Larry Krasner). Barr feels -- like many of the police union reps he was speaking to -- DAs that institute reforms, reduce incarceration, and punish police officers for misconduct are on the wrong side of history.

There is another development that is demoralizing to law enforcement and dangerous to public safety. That is the emergence in some of our large cities of District Attorneys that style themselves as “social justice” reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.

These anti-law enforcement DAs have tended to emerge in jurisdictions where the election is largely determined by the primary. Frequently, these candidates ambush an incumbent DA in the primary with misleading campaigns and large infusions of money from outside groups.

Once in office, they have been announcing their refusal to enforce broad swathes of the criminal law. Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution. And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient. So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.

A department that frequently touts the power of prosecutorial discretion is angry because prosecutors are exercising discretion. And it's a bit rich for AG Barr to complain about "revolving door justice" when law enforcement agencies all over the nation continue to hire officers fired for misconduct and abuse by other agencies.

The administration's back-the-blue attitude is on full display. Barr's angry speech about the respect he believes officers are owed has trickled down to the lower ranks of federal prosecutors. In the wake of a shootout between a criminal suspect and several Philadelphia police officers, US Attorney William McSwain decided to take his own shot at Philadelphia DA Larry Krasner.

What I witnessed last night was true heroism by the Philadelphia police. But the crisis was precipitated by a stunning disrespect for law enforcement - a disrespect so flagrant and so reckless that the suspect immediately opened fire on every single officer within shooting distance. Only by the grace of God did they survive.

Where does such disrespect come from?

There is a new culture of disrespect for law enforcement in this City that is promoted and championed by District Attorney Larry Krasner - and I am fed up with it.

It started with chants at the DA's victory party - chants of "F*** the police" and "No good cops in a racist system."

We've now endured over a year and a half of the worst kinds of slander against law enforcement - the DA routinely calls police and prosecutors corrupt and racist, even "war criminals" that he compares to Nazis.

This vile rhetoric puts our police in danger. It disgraces the Office of the District Attorney. And it harms the good people in the City of Philadelphia and rewards the wicked.

While McSwain was bitching about a prosecutor he doesn't like, DA Larry Krasner was praising the Philadelphia PD -- which saw six of its officers wounded -- for their handling of the volatile situation.

McSwain also suggested the federal branch would step in to directly control the actions of the Philly DA. His exact words were "We're going to provide some adult supervision." As Adam Steinbaugh points out, that's not how federalism works. Someone must have pointed that out McSwain, who walked back this comment (but none of his press conference remarks) less than two hours later.

Perhaps the federal prosecutor was just being reflexively defensive. The person who allegedly shot all of these cops was a federal snitch who got a break on his most recent prison sentence because of how helpful he was.

McSwain failed to mention, however, that alleged shooter Maurice Hill’s interactions with law enforcement predated Krasner taking office. Nor did McSwain acknowledge that the 36-year-old Hill, who on Saturday was charged by Krasner’s office with attempted murder and multiple counts of aggravated assault related to the incident, has been a federal informant for years, according to documents obtained by The Appeal.

McSwain may have known this news would eventually come out and needed to get out ahead of the narrative before it flipped. Or he may have been blissfully unware and simply decided to engage in the DOJ's "criticizing law enforcement kills cops" politicking. Neither move makes McSwain or police officers look any better or does anything to close the divide between the public and its public servants.

But this is the narrative that's being aggressively pushed with Bill Barr running the DOJ. Anyone who isn't willing to shower cops with respect and adulation is an enemy -- even those basically playing for the same team. There will be no prosecutorial discretion under this administration. There will only be as much cruelty and punishment as it can possibly mete out. Every time something bad happens to a cop, some federal law enforcement rep will be there to claim it was disrespect -- rather than guns and bullets -- that hurt or killed the officer.

Filed Under: adult supervision, doj, federal informant, larry krasner, philadelphia, police shooting, william barr, william mcswain

DOJ/Copyright Office File An Amicus Brief In Support Of Led Zeppellin

from the copyright-is-turning-upside-down dept

As announced by the Copyright Office's General Counsel, the DOJ and the Copyright Office have now filed an amicus brief in the 9th Circuit in support of Led Zeppelin in its never ending legal dispute with the estate of Randy Wolfe (aka Randy California) over whether or not Led Zeppelin infringed on the copyright of the Spirit song "Taurus" with their classic "Stairway to Heaven." We've discussed this case at length over the years. If you were to just listen to the recordings of Taurus and Stairway to Heaven, you can definitely hear some similarities. Yet, as we noted, you can hear the same similarities in J.S. Bach's Bourree in E Minor, which I believe predates both of those other songs. This video also shows a bunch of other songs (most predating Taurus) that have the same basic melody.

There were a lot of issues in the case, including the unfortunate fact that the original court did make some mistakes, even if the overall outcome -- that Led Zeppelin didn't infringe on the Taurus composition -- seemed like the appropriate outcome. The 9th Circuit in reopening the case, has a chance to fix the problems of the original. But it also has the chance to muck things up.

The case is so strange that even the RIAA and the NMPA stepped in to warn against overprotection by copyright. Let me repeat that. The RIAA argued to a court that you could go too far in protecting copyright. Really.

And here, the Copyright Office and the DOJ are on the right side again. The government's brief is focused on the more narrow issue of what the copyright at issue here actually covers. As we've discussed, for musical works prior to 1973, you could only get a copyright in the "composition" and not the recording. One of the arguments in this case is that Randy Wolfe's estate argued that the copyright of Taurus, registered in 1968, somehow did encompass the recording (and that said recording should be played at the trial), as opposed to just showing the sheet music of the composition that had been deposited with the Copyright Office. As we discussed in earlier posts, this is crazy, as the composition copyright and the recording copyright are two separate things, and there was no sound recording copyright in 1968... so you don't just get to pretend that the composition copyright magically covers the sound recording.

Even more to the point: playing the recording can be completely misleading, because it would include non-copyright covered material, but a jury would be unlikely to be able to parse out which parts are covered by copyright and which were not.

And -- perhaps surprisingly -- the Copyright Office and the DOJ agree. In fact, they note that the various performance elements are not covered by copyright, and when you remove them, what's left is fairly basic and not covered by copyright either:

The copyright at issue here was obtained, as the Copyright Act then required, by depositing a “complete copy” of the work with the Copyright Office. The copyright that was created by that deposit extends only to the work that was deposited with the Copyright Office. While there may be other, related works in which the author or his successors may hold or have held rights, the federal copyright at issue here extends only to the work that was deposited. The district court and the panel thus properly concluded that “performance elements,” which might have been present when the song was performed or recorded but were not reflected in the deposited sheet music, are not protected by the copyright registered with the Copyright Office.

Once those performance elements are removed, the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale. Those elements may not themselves be copyrighted. The selection and arrangement of a small number of standard elements such as these is entitled, at most, to a “thin” copyright that protects only against virtually identical copying. Because the works at issue here are not virtually identical, the district court’s judgment should be affirmed.

The brief here is quite readable, and more or less mocks the arguments of the plaintiff for not recognizing that the same song can have a variety of different copyrights:

Plaintiff’s suggestion that the copyrighted work is something other than the work deposited with the Copyright Office appears to be largely premised on the mistaken view that there cannot be multiple, distinct copyrightable works that are all versions of the same song. The statute expressly contemplates that there can be.

It is not often that I find myself on the same side of a case with the RIAA, Copyright Office and the DOJ. Especially regarding a copyright case. But here we are.

There is still time for the 9th Circuit to mess things up even worse, though. They're good at that when it comes to copyright. Also, no one tell Donald Trump that his DOJ just supported a UK band over an American one.

Filed Under: amicus brief, composition, copyright, copyright office, doj, led zeppelin, spirit, stairway to heaven, taurus

The Attorney General Who Doesn't Respect Or Comply With His Oversight Wants Citizens To Respect And Comply With Cops

from the enforcing-hypocrisy-from-the-top-down dept

The "law and order" administration is flexing its muscles. New Attorney General William Barr has been particularly vocal since his appointment, going after device encryption and the supposedly-dangerous "disrespect" for police.

Barr's public statements -- the latter of which was delivered to a very receptive audience composed of police union reps -- have made it clear his DOJ is going to carry out Trump's back-the-blue mandates. Law enforcement officers will receive the federal government's seal of endless approval, as well as its benefit of a doubt when things go badly.

Things go badly quite often. Cops are still killing more than 1,000 people (and nearly 10,000 dogs) every year, even as crime rates remain at historic lows. Barr's message to America was: comply, shut up, stop complaining. If you do somehow still feel your rights have been violated, you're welcome to lawyer up and attempt to sue your way past layers of immunity and multiple, ultra-flexible warrant exceptions.

But while this administration talks a good game about respect for law and order, it certainly doesn't show the respect it believes is owed to the nation's law enforcement officers. Marcy Wheeler points out this hypocrisy to devastating effect in her post dissecting (and recasting) Barr's pro-police, anti-everyone else rant.

Barr wants the public to comply immediately and without question when interacting with government employees empowered to enforce the law. But that's something he's not interested in doing himself. Replace "police" with entities empowered to police the Executive branch -- as Wheeler does here -- and Barr starts looking like the Great Unwashed he's complaining about. (Wheeler's alterations to Barr's original speech are in bold.)

The anti-oversight narrative is fanning disrespect for the law. In recent years, we have witnessed increasing toleration of the notion that it is somehow okay to resist oversight.

Previously, it was well understood that, regardless of the circumstances, legal resistance is unacceptable because it necessarily leads to a spiral of escalating resistance that endangers the ability of Congress to oversee the Executive. For that reason, virtually all jurisdictions have made resistance a serious crime.

Not too long ago influential public voices — whether in the media or among community and civic leaders — stressed the need to comply with oversight commands, even if one thinks they are unjust. “Comply first” and, if you think you have been wronged, “complain later.”

But we don’t hear this much anymore. Instead, when an incident escalates due to a suspect’s legal resistance to oversight, that fact is usually ignored by the commentary. Congress’ every action is dissected, but the suspect’s resistance, and the danger it posed, frequently goes without mention.

There's a bit more in Wheeler's post, so definitely click through and check it out. Or just grab almost any part of Barr's speech and play Executive branch mad libs with it. The end result is lengthy rant condemning people like William Barr for doing the things Barr is currently doing. Sad!

Filed Under: attorney general, congress, doj, respect police, rule of law, subpoenas, william barr

Appeals Court Gives Gov't One More Chance To Lock Up Men For Producing An 'Illegal' Drug Its Own Chemist Said Wasn't Illegal

from the keep-your-chins-up,-g-men! dept

How many chances does the government get to try to convict a couple of people for selling a drug analogue the DEA's own chemist said wasn't "substantially similar" to any controlled substance? Apparently the government will get at least one more swing at the plate, having batted .500 during its first two tries.

In 2012, the DEA raided Zencense, a business owned by Charles Ritchie and Benjamin Galecki. They were charged with conspiracy to distribute controlled substance analogues. The "spice" made by Zencense used XLR-11 and UR-144 as active ingredients. The government claimed these were analogues of JWH-018, which is a controlled substance.

The defendants argued that their spice was not an analogue of a controlled substance. If true, this sunk the government's case, because the conspiracy charges relied on the "knowing" distribution of illegal drug analogues.

The government claimed XLR-11 and UR-144 were pretty much the same thing and pretty much identical to JWH-018. This testimony was undercut by one of the DEA's own chemists, who had stated in other prosecutions that UR-144 was not an analogue of JWH-018. Not only that, but the chemist's professional opinion on this subject was freely available online, as part of a handout on litigating synthetic drug cases.

The defendants hoped to have the chemist testify on the differences between these substances, which would likely have resulted in them being found innocent of the conspiracy charges. The trial court denied this request, resulting in the defendants' first appeal.

On appeal, the Fourth Circuit sided with the defendants, finding the government could not claim the chemist's testimony was "privileged" -- not when it had relied on it in other prosecutions. It sent the case back down to the district court to reconsider the admissibility of this exculpatory evidence.

The case is now back in the Fourth Circuit Appeals Court, thanks to the lower court deciding once again that this testimony isn't relevant and would have had no effect on the outcome of the case. That the outcome was one mistrial and one hung jury (one that was un-hung with an Allen charge) seems to have escaped the attention of the court.

The Appeals Court [PDF] wants to make sure this doesn't happen again. The lower court looked at the testimony that directly contradicted the assertions made by the government and shrugged.

On remand, the district court concluded that Dr. Berrier’s testimony was not material to Defendants’ case because it would have been “merely cumulative” to testimony from Defendants’ two other expert chemists. Ritchie III, 2018 WL 4693811, at *4. The district court determined that those chemists used the same methods and came to the same conclusion as Dr. Berrier, and that his “position at the DEA would not provide any new relevant information” to the jury. Id. The court accordingly held that Dr. Berrier’s exclusion from the trial did not violate Defendants’ Sixth Amendment compulsory process rights.

But it wouldn't be merely "cumulative." Yes, the defendants brought in their own expert witnesses but their opinions were pretty much nullified by statements the government's lawyers made during cross-examination.

Barred from questioning Dr. Berrier, Defendants relied on the expert testimony of two chemistry professors, Drs. Croatt and Dudley, who gave the same opinion that Dr. Berrier would have given—an opinion that contradicted Dr. Trecki’s. During cross-examination, the Government questioned Defendants’ “hired guns” about the compensation they received for testifying. In convicting Defendants, the jury ultimately rejected Drs. Croatt and Dudley’s expert opinion about XLR-11 and JWH-018.

The lower court claimed testimony from a DEA chemist about the non-similarity of the contested substances "would not have altered the trial's outcome." Nothing could be further from the truth, the Appeals Court explains.

[W]e disagree with the district court’s analysis of the “not merely cumulative” component, as we conclude that Dr. Berrier’s testimony was qualitatively different from the testimony of the other defense witnesses. In stark contrast to Drs. Croatt and Dudley, Dr. Berrier was not paid outside his DEA employment to form his opinion about XLR11’s chemical similarity to JWH-018. Nor would Defendants have paid him to testify at trial. Consequently, the Government could not have impeached Dr. Berrier in front of the jury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached on that ground made his testimony unique and particularly relevant, not cumulative.

[...]

Also unlike Drs. Croatt and Dudley, Dr. Berrier could have rebutted the testimony of Dr. Trecki, the Government’s DEA expert, with his own knowledge of the DEA’s processes and analyses. His expert testimony, which diverged from Dr. Trecki’s, could have shown the jury that the DEA’s own scientists could not agree on the substantial similarity of the chemicals at issue. Drs. Croatt and Dudley could not have provided that type of rebuttal testimony.

The testimony is material, not cumulative. And the error in disallowing it was far from "harmless." As the Appeals Court points out, the DEA expert's testimony would have introduced a significant amount of reasonable doubt -- enough to turn a hung jury into an exoneration.

Unfortunately, this means the defendants have to go through all of this again. Their convictions have been vacated but the government will get a third chance to put them behind bars. The government is failing forward and it's facing people who don't have the luxury of taxpayer-funded, inexhaustible resources.

Filed Under: 4th circuit, benjamin galecki, charles ritchie, dea, doj, expert witness, synthetic drugs