BeldarBlog

In 2011, Obama freed NSA from restraints on domestic spying that Dubya requested in 2008

You will search this WaPo story, entitled "Obama administration had restrictions on NSA reversed in 2011," without success for any mention of the Forty-Third President of the United States of America, even though his administration did not depart the White House until January 20, 2009. And yet:

The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material.

In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinion by U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court.

What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.

I think my post's headline above ought to have been the Washington Post's headline too — but surely somewhere in this report, they ought to have at least acknowledged the contrasting positions of the only two post-9/11 administrations.

Is Maj. Nidal Hasan cooperating with military prosecutors in an attempt to achieve "suicide by court-martial"?

Law enforcement officials are familiar with the typical pattern of "suicide by cop." But if accurate, this news article (which the Austin American-Stateman continues to update since I first saw it) suggests that Maj. Nidal Hasan may be trying to commit jihadi suicide by court-martial:

Maj. Nidal Hasan’s standby defense attorneys said Tuesday morning that they believe the accused Fort Hood shooter is "effectively acting in concert with prosecutors in achieving a death sentence."

In a motion filed late last night, Lt. Col. Kris Poppe said that Hasan’s behavior during jury selection, when he made no effort to keep potential jurors who questioned the death penalty, as well as his opening statement in which he took responsibility for the shootings show that he is trying to "remove impediments and obstacles to the death penalty."

Poppe and the two other military appointed defense lawyers asked to be removed from the case, but said they also stand ready to represent Hasan "if he decides he wants to fight the death penalty." ...

In American law (including military law), the right to defend oneself — even when that's a stupid and even suicidal path to choose — is guaranteed under the Constitution. Hasan has invoked that right and has persuaded the presiding judge that he's competent to make that decision, so he's defending himself.

But as would also be nearly universal even in the civilian criminal justice system, the judge appointed "standby counsel" who would observe the proceedings and continue to counsel with Hasan privately to whatever extent Hasan permits that. The notion is that their private advice — which will always almost certainly be, "You're screwing this up, you're going to get yourself executed, let me please take over as your advocate in court to try to save your life!" — might eventually be heeded. And then the standby counsel is as prepared as practicable to immediately step in as the defendant's active advocate(s).

My guess is that what's happening today is that the presiding judge, Col. Tara Osborn, is going to re-visit the subject of Hasan's competency to make the decision to continue to represent himself. If only for purposes of future appeals, the judge will want to make a record of having done that (although the jurors won't know anything about it).

This same sort of thing has happened in civilian death penalty cases before — albeit not usually with the same jihadi motivations that Hasan has. But neither the civilian or military justice systems permit defendants to "game" them by first insisting on self-representation and then later insisting that they should get a new trial because their trial counsel (i.e., they themselves acting as their own lawyers) rendered constitutionally ineffective assistance. Basically, if the record shows that the choice of self-representation was freely made by someone legally competent to make it, both trial and appellate courts will let the consequences of that choice lead in their natural direction — even though the result at least superficially looks like state-assisted suicide.

It's also interesting that the standby counsel are asking permission to withdraw from that role. That's their putting on record their recognition that Hasan is ignoring everything they tell him, and that he's making it impossible for them to do their job effectively, but they will leave to the judge's decision whether some replacement might be able to do better. That's the proper and ethical thing for them to have done.

My guess is that the judge will probably reconfirm her earlier ruling that Hasan is mentally competent to make the decision to represent himself. The judge will repeat, on the record, her previous cautions and admonitions and get Hasan to reconfirm his decision on the record — again, outside the jury's presence. The judge will then probably politely deny the standby counsel's suggestion that they be replaced and tell them to keep standing by and doing their best to make themselves relevant.

I am content in all of this. The wheels of justice are slow but grind exceedingly fine. And in this battlefield in the war on terror — and that's exactly how Hasan himself sees the courtroom he's in — the terrorist is once again eager to be killed. Unlike the battlefield soldier, the military judge and jurors presiding over Hasan's trial aren't eager to kill him, but rather to see justice done and be seen to be done. But the end result is going to be the same.

Reactions upon reading today's court ruling against Apple in the ebook price-fixing conspiracy case

I ought to have simply done this as a blog post to begin with, but:

When I started reading U.S. District Judge Denise Cote's written opinion in United States v. Apple Inc. this evening, I originally only intended to post a link to the opinion, with a very short comment, on Facebook, mostly for a few of my legally-inclined friends. But then I started leaving comments on my FB post, and it turned into a sort of "live-blogging" as I worked through the opinion.

Eventually I decided I ought to re-post it all here for a broader audience, with apologies for the disjointed format:

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Apple lost in court in New York today on the ebook antitrust case brought jointly by the Justice Department and several states (including Texas). U.S. District Judge Denise Cote's opinion is 160 pages (double-spaced), so it will take me a while to read it. But from the summary of findings (beginning on page 9 of the .pdf file), it looks like a major defeat for Apple. This paragraph (from page 11) seems key in my initial skim:

Apple and the Publisher Defendants shared one overarching interest — that there be no price competition at the retail level. Apple did not want to compete with Amazon (or any other e-book retailer) on price; and the Publisher Defendants wanted to end Amazon’s $9.99 pricing and increase significantly the prevailing price point for e-books. With a full appreciation of each other’s interests, Apple and the Publisher Defendants agreed to work together to eliminate retail price competition in the e-book market and raise the price of e-books above $9.99."

Here's a link if you're interested:

http://www.justice.gov/atr/cases/f299200/299275.pdf

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I hadn't realized that 38 different states had joined in this litigation, but I'm pleased to see that the Texas and Connecticut attorneys general were "liason counsel for the plaintiff states" (i.e., carried the ball and probably did most of the work for all the other state plaintiffs).

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The financial impact on Apple is uncertain, but treble damages loom: "The Plaintiffs have shown that Apple conspired to raise the retail price of e-books and that they are entitled to injunctive relief. A trial on damages will follow." And at that trial the question won't be whether Apple has to pay — today's ruling effectively decides that against Apple — but just how much, and to whom.

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No jury was involved in this, by the way. By consent of all parties, there was a bench trial in which Judge Cote served as factfinder in lieu of a jury.

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CEO Les Moonves of CBS (which owns Simon & Schuster, one of the defendants who settled before trial) is pegged as a major conspirator. I remember him from Rathergate.

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In footnote 38 on page 71, Judge Cote labels Apple Sr VP Eddy Cue's trial testimony as not being "credible" — which is the polite way to say she thinks Cue was lying under oath on at least some points. The factual recital is just brutal. Apple comes across as the proverbial 800 pound gorilla who bullied not only the consuming public and Amazon (which was fighting to keep ebook prices low), but Apple's fellow conspirators, five of the six big publishing companies. Appellate courts are particularly reluctant to overturn credibility determinations by the factfinder, whether that's been a judge or a jury. Apple's going to have a hard time digging its way out of the hole it's dug for itself.

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From pp. 85-86 of the .pdf file:

On January 27, Jobs launched the iPad. As part of a beautifully orchestrated presentation, he also introduced the iPad’s e-reader capability and the iBookstore. He proudly displayed the names and logos of each Publisher Defendant whose books would populate the iBookstore. To show the ease with which an iTunes customer could buy a book, standing in front of a giant screen displaying his own iPad’s screen, Jobs browsed through his iBooks “bookshelf,” clicked on the “store” button in the upper corner of his e-book shelf display, watched the shelf seamlessly flip to the iBookstore, and purchased one of Hachette’s NYT Bestsellers, Edward M. Kennedy’s memoir, True Compass, for $14.99. With one tap, the e-book was downloaded, and its cover appeared on Jobs’s bookshelf, ready to be opened and read.

When asked by a reporter later that day why people would pay $14.99 in the iBookstore to purchase an e-book that was selling at Amazon for $9.99, Jobs told a reporter, “Well, that won’t be the case.” When the reporter sought to clarify, “You mean you won’t be 14.99 or they won’t be 9.99?” Jobs paused, and with a knowing nod responded, “The price will be the same,” and explained that “Publishers are actually withholding their books from Amazon because they are not happy.” With that statement, Jobs acknowledged his understanding that the Publisher Defendants would now wrest control of pricing from Amazon and raise e-book prices, and that Apple would not have to face any competition from Amazon on price.

The import of Jobs’s statement was obvious. On January 29, the General Counsel of [Simon & Schuster] wrote to [the CEO of S&S, Carolyn] Reidy that she “cannot believe that Jobs made the statement” and considered it “[i]ncredibly stupid.”

Yeah, I agree that it was incredibly stupid. And arrogant. Jobs was bragging in public about the price-fixing conspiracy that his company had organized and executed to fix ebook prices. The reason the publishers were threatening to withhold their books from Amazon altogether was because that was the key term in the conspiracy that Apple was proposing. Unless Amazon agreed to knuckle under to the "agency pricing" model that Apple wanted (because it would eliminate retail price competition in ebooks, to Apple's benefit, and let Apple compete with Amazon on the basis of hardware, never price) — Amazon wouldn't be able to sell ebooks at any price.

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This whole fact pattern would never make a good exam question in an antitrust course in law school. It's way too easy. There's an arsenal of smoking guns. It's like no one at Apple ever heard of the Sherman Act.

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Maybe you aren't an ebook buyer, and because you only buy paper books, you think this conspiracy didn't affect you. Nope (p. 95): "The Publisher Defendants raised more than the prices of just New Release e-books. The prices of some of their New Release hardcover books were also raised in order to move the e-book version into a correspondingly higher price tier."

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From p. 103, Jobs is quoted as making the following brag — actually, a stunning admission to which he was blinded by his egotism — to his biographer:

Amazon screwed it up. It paid the wholesale price for some books, but started selling them below cost at $9.99. The publishers hated that — they thought it would trash their ability to sell hardcover books at $28. So before Apple even got on the scene, some booksellers were starting to withhold books from Amazon. So we told the publishers, “We’ll go to the agency model, where you set the price, and we get our 30%, and yes, the customer pays a little more, but that’s what you want anyway.” But we also asked for a guarantee that if anybody else is selling the books cheaper than we are, then we can sell them at the lower price too. So they went to Amazon and said, “You’re going to sign an agency contract or we’re not going to give you the books.”

Yes, the customer pays a little more, but that's what you want anyway — if you're running a conspiracy to eliminate market competition via illegal price-fixing agreements, that is indeed exactly what you want.

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Key finding (from page 120, citation omitted):

In sum, the Plaintiffs have shown not just by a preponderance of the evidence, but through compelling direct and circumstantial evidence that Apple participated in and facilitated a horizontal price-fixing conspiracy. As a result, they have proven a per se violation of the Sherman Act. If it were necessary to analyze this evidence under the rule of reason, however, the Plaintiffs would also prevail.

That's a "belt and suspenders" finding: Judge Cote thinks (and I agree) that this is a "per se" case because of the type of conspiracies and restraints involved and where the players all were in the various supply chains. But she's also saying that even if she's wrong about that point, and even if Apple gets the benefit of the more flexible "rule of reason" standard instead of the "per se" standard, Apple would still lose.

That makes it much harder for Apple to win on appeal.

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This is just a methodical thrashing. In every appeal, the first thing the appellate judges (and their law clerks) read is the district judge's opinion. After reading this one, I think almost any appellate judge is going to be favorably impressed with its comprehensiveness and clarity. It's the kind of opinion after which you exhale and say, "Whew! That's going to be hard to fault in any significant way."

Apple is going to have a very tough row to hoe on appeal. I think they're well and truly hosed in this case, although it's not likely to threaten their existence as a company or even delay the next iPhone-whatever.

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Footnote 63 (at p. 135) is quite droll, as antitrust humor goes:

Apple uses the term 'competitive' to convey that it wanted its prices to be the lowest in the marketplace, not to convey that it wanted prices arrived at through the process of competition.

That means: "We want all the business, but at a higher, fixed price."

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In footnote 66 on p. 143, Judge Cote labels individual Apple and Publisher Defendant executives as "noteworthy for their lack of credibility" — which I would paraphrase as meaning they're "liars lying under oath and they can't be believed."

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Okay, finished. The last 30+ pages are devoted to anticipating every argument Apple can be expected to make on appeal and methodically rebutting or undercutting each of them. Judge Cote is a Clinton appointee who's senior status, so she has a lot of experience; and she's clearly learned how to write opinions in a way that make them particularly hard to reverse. The smartest and best federal district judges are usually the best advocates for why their own written decisions ought be upheld — they try to anticipate how the appeal is likely to proceed, and to make their decisions as nearly "bulletproof on appeal" as possible (which is to say, clear, well-reasoned, and correct). And this may be a candidate for the Second Circuit to "affirm on the basis of the district court's opinion" — basically the appellate court, instead of writing its own opinion, just saying, "Yeah, what she said." It's a very high compliment to a district judge when that happens in an important case.

Beldar's instant analysis of today's SCOTUS ruling in Fisher v. University of Texas

You will see lots of press today about the United States Supreme Court's decision this morning in Fisher v. University of Texas at Austin, which was widely anticipated to be the biggest development in affirmative action law since Grutter v. Bollinger and Gratz v. Bollinger, the University of Michigan cases from 2003.

A lot of that press commentary will be wrong, and quite a bit of it will be both wrong and biased.

I therefore submit to you this quote, which comes not from the majority opinion itself, but from the official court syllabus. It's dense stuff, but those of my readers with legal training can figure out exactly what happened just from this paragraph-plus-one-sentence (citations omitted):

... The [federal appellate courts] must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision to use race as an admissions factor “was made in good faith.” It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption. It thus undertook the narrow tailoring requirement with a “degree of deference” to the school. These expressions of the controlling standard are at odds with Grutter [v. Bolliger]’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’” Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here. The [Supreme] Court vacates the Fifth Circuit’s judgment. But fairness to the litigants and the courts that heard the case requires that it be remanded [i.e., sent back to the lower courts] so that the admissions process can be considered and judged under a correct analysis. In determining whether summary judgment in the University’s favor was appropriate, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

For those of you who lack legal training, I will now give you my hipshot reaction. Others will and do disagree, and your mileage may vary. (Mixed metaphor warning! Beware!)

This is, in both form and substance, a loss for the University of Texas in this case, and for those who support race-based preferences more generally. But it is a mostly-procedural loss, not a blockbuster opinion. It is a signal of things to come, but not an earthquake.

Instead of announcing some big new substantive rule that will turn all affirmative action law on its head, the majority chose to emphasize the way the ballgame was supposed to be refereed by the district and circuit courts. My rough paraphrase: "You ignored the rules we told you about before, so go back and do it the right way, paying attention to those rules and leaving tracks showing you did so." And that's very, very different from saying, "We're changing all the rules!"

And the majority's choice to play small-ball rather than swing for the fences is also probably why it's a seven/one decision, with only Justice Ginsburg dissenting (very briefly and somewhat mildly). I seriously doubt we'd have seen Justices Breyer and Sotomayor going along with a more substantive and sweeping ruling.

My hunch is that this limited-scope decision is largely Chief Justice Roberts' doing, part of a deliberate strategy being played out over years and, indeed, presidencies. The narrower, more procedural ruling certainly was likely to have been more useful in keeping Justice Kennedy aligned with the Chief and Justices Scalia, Thomas, and Alito; or, stated the other way, Justice Kennedy might have been more likely to bolt if the other conservatives all wanted to go the route recommended by Justice Thomas (overruling Grutter outright).

But my guess — utter speculation, mind you — is that the Chief was content to use this case as an intermediate step, a signal of a greater SCOTUS skepticism about racial preferences, but something that still measures pretty far down on the jurisprudential Richter scale.

Note well that Justice Kagan's recusal turns into a non-event with the 7/1 margin. By assigning this opinion to Justice Kennedy to write (even with a narrower, more procedural ruling), the Chief has pulled Justice Kennedy a bit farther into the conservative camp on this particular issue. And if the next case breaks back down into a more traditional and predictable 5/4 split (with Justice Kagan joining Justices Ginsburg, Breyer, and Sotomayor in upholding racial preferences), there will nevertheless be a clear, single majority opinion with strong precedential value (at least relative to the kind of split decision mess we've so often seen on these cases, Bakke being the poster child for SCOTUS dysfunction).