Author Archives: Michael Froomkin

None Dare Call it Perjury

Posted on May 2, 2011 by Michael Froomkin

I admit crim pro is not my strong suit, but why isn’t the conduct described in Islamic Shura Council v. FBI (C.D. Cal. Apr. 27) simple perjury by a government official?

The Government’s in camera submission revealed that the Government initially misled the Court in two material respects. First, the Government’s representations regarding its use of “outside the scope” were inaccurate. The Government initially represented to the Court that the Government provided all information that “include[d] any reference to plaintiffs in any document in any file,” and any information withheld as “outside the scope” of Plaintiffs’ request was “non-responsive.” (Opp’n to Pl.’s Mot. Summ. J. at 3, 11.) Mr. Hardy’s second declaration stated that, in truth, documents “that would otherwise be considered to be responsive to plaintiffs’ request” were excluded from production or redacted as “outside the scope.” (Second Hardy Decl. ¶ 5.) Second, the Government’s representations regarding the number of responsive documents were false. The Government previously represented that it had identified only a limited number of documents responsive to Plaintiffs’ FOIA request. (First Hardy Decl. ¶¶ 19, 31–43, 45–46.) Mr. Hardy’s second declaration acknowledged that the Government had identified a large number of additional responsive documents, but that the Government did not disclose the existence of these other documents. (Second Hardy Decl. ¶ 13.)

The first declaration was, if I am reading it right, under oath. And there were lawyers involved in many stages of this too.

(Case spotted via Volokh. Neither he nor the judge call it perjury.)

Posted in Law: Criminal Law | 2 Comments

Timing

Posted on May 2, 2011 by Michael Froomkin

I remember flying up to DC shortly after they turned the air traffic control system back on post-9/11. People here in Miami were weird about it — they treated it as a very dangerous thing to do. For some reason I didn’t feel threatened at all. That said, the experience at the airport, in which a great effort was made to search everything, and in the air, in which for the first time we told to stay in our seats for the last 30 minutes of the approach to DC, was decidedly off-putting. The atmosphere on the plane was oddly strained.

Now, once again I’m flying early Tuesday to the DC area (although actually landing at BWI and spending the day in Baltimore), right when the airport security staff are likely to be at their jumpiest. Who can blame them?

Still, I cannot help but think that the giant security apparatus, and the huge dead-weight costs of people going to the airport early and wasting time, is one of the clearest signs that that we are not, despite recent events, succeeding in the ‘war on terror’ because we are letting our choices and expenditures be defined by those who do not wish us well. Maybe we’d be better off trusting those metal cabin doors to protect us from hijacks, and accepting that even so there can be no perfect safety in a complicated world.

I’d take the risk, but I’m not the one who would have to explain it if something went wrong, and those who do have gigantic institutional incentives to be, and even more to be seen to be, risk-averse. Thus, the FBI openly is being transformed into a domestic intelligence agency, one charged with preventing rather then solving crimes. In a perfect world, of course, prevention is better than cure, and punishment is not even cure. But there is no way an FBI or any other public agency can seriously undertake this mission without, and there is no other word for it, spying on a lot of people. I think history has a few things to teach us about how that works out for societies as a rule, and I wonder how much we are heeding those lessons.

On Wednesday, I’ll be in DC visiting family and friends. On Thursday and Friday I’m going to the GIGANet Doubleheader. My part of the talking will be about IP numbers on Thursday, and about ICANN on Friday. There’s a written paper for the Friday talk.

Posted in 9/11 & Aftermath, National Security, Talks & Conferences | 1 Comment

Orrin Hatch Tries to Look Even More Far-Right

Posted on April 29, 2011 by Michael Froomkin

Lauren Weinstein catches Sen. Orin Hatch trying to airbrush his legislative record to make it more Teaparty-compatible:

Hatch wants to keep his job — and the birthers present a serious problem for him. You see, back only eight years ago, when Austrian-born Arnold Schwarzenegger (for all his faults, still a quite moderate, non-wacko guy) was in his ascendancy with the GOP, Hatch proposed a constitutional amendment — the “Equal Opportunity to Govern Amendment” [“Presidential Eligibility Amendment”] — to allow persons born abroad (like Schwarzenegger) to become president!

This bit of history has become rather inconvenient for Hatch, when he needs to appeal to Tea Party and birther zealots.

…

Apparently until a couple of days ago, the details of Hatch’s proposed amendment were still available in the direct archives of his Web site, listed along with his other legislative efforts over the years. But there’s a gap in that list of pages now, seemingly where mention of the amendment used to be present.

via Lauren Weinstein’s Blog: Google Exposes Senator (Sloppily) Trying to Delete History for Birthers.

Of course, looking like you wanted to do Schwarzenegger a favor isn’t going to win you friends with anyone these days.

Posted in 2012 Election | 5 Comments

Unexpected Consequences of Living Near a University Campus

Posted on April 28, 2011 by Michael Froomkin

Our A/C is busted again, and the nice man from the A/C company showed up today after only 48 hours of phone calls and two broken appointments to do a leak test on the lines, an expensive process that they tell me takes two days (with no A/C) to establish which of several candidate expensive parts will need to be ordered in (while we have no A/C) and then installed at yet more cost. The scenarios vary from expensive to amazing.

I explain all this not to complain, for such is the joy of home ownership in South Florida, but rather to explain why it is I have my study window open and thus have been hearing a loud buzzing engine noise for a couple of hours. I finally went outside to see if I could figure out what it might be — who would be running a generator when the neighborhood power has been steady for almost a week now? — only to see a blimp circling a bit south of here, with a giant airborne lighted news ticker advertising the 2011 Billboard Latin Music Awards, which I’ve just learned are indeed happening at the Convocation Center right now.

Posted in U.Miami | Comments Off on Unexpected Consequences of Living Near a University Campus

Keith Aoki

Posted on April 27, 2011 by Michael Froomkin
Keith Aoki, innovative copyright scholar and great guy, has died at the untimely age of 55.

He was a professor at UC Davis and previously at U. Oregon, where I first met him many years ago.

Some web tributes are here, here, here, and here.

Posted in Personal | Comments Off on Keith Aoki

Colds in the (Sub)Tropics

Posted on April 25, 2011 by Michael Froomkin

I made it back safely from Chicago, but somewhere in the journey I caught a tremendous cold and have done little but sleep since my return.

It always seem to me particularly pathetic to have a cold in the (sub)tropics. It’s over 80° out, and I’m in here sniveling.

However, I’m delighted to learn that while I was snoring, both (all three?) wars ended, and we are now in ‘peacetime’. I suppose that explains why there is no war surtax.

Posted in Personal | 10 Comments