Howlers (Part One)

The government has filed its brief novella in the legal appeal by Belfast Project researchers Ed Moloney and Anthony McIntyre. Ted Folkman has already posted his legal analysis, noting some things along the way that surprised him: "Most boldly, the government goes for it and argues that there simply is no First Amendment academic’s privilege."

Of course, the government is quite boldly going for it in arguments against the First Amendment all the time, these days, so I take that boldness as part and parcel of a larger assault on civil society. In 2012, the pattern is well established: Yes, government is going to boldly go for it and argue against our First Amendment "privileges." (See also.)

In any case, my plan was to read the government's brief this morning and then write a long post about it. But the government destroyed my plans with the raw power of their comedy gold, and now I'm just going to start posting as I go through the awful thing. The government's novella is below, if you feel like tasting your own bile. While laughing! It's sort of a repulsive comedy effect, and someone should add the U.S. Attorney's Office for the District of Massachusetts to this page. They've earned it.

Start with this great piece of narrative juxtaposition, from pg. 25 (of the PDF file, which is numbered as pg. 13 in the brief). First, the government's novella concludes a paragraph with the argument that Moloney and McIntyre shouldn't be permitted to intervene: "Their interests were fully and forcefully advanced by Boston College." So the researchers shouldn't be allowed to participate in any effort against the subpoenas, because BC is already waging the whole fight -- the university is "fully and forcefully" contesting any issues that its researchers could possibly raise.

Very next sentence, starting the following paragraph, with emphasis added: "The district court’s proper denial of appellants’ motion to intervene forecloses review of the merits of the court’s ruling on the motion to quash, as neither Boston College nor the government appealed that ruling."

So BC's interests are the interests of its researchers; there can be no sunlight between them, because BC is "fully and forcefully" fighting out all the issues the researchers might raise. And, anyway, why are we still talking about this stuff the researchers keep bringing up -- doesn't the court realize that BC already gave up on this part?

Boston College is fully and forcefully advancing the interests of its researchers by not appealing the ruling the researchers wish to appeal. Back to back sentences. Not the first time I've wondered: Does the government require that its lawyers be willfully obtuse as a condition of hiring, or is it something they learn on the job?

Much more throughout the day, as time permits.
Govt Brief 11-2511

Because They Are Icky, Your Honor

Boston College has filed a docketing statement -- two days after the court's deadline, 'cause they're right on top of this one -- in its Belfast Project appeal (see below, if you have lots of time on your hands). The sad thing here is that the First Circuit's docketing statement form is a total snooze -- compare it to the form from the Ninth Circuit, which requires a brief description of the "Principal Issues to be Raised on Appeal." Clearly, the First Circuit is not thinking about my needs.

But there's one very mildly interesting addition, a "supplemental" declaration typed on a separate page and stuck into the middle of the court's form: "Appeals from the denial of a motion to intervene in this action, and from a separate action relating to the same subject matter that was dismissed, are pending in this Court in Nos. 11-2511 and 12-1159 (consolidated as No. 11-2511). No abeyance of any of the appeals or consolidation is warranted."

Translation: Don't lump us in with those fuckers, 'cause we wanna go this one alone.

Those other two appeals, 11-2511 and 12-1159, were filed by BC's Belfast Project researchers. The trial court denied their request to intervene in the case between BC and the government, and did so on the premise that BC adequately represents the interests of its own researchers -- precisely the people BC wants to keep at arm's length. We represent your interests, and we're on your side, and we don't want to be in court with you, and we don't want anything to do with your appeals.

No contradictions or tensions in there at all.
Bc Docketing Statement

Gov't to Judge: This is Gonna Be a Little Harder Than We Thought

Several developments in the legal appeals over the subpoenas of Belfast Project interviews at Boston College:

First, the U.S. Attorney's Office in Boston has asked the First Circuit for an extra business day to submit its response to a pair of appeals filed by Belfast Project researchers Anthony McIntyre and Ed Moloney, and to the amicus brief filed by the ACLU of Massachusetts. The government's brief is below, but here's the most important piece:

The arguments in these appeals raise a number of issues of first impression regarding the rights of third parties to intervene in or otherwise effect proceedings under the MLAT. In addition, because the appeals implicate an international treaty as well as issues of domestic civil and criminal law, a number of departments of the United States have requested that they be allowed to review and comment on the government’s brief. A draft of the brief has been completed. In order to allow sufficient time for the brief to be reviewed and reviewer comments to be incorporated into the draft, however, the government requests that its deadline be extended by one business day.

In a single paragraph, the DOJ conveys the exceptional importance of the aggressive legal effort from Moloney and McIntyre. With Boston College making no more than limp and polite gestures at challenging these subpoenas, a pair of independent researchers chose to go it alone -- aided by capable lawyers, and now joined by the ACLUM -- and to fight like hell. The U.S. Attorney's Office never broke a sweat working against BC's sad efforts, but now it faces a legal battle over "a number of matters of first impression" that demand the immediate attention of "a number of departments" of the federal government. These appeals will make case law that will define the relationship between researchers and the government for decades to come. Academic news media, get off your asses and pay attention.

Here's the brief:

Govt Motion to Extend Time to File

Meanwhile, Boston College wages its own halfhearted appeal over a limited portion of the contested subpoenas. On April 4, BC's lawyers will be in the federal courthouse in Boston at the same time as McIntyre and Moloney's lawyers. But they won't be in the same room: While lawyers present oral argument in the researchers' appeal, BC will be down the hall in a mandatory pre-trial settlement conference with the government:

Settlement Conf

When BC filed its appeal, there was some speculation that their case would be consolidated with the appeals filed by the Belfast Project researchers. The scheduling of these two events on the same day shows that no consolidation is possible. BC and its researchers will undertake wholly distinct efforts. Given the uselessness of BC's half-assed and sadly limited appeal, that's for the best.

ADDED LATER:

An update, from the federal court's case management website:

"ORDER entered by Sandra L. Lynch, Chief Appellate Judge: The Government's motion for extension of time to March 12, 2012 to file its brief is allowed. The deadline for filing Appellant's reply brief is extended to March 19, 2012. No further extension of these deadlines will be allowed. The Government's request for leave to file an oversized brief not to exceed 15,000 words is also allowed. The Government is directed to 1st Cir. R. 32.4, which requires that motions to file oversized briefs be made at least ten calendar days in advance of the deadline for filing the brief. In the future, the court expects that any such motions will be made in a timely fashion."

War Like Sunrise, Daily and Inevitable

Walking down Wilshire Boulevard tonight, I passed a bank of television screens inside a stockbroker's office. Erin Burnett's face was on one of the screens, over a caption describing American discussions about a war with the Syrian regime. (The CNN website still just carries a teaser for the show: "OutFront tonight: could the U.S. get involved in Syria? Erin breaks it down.") The very last time I looked up and saw Erin Burnett's face on a television screen, it was making its serious journalist expression -- kind of furrowed and squinty, like she has sand in her eyes -- over a caption about the possibility of an American war with Iran. CNN should just rotate through the whole globe with the same script: Tonight on CNN: Tuvalu stands defiant! Will America strike? Erin Burnett breaks it down.

The United States has now been at war for more than a decade, and is looking for new ones to start, but the public discussion about our smooth transition to apparently eternal war is as quiet and uncluttered as -- well, as our smooth transition to apparently eternal war. Even granting that Erin Burnett is a special case, we still discuss each new target in isolation, as a discrete set of questions about, for example, whether or not Iran will be a naughty boy and cross a red line that will force us to strike.

Not discussed: The human costs and political consequences of endless war. The implications of strategic failure inherent in the absence of resolution for existing wars and effective deterrence to avoid future ones. The domestic implications of endless war, given that the attorney general thinks it's just fine to kill U.S. citizens without due process if he does lots of paperwork and furrows his brow first. And the likelihood of ultimate military weakness, by the way, as the nation bankrupts itself and exhausts its armed forces.

Journalists don't seem to notice that these are questions they might want to ask. Large portions of the political right don't think they're questions that anyone should ask, although there's an exceptionally important exception. And American liberals think it's very very very bad for George Bush to wage war, zomfg Obama RULES!!!!!

Note that there are credible, serious critics of the American way of war. Some of them -- some of the best of them -- are military officers. At West Point, Col. Gian Gentile is a critic who shares a home with some other thoughtful critics. Elsewhere, Lt. Col. Daniel Davis recently wrote a long report accusing military leaders of lying about American military progress in Afghanistan. There's certainly an active debate over the quality and importance of their criticism, but they exist! They speak! How central are their questions and criticisms in anything you read in the news?

Because We Said So

Just the right amount of derision in an analysis of Attorney General Eric Holder's dreadful speech on why the government gets to kill American citizens without the niceties of due process.

The Worst Public Agency in America

This guy is my hero, this morning:

Policing Peaceful Assemblies of Free People in a Constitutional Republic

At The Agitator, the blog of the indispensable Radley Balko, photos of Virginia police monitoring a peaceful protest at the state capitol. It will only take a few seconds: go look.