Thursday, December 19, 2013

If You Have Nothing to Hide You Have Nothing to Fear?

Outside the NSA's new Utah Data Center is a sign saying "IF YOU HAVE NOTHING TO HIDE YOU HAVE NOTHING TO FEAR." 

A recent decision by U.S. District Judge Richard J. Leon implicitly questions that nostrum.

Judge Leon, a George W. Bush appointee, ruled against the U.S. Government on the constitutionality  of the NSA's data-sweep from cell phone companies. It is a fascinating decision because of the extent of distrust of governmental shibboleths usually left unchallenged by judges afraid of challenging governmental activities in the name of "national security". Maybe there is, in fact, "something to fear" after all.

Judge Leon granted a preliminary injunction (which he stayed pending appeal) against the continuation of a U.S. Government program whereby telecommunication companies like Verizon are required to provide to the National Security Agency, on a daily basis, "call detail records" or "telephony metadata" relating to the incoming and outgoing electronic communications of their cell phone subscribers.  The court held that there was a likelihood that, after a full hearing, he would find that the program was an unreasonable search under the Fourth Amendment, and that the plaintiffs' interest in the privacy of their cell phone calls outweighed the public interest asserted by the government in support of the program. Klayman v. Obama, No. 13-0851 (RJL), 2013 WL 6571596 (D.D.C. Dec. 16, 2013).

An interesting but essentially irrelevant sidelight about one of the two individual plaintiffs: Larry Klayman is a veteran self-styled, usually-right-wing, pubic interest "activist." In 2012 he announced that President Obama and Vice President Biden had been "indicted" by a "citizens grand jury" for having willfully released classified national security information.  One of his websites proudly states that he "has been credited as being the inspiration for the Tea Party movement." Is it not apt and fitting that this particular case came to be only because two such disparate people as Larry Klayman and Edward Snowden crossed paths in this case?

The program was revealed in June 2013 by the Guardian, a U.K.-based newspaper, based on the revelations of a former NSA contractor, Edward Snowden. Shortly thereafter, the government confirmed the authenticity of the April 25, 2013 order of the Foreign Intelligence Surveillance Court ("FISC") compelling Verizon to provide the data to the government. The government also confirmed that the Program applied to other cell phone providers besides Verizon. 

This is how the government describes the program in its pre-hearing brief:
[T]he NSA obtains, through orders of the Foreign Intelligence Surveillance Court (FISC), bulk telephony metadata—business records created by telecommunications service providers that include such information as the telephone numbers placing and receiving calls, and the time and duration of those calls. The Government does not collect, listen to, or record the content of any call under this program, nor does it collect the name, address, or financial information of any subscriber, customer, or party to a call. The program operates under FISC-imposed restrictions, together with stringent supervision and oversight by all three branches of Government, to prevent access to, use, or dissemination of the data for any purpose other than foreign intelligence. Specifically, the NSA may only query the collected metadata for counter-terrorism purposes, and even then, only if there is a reasonable, articulable suspicion that the selection term (e.g., the telephone number) to be queried is associated with a specified foreign terrorist organization approved for targeting by the FISC. This requirement bars the type of indiscriminate querying of the metadata, using identifiers not connected with terrorist activity, to create “comprehensive profiles” of ordinary Americans’ lives as Plaintiffs speculate. As a result, only a tiny fraction of the collected metadata is ever reviewed, much less disseminated, by NSA analysts.
Government Defendants' Opposition to Plaintiffs' Motions for Preliminary Injunctions, Nov. 12, 2013, at 1-2 (emphasis added).

The Utah Data Center (from the NSA's website)

Judge Leon's handling of two central issues is fascinating for the refreshing irreverence of his thinking: not that he does not take the NSA's role seriously, but that he would not simply swallow whatever the government dished out in his courtroom. Would that federal judges had the guts to do so in all sorts of government cases, including cases not remotely dealing with national security.

Issue No. 1: 

Whether the interception and delivery of the 
data amounts to a "search"

The Fourth Amendment to the Constitution protects against "unreasonable searches and seizures." Judge Leon, the Plaintiffs and the U.S. Government all agreed that the program is not a seizure. Is it a search? Answering this question required the court to distinguish a long-standing Supreme  Court decision that the government argued established that the program is not a search. How he reached that decision reveals something about his apparent distaste for governmental obfuscation.

For purposes of this case, a search occurs when “the government violates a subjective expectation of privacy that society recognizes as reasonable." Based on the allegations in the case, Judge Leon posed the question as follows: "whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets." The judge later restated the question in essentially the same language: "whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval." One may very well say that with such a description of the issue, the judge's resolution was a foregone conclusion.

In the electronic era, at least, there is a thin line between whether a search has taken place and whether society expects that the data gathered are assumed to be confidential. Deciding the issue of whether there is a search begins with an analysis of the methods used to obtain the data and the nature of the data seized.

The government relied on a 1979 Supreme Court case, Smith v. Maryland.  The victim of an alleged robbery informed the police that, after the robbery, someone had been making harassing telephone calls to her. The police learned of the suspect's identity and, without a warrant, requested and received from the telephone company (through a "pen register") information that showed that the suspect had telephoned the victim's home telephone number a few days after the robbery. The Supreme Court held that the use of the pen register was not a search because the pen register did not reveal the contents of the call or even whether the call connected, and because there is no reasonable expectation of privacy in the phone numbers that a person dials. 

The government argued in its prehearing brief was that, despite the differences in the scope of a single pen-register request and the sweep of data by the NSA, the latter were not searches: they involve the telephone company's records;  people know when they make a call that this third party will make and keep records of the calls, and do not expect the detail of a call to be private. The government also stressed what it characterized as the limited scope of the data gathered:

Importantly, the call-detail records reveal only phone numbers and other numeric data, not any information identifying the caller or the person called. Thus, these data do not in fact reveal any information about the subscriber’s professions, political activities, or other activities in which they may have a privacy interest. The mere fact that the numbers dialed from a phone could, in some hypothetical sense, reveal the identities of the persons and the places. . . [T]he NSA does not know the identity of anyone making or receiving the calls (apart, perhaps, from the suspected terrorist actors associated with the 'seed' identifiers), and under the terms of the FISC’s orders, cannot use the metadata to detail individuals’ associations.
The latter argument would appear to go to the reasonableness of an expectation of privacy, not whether there was a base level of expectation of privacy. If the appeals court or the Supreme Court wants to protect the program, they will simply rule that Smith controls, notwithstanding the vast differences between the quaint days of single-suspect pen register requests and all-encompassing, indiscriminate data sweeps.

Judge Leon distinguished Smith on a number of grounds, including the length of time covered by the data; the long term, essentially institutionalized nature of the cooperation between the NSA and the cell phone companies; the differences between a one-customer pen register request and an all-encompassing sweeping up of all cell-phone users' metadata; and differences between the nature and quantity of the information gathered by the two methods, including the explosion in the use of electronic communications through cell phones: "the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives." 
Issue No. 2:

Whether the search was "reasonable"

Like all standards based on the elusive word "reasonable," the "reasonable expectation of privacy" test requires judges to evaluate governmental actions according to accepted societal standards. In the 1950s the Court reversed, on due process grounds, the conviction of a defendant based on the police pumping his stomach to reveal drugs he had swallowed, because, in the words of Justice Frankfurter, the action of the police "shocks the conscience" and "offend[s] those canons of decency and fairness which express the notions of justice of English-speaking peoples even towards those charged with the most heinous defenses." Rochin v. California, 342 U.S. 165 (1952). Not exactly a bright-line test, that.

In what may be the most significant -- if not vulnerable, because of his patent unwillingness to take the government's word for it -- sections of his decision, Judge Leon, in determining the reasonableness of the Plaintiffs' asserted expectation of privacy, tried to balance the government's need for the information against that desire for privacy. In doing so, the judge considerably shrank the government's asserted need for the data from a generalized need for "identifying unknown terrorist operatives and preventing terrorist attacks" to the much more limited desire "to do so faster than other investigative methods might allow." Judge Leon found, however, that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." This led the judge to conclude that
I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast.
James Madison
The Judge's distaste for lack of governmental candor

This last finding was one of a number of demonstrations of the judge's apparent distrust of the government's rationales, including his distrust of the government's willingness or ability to adhere to the limitations placed on the NSA's use of the gathered data by the NSA itself or by the super-secret Foreign Intelligence Surveillance Court. Other examples from his decision: 
  • "I am not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so I am certainly not convinced that the removal of two individuals from the database will “degrade” the program in any meaningful sense."
  • "[I]n one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!"
  • "While more recent FISC opinions expressly state that cell-site location information is not covered by Section 1861 production orders, see, e.g., Oct. 11, 2013 Primary Order at 3 n.l, the Government has not affirmatively represented to this Court that the NSA has not, at any point in the history of the Bulk Telephony Metadata Program, collected location information (in one technical format or another) about cell phones."
  • "The most recent FISC order explicitly “does not authorize the production of cell site location information,” Oct. 11, 2013 Primary order at 3 n.1, and the Government has publicly disavowed such collection. . .  That said, not all FISC orders have been made public I have no idea how location data has been handled in the past. Plaintiffs do allege that location data has been collected, see Second Am. Compl. ¶ 28; Pls.’ Mem. at 10–11, and the Government’s brief does not refute that allegation (though one of its declarations does, see Shea Decl. ¶ 15). . . Recent news reports, though not confirmed by the Government, cause me to wonder whether the Government’s briefs are entirely forthcoming about the full scope of the Bulk Telephony Metadata Program."
  • "After stating that fewer than 300 unique identifiers met the RAS standard and were used as “seeds” to query the metadata in 2012, [an NSA official] notes that '[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three ‘hops’ from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records.' Shea Decl. ¶ 24 (emphasis added). The first part of this assertion is a glaring understatement, while the second part is virtually meaningless when placed in context."
  • "The Government maintains that the metadata the NSA collects does not contain personal identifying information associated with each phone number, and in order to get that information the FBI must issue a national security letter (“NSL”) to the phone company. . . Of course, NSLs do not require any judicial oversight, . . . meaning they are hardly a check on potential abuses of the metadata collection. There is also nothing stopping the Government from skipping the NSL step altogether and using public databases or any of its other vast resources to match phone numbers with subscribers." 
  • "Such candor [on the part of one government witness] is as refreshing as it is rare."

That this George W. Bush appointee delivered this opinion may not be a surprise to those who have read other decisions by this judge, but it is, nevertheless, yet another example of the fact that political pedigree is not always the best predictor of judicial attitudes. It is also, to some degree at the minimum, of the slow, steady decline of confidence in governmental candor as a result of almost fifty years (since Vietnam) of governmental lies and distortions in support of this or that policy or political interest.

In that respect, Judge seems to have followed Holmes' approach to the development of the law in The Common Law (1881):
The life of the law has not been logic: it has been experience. The felt necessitiesof the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.


Friday, November 22, 2013

5 Truths About JFK

It seems that everyone talks about the myths surrounding John F. Kennedy.

Here are five truths about JFK.

1. He got elected to office as an insurgent. In an era where Conformity was King, John F. Kennedy was a non-conformist when it came to winning elections. From the time he ran for Congress in 1946 in his adopted city of Boston -- actually his district spanned the Charles River, covering three wards in Cambridge, three in Somerville and one in Boston -- Kennedy avoided reliance on party bosses. He set up parallel Kennedy organizations, pioneering the use of teas and coffees to attract women voters. When he ran for President in 1960, party bosses, or at least party committees, chose the Convention delegates in almost every state. He used the primaries in Wisconsin and West Virginia as if they were nuclear tests in the ocean, designed to influence party bosses to instruct their delegates to vote for him at the Democratic Convention. In other words, Kennedy ran as an insurgent. His father's money did not buy the nomination as much as enable him to win it.

2. He was a man of ideas and an avid student of history. He is given credit for writing two books: Why England Slept, an analysis of how Britain's passivity during the 1930s strengthened Hitler's ability to rearm Germany and pose a mortal threat to human values; and Profiles in Courage, the stories of eight U.S. Senators who stood up to their parties or their constituents to vote their conscience. When he was alive, there was a big controversy about whether he actually wrote these books. Even if he had help, he had interest in the subjects, which is a lot more than you can say about other politicians of his  day or later.

3. He was an ardent Cold Warrior who grew skeptical of old Cold War tactics once in the White House. Having seen Nazi Germany, a totalitarian regime, nearly succeed in blowing up the world, John F. Kennedy, like virtually every European and American in the 1940s and 1950s, saw the Soviet Union, another totalitarian regime, as a serious threat to American security. The Soviets set up puppet states throughout Eastern Europe within a few years of the end of World War II, and the U.S. pledged to use its military power to prevent the Soviets from invading Western Europe. Every localized conflict was seen through the lens of the Cold War, as if Communism were a unified, monolithic entity headquartered in and run out of Moscow: the Congo, Cuba, Korea, Vietnam, Laos, Iran, Guatemala.  When Kennedy ran against Richard Nixon in 1960, his principal campaign plank was his charge that Eisenhower had allowed a "missile gap" to develop between the USSR and the West. He may have believed it. Once assuming the Presidency, Kennedy never dropped his belief that the Soviet Union posed a mortal threat to American security, but he became increasingly skeptical of the traditional American approach to the USSR: that it was a purely military threat that must be confronted with the implied willingness to use nuclear missiles and bombers to obliterate the Soviet Union. Eventually, he began to focus on what later was called "detente" under Nixon: figuring out a way to live with the USSR while receding from the doomsday threat of nuclear war. Hence, the Test-Ban Treaty, and the secret deal with the USSR over NATO missiles in Turkey, which enabled him to resolve the Cuba Missile Crisis without resort to war.

4. As President, he had limited political capital and was reluctant to spend it on what he saw as a lost cause legislatively: civil rights. Kennedy was elected President with 49.7% of the popular vote, winning by 119,000 votes over Vice President Richard Nixon, who garnered 49.5%. 81 electoral votes -- over 25% of his 303 electoral votes he won -- came from seven states from the Deep South (Alabama, Arkansas, Georgia, Louisiana, North Carolina, South Carolina and Texas).  Once in office, he faced the same kind of Congress that had dominated the government for decades: power was held tightly by Committee chairmen, almost all of whom, because seniority ruled, were Southern Democratic segregationists. No bill could advance to the House floor without being approved by the House Rules Committee, chaired by the arch-conservative Howard W. Smith of Virginia. Even after the Rules Committee was expanded by three votes in 1961, it continued to thwart civil rights, labor and education bills. This lasted throughout the Kennedy Administration. During the 1960 election, civil rights was not an issue because, as between Nixon and Kennedy, there was no difference on the issue, and many blacks remained Republicans because of their allegiance to Abraham Lincoln. Indeed, prior to becoming President, Kennedy had shown no particular interest in civil rights, and for two years his and his brother Robert's main objective was to keep the peace. Slowly, however, he was dragged into action. In the early fall of 1962, he forced the integration of the University of Mississippi by ordering federal troops to accompany James Meredith in his successful attempt to enroll at Ole Miss. The following spring, he finally decided to seek federal civil rights litigation, which had been bottled up in the Congress since the first post-Reconstruction civil rights law was passed in 1957. He gave a nationwide televised address in reaction to the increased violence perpetrated on civil rights activists by southern mobs and police. For the first time, a President characterized civil rights as a moral issue:

This is not a sectional issue. Difficulties over segregation and discrimination exist in every city, in every State of the Union, producing in many cities a rising tide of discontent that threatens the public safety. Nor is this a partisan issue. In a time of domestic crisis men of good will and generosity should be able to unite regardless of party or politics. This is not even a legal or legislative issue alone. It is better to settle these matters in the courts than on the streets, and new laws are needed at every level, but law alone cannot make men see right. 

We are confronted primarily with a moral issue. It is as old as the scriptures and is as clear as the American Constitution. 

The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated. If an American, because his skin is dark, cannot eat lunch in a restaurant open to the public, if he cannot send his children to the best public school available, if he cannot vote for the public officials who will represent him, if, in short, he cannot enjoy the full and free life which all of us want, then who among us would be content to have the color of his skin changed and stand in his place? Who among us would then be content with the counsels of patience and delay? 

The face of America and American politics was forever to change. The fact that it took JFK's assassination and Lyndon B. Johnson's far greater effectiveness with Congress to permit the 1964 Civil Rights Act to pass does not diminish the significance of the words of that speech.

5. The aura of John F. Kennedy was real. It is impossible to overemphasize the extent to which John F. Kennedy's famous aura was so attractive. It was based on a combination of factors and contrasts. He was handsome, had a full head of spectacular hair and was young, married to a 31-year old beauty, amidst a political and business culture that was dominated by middle-aged, boring, balding white men married to matrons. He had a great sense of humor, poking fun of himself, in a culture where wry humor was rare and not highly prized. He surrounded himself with academicians instead of businessmen. He seemed to be interested in facts, not nostrums and beliefs. He spoke to people's aspirations, not only their personal wants and needs. He is often compared to Ronald Reagan, but it is a false comparison. Yes, they both supported tax cuts to boost the economy. But how can anyone imagine even the ever-cynical Kennedy’s starting his Presidential campaign, as Reagan did, in Philadelphia, Mississippi, a bastion of anti-civil rights violence and bigotry? And how can anyone imagine John F. Kennedy's basing his entire Presidency on the principle that government was the enemy and that the worst possible fate that anyone could face was having to pay taxes? 

Wednesday, May 22, 2013

If Only Obama Would Automatically...

... have explained to the world that the IRS agents "selecting" "Tea Party" were not selecting Tea Party organizations for audits, but that they were looking for a quick way of identifying organizations that appeared to be political that were inappropriately asking for tax exempt status,

and only then calling the way it was done "outrageous" and saying "I will not tolerate it,"

rather than first explaining (painting the picture) to the American people what actually was done, and only then jumping to the purple, headline-grabbing prose.

Instead, this is what he said at his May 13, 2013 news conference:

If, in fact, IRS personnel engaged in the kind of practices that had been reported on and were intentionally targeting conservative groups, then that's outrageous and there's no place for it.  And they have to be held fully accountable, because the IRS as an independent agency requires absolute integrity, and people have to have confidence that they're applying it in a non-partisan way — applying the laws in a non-partisan way. 

And you should feel that way regardless of party.  I don't care whether you're a Democrat, independent or a Republican.  At some point, there are going to be Republican administrations.  At some point, there are going to be Democratic ones.  Either way, you don't want the IRS ever being perceived to be biased and anything less than neutral in terms of how they operate.  So this is something that I think people are properly concerned about. 

The IG is conducting its investigation.  And I am not going to comment on their specific findings prematurely, but I can tell you that if you've got the IRS operating in anything less than a neutral and non-partisan way, then that is outrageous, it is contrary to our traditions.  And people have to be held accountable, and it's got to be fixed.  So we'll wait and see what exactly all the details and the facts are.  But I've got no patience with it.  I will not tolerate it.  And we will make sure that we find out exactly what happened on this.

That kind of unimaginative, overly legalistic response is perfect grist for the GOP mill.

What did anyone learn about what actually occurred from these 248 words? Nothing. Why could he not have said something like this:

Make no mistake about it. I condemn in no uncertain terms what occurred.  But before any one jumps to the wrong conclusion, it is important that the American people know what actually was going on and why it should be condemned.

As far as we know, these IRS personnel were not doing audits of taxpayers or selecting taxpayers for audits.

Instead, they are responsible for reviewing applications for tax exempt status to help determine whether they are eligible for tax-exempt status. Under the law, not all organizations are eligible for tax-exempt status. If they are, they do not have to pay taxes on income earned by the organizations. If the primary purpose of the organization is political, then they're not eligible for that status. Looking for a way to do their job, they decided to flag applications for organizations with names like "Tea Party". 

It was wrong, and, yes, outrageous, for these public servants to do that, because it created a risk that what sounded like right-wing organizations would receive inappropriate level of attention and review. This is bad both because it would tend to treat different organizations differently based on their political beliefs and because it would tend to harm the appearance of lack of political neutrality on behalf of the IRS. 

For all of his ability to deliver soaring rhetoric, this President seems completely uninterested in explaining things to the American people -- as opposed to repeating a slogan encompassing the goal he advocates. He rarely did it when he was advocating for his health care plan. It's as if he thinks that his being for or against something is all the people need to know. It's a completely ineffective method of advocacy. Why is it still his modus operandi? 

The result is what you could expect by Obama's not defining the issue. The right wing is having a field day and Obama has reverted to radio silence.

Tuesday, April 9, 2013

"I'm shocked, shocked to find that [churning] is going on in here!" (Apologies to Captain Renault.)

A law firm with 4 trillion lawyers in 876 countries was recently embarrassed by emails that made its lawyers look like cynical thieves when it came to overbilling clients. OK, I exaggerate. Only 4,200 lawyers in 30 countries. 

Hourly billing was instantly hauled out to be mauled by the critics of and within the legal profession (or legal industry, as it should truthfully be called). A retired Kirkland & Ellis partner wrote an op-ed piece for The New York Times in which he blamed the hourly billing system for spawning the "big law-firm business model." 

A more nuanced and far more devastating portrait of the modern big law firm was painted by a retired Arnold & Porter partner, Abe Krash, in a 2008 article in Washington Lawyer, published by the D.C. Bar, "The Changing Legal Profession." In it Mr. Krash did not take the hourly billing system to task for deadening the spirit of law practice. Rather, he focused on the economic system itself and, in particular, the quest for ever larger revenues and partner compensation.

I have practiced law in a variety of settings: big international firm, big national firm, local firm, solo. Trust me. The problem is not billing by the hour. Criticizing lawyers for billing by the hour is looking through the wrong end of the telescope. Search high and low for a truly viable  base billing system other than the hourly system, and you will come up empty. That's because lawyers have nothing but their time and brains to sell. On the long haul, the hours it takes to accomplish a task provide the base, objective measure of the value delivered to the client. Adjustments can and should be made to that calculation. Wasteful work should be written off. Upward adjustments can be provided for exceptional work (if disclosed). But starting without the simple multiplicand - hours spent times a billing rate - is like trying to hit smoke, except in those rare hypothetical instances where the brilliant tax lawyer legitimately charges a million dollars for spending five minutes saving someone hundreds of millions in taxes.

The problem is not that lawyers bill by the hour. It is that, at the big law firms, the expected norm for equity partners is to make gobs of money, far more money than their grandfather lawyers did. To produce the profits that can fund gargantuan compensation to partners, particularly with the large overhead that law firms have to pay for every day, "revenue producers" (lawyers and paralegals) have to produce gargantuan fees. To produce those fees, they must generate extra-large numbers of hours. To generate extra-large numbers of hours, they have to work matters to death. Even if billings were based on tasks, lawyers would bargain for per-task billing that imputed a large number of hours, at large graduated billing rates, for each task. The young lawyer is told she must bill 2200 billable hours per year, or over seven hours a day, six days a week, 50 weeks a year. No wonder the lawyers get giddy and cynical about the hours they have to put in to reach their minimum billing requirements. 

Corporate clients pay these fees because it's not their money and because they're scared to use less expensive or smaller firms lest they be criticized if they lose. Not that the same result would not have occurred had they used the large law firm. 

Until clients fully use their bargaining power and do not insist on using the largest law firms whether or not the case requires a standing army, nothing will change. 

Wednesday, March 20, 2013

My email to Richard Perle

Richard Perle, one of the intellectual fathers of the Iraq war, was interviewed this morning on NPR. It was a revealing interview. It showed that nothing has changed.

So, I tracked down Perle's email address ( and sent him an email. 


It's good to see that there is constancy in this world. You are still the evasive, arrogant person you were when you flogged the war in Iraq. Your interview on NPR this morning restored my faith in the belief that you can't expect an old dog to learn anything, not to mention be manly enough to admit mistakes of a fundamental nature. You and your buddies cooked the books and misled the country, all in order to, what, get back at Saddam for humiliating the Bush I White House back in 1991? for trying to take out Bush 1? Of course, if I dug deep enough, I'd probably find evidence that you were supportive of Donnie when he was kissing Saddam's butt during the mid-1980s. 

The fact that you and your buddies never even took account of the fact that Saddam was most afraid of the far more powerful country of Shia to the east is sickening. The fact that you and your buddies had no plans for the day after the tanks reached Baghdad is revolting. The fact that you still insouciantly mislead is delightful, because it indicates that if you have a conscience, you are having trouble sleeping at night when you think of the trillions of dollars spent on this folly and the thousands of American children who never knew their fathers, not to mention the bombs ripping human flesh today in the made-up country called "Iraq." 

The story that you told today -- that you were searching for a country that could pose a threat to the U.S. after 9/11-- is the biggest whopper yet. Are you kidding?

It reminds me of McNamara's book on Vietnam, where the word "Buddhist" never appears. So, here's some advice: if you are ever in a position of power again, heaven forfend, and you decide to invade another country, this time try to understand the nature of the country's populace and heritage. It might save you some sleepness nights later on when your war proves unwinnable. 

I am awaiting a reply. 

Wednesday, March 6, 2013

47 percent redux

I had forgotten all about Mitt Romney when he and his wife decided to be interviewed on Fox News (where else?) about how it felt to lose the election.

Romney engaged in what he would call letting his hair down and what the rest of us would call a typical calculated attempt to rationalize and avoid reality. Big surprise.

But one of his comments really stood out for his arrogance, in case I had to be reminded.
This was his take on his famous “47 percent” riff:

Yes, it was a very unfortunate statement that I made. It's not what I meant. I didn't express myself as I wished I would have.

You know, when you speak in private, you don't spend as much time thinking about how something could be twisted and distorted and -- and it could come out wrong and be used.

But, you know, I did. And it was very harmful. What I said is not what I believe. Obviously, my whole campaign -- my whole life has been devoted to helping people, all of the people. I care about all the people of the country.

I went back to the transcript of Romney’s remarks to his campaign contributors in Boca Raton to see whether there could be any truth to his claim that he had somehow blurted out some off-the-cuff comments about that he did not really believe. 
Here’s the question from someone in the claque of wealthy sycophants audience to which he responded with the 47% statement: “For the last three years, all everybody's been told is, ‘Don't worry, we'll take care of you.’ How are you going to do it, in two months before the elections, to convince everybody you've got to take care of yourself?”
Here’s what Romney said in response:

There are 47 percent of the people who will vote for the president no matter what. All right, there are 47 percent who are with him, who are dependent upon government, who believe that they are victims, who believe that government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you name it. That that's an entitlement. And the government should give it to them. And they will vote for this president no matter what. And I mean, the president starts off with 48, 49, 48—he starts off with a huge number. These are people who pay no income tax. Forty-seven percent of Americans pay no income tax. So our message of low taxes doesn't connect. And he'll be out there talking about tax cuts for the rich. I mean that's what they sell every four years. And so my job is not to worry about those people—I'll never convince them that they should take personal responsibility and care for their lives.

What I have to do is convince the 5 to 10 percent in the center that are independents that are thoughtful, that look at voting one way or the other depending upon in some cases emotion, whether they like the guy or not, what it looks like.

As could have been expected, the news media went off into a paroxysm of frenzied discussion about whether Romney was in error when he said that 47 of the people pay no income taxes. 

That wasn’t the point! The point was that Romney was saying that the people at the bottom half of the economic ladder:

  • are dependent upon government,
  • believe that they are victims,
  • believe that government has a responsibility to care for them, 
  • believe that they are entitled to health care, to food, to housing, to you name it,
  • are not thoughtful, and
  • can never be convinced that they should take personal responsibility and care for their lives.

Of course this is what he meant. It may have been stupid to say this. But it came out of his mouth in a direct answer to a direct question in the cozy confines of a campaign event before a claque of wealthy sycophants major campaign contributors.  

It represented the height of the kind of arrogance that has characterized country club Republicans since time immemorial. Imagine telling policemen, firemen, Wal Mart stock clerks, assembly line workers, maids, secretaries, nurses, etc., etc., that they are interested only in a handout and will never take personal responsibility and care for their lives! Who says those things but doesn’t "mean" them? 

Ann Romney cried crocodile tears during the Fox interview about her husband’s having been the victim of media bias: "But it was not just the campaign's fault. I believe it was the media's fault as well. . . He was not being given a fair shake, that people weren't allowed to really see him for who he was."  

Mrs. Romney, I am sure you love Mitt and I wish you well. But let's face it. In perhaps the only unscripted moment in his entire life, Mitt Romney showed himself for who he is.

Sunday, February 24, 2013

The NCAA and the University of Miami: Through the Smoke

You know the smoke that spews forth when the Canes football players come on to the field? It seems as if the UM has borrowed some of that smoke during football offseason to try to draw attention away from the pesky question of institutional control.

As everyone in the world knows by now, the National Collegiate Athletic Association (“NCAA”) has served a Notice of Allegations on the University of Miami. According to media reports, it charges a lack of institutional control.

The UM has fought back, not by making the Notice of Allegations public and refuting its allegations, point by point. But by releasing a statement in the name of its President, Donna Shalala, attacking the NCAA and crying that the UM has “suffered enough."

Since it came out that several NCAA investigators had disregarded legal advice in conducting the investigation of the UM, the South Florida media have been awash with attacks on the NCAA.  Herald columns have been filled with vitriol, with very little attention, if any, on whether the U of M deserved the charge of lack of institutional control.  

             Greg Cote: “College sports’ governing body should drop its case against UM and instead direct the scrutiny and punishment upon itself”. 

             Dan LeBatard: “The consensus for decades has been that the NCAA is an absurd, unjust artifact that belches out unfairness.” And “So Miami, while fighting punishment, keeps getting punished … while awaiting yet more punishment.” (In fairness, LeBatard also added: Miami is not an innocent here, and the program’s history makes it a bad applicant for martyrdom as Ponzi weasel Nevin Shapiro works from jail to bring it down.”)  

It’s hard to defend or even maintain an open mind about the NCAA. For sheer hypocrisy, it’s hard to beat the NCAA. Take its Constitution, which states that its first two purposes are 

(a) To initiate, stimulate and improve intercollegiate athletics programs for student-athletes and to promote and develop educational leadership, physical fitness, athletics excellence and

(b) To uphold the principle of institutional control of, and responsibility for, all intercollegiate sports in conformity with the constitution and bylaws of this Association.

Then the Constitution states its “basic purpose” is “to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.”

Can grown men and women spout such malarkey with a straight face? Big Time College Sports treats “athletics participation as a recreational pursuit” and maintains “a clear line of demarcation between intercollegiate athletics and professional sports”? Maybe they don’t say these things with a straight face. Maybe they’re so inured to the anomalies that when they meet at NCAA conventions they recite these lines with broad smiles on their faces, presumably what some law professor was wearing when, on his he recited, in a monotone, the Internal Revenue Code. I don’t know. I’ve never been to an NCAA convention, and there's no picture on the poor prof's blog.

But put that all aside. The University of Miami is a member of the NCAA Division 1. It is supposed to abide by its rules -- and, as an institution of higher learning, with openness and intellectual honesty.

About that Notice of Allegations. Has anyone outside the U seen it? No. (In fact, I would bet good money that it has not been shown to members of the Board of Trustees outside a very small circle of Trustees who can be trusted not to release it to the press.) Because it is a private institution and thus is not subject to the State’s Sunshine Law, the University has not had to release the Notice. 

But its not releasing the Notice is shameful. But let's be realistic: doing so would interfere with the UM’s apparent desire to win its battle with the NCAA by staging an aggressive public relations campaign against the NCAA. That way, no one can know for sure what the NCAA had to say about lack of “institutional control.”

The NCAA’s Constitution is organized around a series of “Principles for Conduct of Intercollegiate Athletics,” the first of which is “The Principle of Institutional Control and Responsibility,” about which the following is said:

Responsibility for Control. It is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association. The institution’s president or chancellor is responsible for the administration of all aspects of the athletics program, including approval of the budget and audit of all expenditures.

Scope of Responsibility. The institution’s responsibility for the conduct of its intercollegiate athletics program includes responsibility for the actions of its staff members and for the actions of any other individual or organization engaged in activities promoting the athletics interests of the institution.

Rather than having to confront, publicly, whatever the NCAA alleged was evidence of lack of institutional control, the UM went on the offensive with a bare-knuckle attack on the NCAA by President Shalala. The UM has “suffered enough” at the hands of the NCAA, according to the U’s Chief Cheerleader.  Why? Because the NCAA "violated its own policies and procedures in an attempt to validate the allegations made by a convicted felon,” and because “many of the charges brought forth are based on the word of a man who made a fortune by lying.” 

Who is the unnamed convicted felon? That would be the pint-sized Uber Booster, Nevin Shapiro. The same Nevin Shapiro who, according to numerous reports, during half-time of the football team’s last game at the OB in 2007, confronted UM’s then head of UM in the press box, cursed at him, tried to draw him into a fight, and accused him of causing the UM’s football decline.  The same Nevin Shapiro who, in 2008, was photographed speaking at a basketball fundraiser at a bowling alley while, standing next to him, Donna Shalala had a broad smile on her face while ogling Shapiro’s $50,000 check to the “U,” as Coach Frank Haith and Sebastian the Ibis looked on. The same Nevin Shapiro after whom the UM named its players’ lounge, supposedly in exchange for $150,000. That Nevin Shapiro.

There's more. Dissect the University's attack document and you’ll find a few holes in that green and orange garment.

First, as best can be determined, the NCAA did not “violate its own policies and procedures” when it agreed to pay Nevin Shapiro’s lawyer to ask questions in aid of the NCAA investigation as part of the bankruptcy proceeding for his Ponzi scheme.

What actually occurred, according to the independent counsel hired by the NCAA to investigate the matter, was that the investigator on the case disregarded the advice of the NCAA’s in-house lawyers that the NCAA’s investigators not accept Shapiro’s lawyer’s offer to conduct bankruptcy depositions of persons whom the NCAA itself could not otherwise interview. When the NCAA learned that its investigator had run through this red light and had actually arranged for Shapiro’s lawyer to conduct the depositions and pay her for her time, it made the decision that the evidence derived directly or indirectly from the Perez depositions should not be used in any way against the U of M or any other investigated parties. Nevertheless, according to independent counsel: "The facts do not establish that any NCAA staff member intentionally or unintentionally violated any bylaw, bankruptcy procedure or law in their acceptance or implementation of the Perez proposal. Based on the circumstances as we now know them, it does not appear that any bankruptcy rule or procedure was violated. Nor have we found any NCAA rule or bylaw that specifically prohibits any of the Enforcement Staff’s conduct in this matter."

Second, the UM statement's allegation that the NCAA is basing its allegations on the uncorroborated word of a convicted felon is, at best, naïve. It is common knowledge that prosecutors in criminal cases routinely rely on the testimony of convicted felons to try to get convictions: who else will be around to testify about an accused criminal's conduct? In fact, in federal court at least, the rule is that a criminal conviction can rest on the uncorroborated testimony of a convicted felon. Davis v. United States, 411 F.2d 1126 (5th Cir.1969).

There have been at least two notable exceptions to the blanket of local pro-UM media coverage. One is the Sun Sentinel’s Dave Hyde, a former Herald reporter, who had this to say in a recent column:

Here's a question amid the fans' hosannas for Shalala for the way her statement attacked the NCAA's leadership like a declaration of war:

Where was such strong leadership when it was needed most? Where was it for all those years the school's football coach and compliance officer warned of a rogue booster running through the department? When players were introduced to the slime of Nevin Shapiro?

Here's where: It was naming the players' lounge after him. It was meeting him at a bowling alley to accept a donation. It was listening to the wrong people and ignoring those who could have spared the university this embarrassment.

‘Leadership’ is one of those cliché words in sports. Teams are asked about it. Players are asked to play the part. But when it came for the supposed leaders in the collegiate world to define it, everyone was lacking in this episode. Miami officials. NCAA officials. Everyone.

Shalala played her final, brazen card with this statement. She wants to bring media and public opinion down on the NCAA in a maneuver that will reduce the coming punishment.

The other is the Herald's Linda Robertson, who wrote that Shalala should "reveal the charges against UM. . . . Her school, under her watch, has been accused of 'lack of institutional control,' the Doomsday Switch of NCAA accusations. If that is unfair or unsubstantiated, then show why." She added: "The NCAA has been criticized as the “pot calling the kettle black” by botching its investigation of unethical behavior at UM with unethical behavior by its enforcement staff. UM can and should avoid similar criticism that it is being hypocritical in its reaction." 

Ultimately, it's the Trustees, not the President, who are in charge. The first obligation of a Board member is to become fully informed. If they're truly interested in becoming fully informed, they need go further than the NCAA's ByLaw 22.2, which, since 1994, has stated:

Each member institution, at least once every 10 years, shall complete an institutional self-study, verified and evaluated through external peer review. The self-study shall encompass the following operating principles:  

·      Governance and Commitment to Rules Compliance, including Institutional Control, Presidential Authority and Shared Responsibilities.

·      Academic Integrity [presumably like not whitewashing an All-American wide receiver’s admitted cheating and plagiarizing so that he serves his suspension during summer school]. 

·      Gender, Diversity and Student-Athlete Well-Being.

In the meantime, there's still that secret Notice of Violations. Last week, Leonard Abess, the Chairman of the U of M Board of Trustees, wrote in the Herald that, in reaction to the NCAA investigation, “Our administrators, staff and student-athletes have been forthcoming with information and transparency in their efforts to address any concerns." 

Isn't it time for the Trustees to be "forthcoming with information and transparency" by directing the administration to release the Notice of Allegations?