Begging The Question

Thursday, March 11, 2004

The Fourth Amendment Applies To R. Kelly, Too
A Florida judge has thrown out pictures (allegedly) depicting child pornography seized from the home of (alleged) singer R. Kelly. The judge said that police did not have probable cause for the search, which turned up pictures stored on a digital camera wrapped in a towel inside a duffel bag.

I haven't read the judge's order yet, but here is the deal according to the AP. Cops found drugs in a home Kelly rented for other people. So, they got a search warrant for the house where he was staying. While executing that warrant, police found "an unusual amount" of adult porn and video cameras. The cops knew that Kelly was facing child porn charges in Chicago, so they got a warrant to search for evidence of child porn at this location. Kelly's attorneys argued, and the judge apparently agreed, that the warrant was bad "because it was based on unspecified information from Chicago authorities and no link was established between the discovery of marijuana and the presence of cameras and child pornography." (quote from the AP story)

Again, I haven't taken any time to analyze this, and I'm no expert on the Fourth Amendment (and I have professors who would testify to that), but I'm not sure this is a bad search, or at least one that good faith can't save. I am generally in favor of strong Fourth Amendment protections, and I'm not arguing whether this is the kind of thing that police should be allowed to do. What I'm saying is that this sounds like the kind of thing law enforcement officers can do, under the current state of the law.

I'm not going to take the time to track down cases, so I may update this later after I take a look at my rarely-used materials from law school. But cops can develop probable cause to look for something when they happen to be looking for something else. The plain view and inevitable discovery exceptions to the warrant requirement implicitly recognize that police can validly be on the premises, discover contraband, and seize it right there, without needing to go get another warrant at all (although with inevitable discovery they have to show that they would have sought another warrant, or found it via an inventory search, or something, but it's not important here). I see cases fairly often when cops stumble across indications of crimes they weren't looking for in the first place. Also, police can rely on information from other jurisdictions -- I'm thinking of a case where a cop gets a radio report to be on the lookout for a suspect from a crime in another city, and then arrests the guy, without much knowledge of what the other cops know. (I promise to find this case later, but for now it escapes me)

One can easily imagine a case, where, say, cops were looking on a guy's computer, pursuant to a warrant, for evidence of child porn, and they see a folder marked "Cayman Islands Account." Can't they go get a warrant to open the folder and look for evidence of tax evasion? Maybe he's just saving up money in an account so he can take a vacation to the Caymans. What if all you know is that he is involved in a divorce proceeding and his wife has accused him of hiding money? Maybe that's not enough. But what if they know he was under indictment for tax fraud already?

So here, Kelly had been indicted on 21 child porn counts (some have since been dismissed, but not all). Cops, validly on the premises to look for drugs, find video cameras and "an unusual amount" of adult porn (whatever amount that may be). I would agree that the search was bad if all they had to go on was lots of adult porn and a video camera they were itching to press "play" on. But they also knew about the other charges. Under the law, as I understand it, I don't think the Constitution requires them to ignore that. At the very least, the cops executing the search relied on the probable cause finding from the judge who issued the warrant, and so I'm not sure how the good faith exception doesn't come into play.

If anybody has access to the judge's order, or has a different (and probably better) understanding of Fourth Amendment principles at issue here, I'd appreciate any help.

UPDATE: I did some checking on whether Florida law might differ from federal law enough that the judge's decision (which I still haven't seen anywhere) might be based on state law rather than federal law. I found out something very interesting. Florida's constitutional protection against illegal searches and seizures, Art. 1, sec. 12, includes a "conformity clause":

This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

Apparently, Florida courts initially rejected the good faith exception during the time it was being developed in various courts (but before it had been adopted by the U.S. Supreme Court in Leon). According to the West annotation, "In response, the governor, attorney general, state prosecutors, and the law enforcement community supported a joint resolution in the 1982 Regular Session, which would have engrossed a good faith exception onto the constitutional exclusionary rule. Significant opposition precluded its passage in the regular session."

But instead of constitutionalizing the GFE, the "compromise" measure was the conformity clause, punting the issue to the Supremes. Well, two years later, Leon came down. So, it's a part of Florida law now. Note that, if the U.S. Supreme Court has not yet addressed a particular Fourth Amendment issue, the Florida courts can interpret their precedents however they think they should, which may be more privacy-protecting than other courts. But once the High Court speaks, it trumps Florida courts' position on the matter. Other decisions have also held that Florida courts must construe the state contitutional provision on searches and seizures in accordance with federal Supreme Court holdings, but evidence may still be suppressed based on other provisions or statutes. So, that may be the deal with R. Kelly, although all the news converage I've seen so far made it sound like a probable cause issue, rather than, say, a violation of some statute dealing with the execution of the warrant.

I looked briefly at the annotations for cases applying the GFE. On the whole, it looks like the Florida courts have been pretty strict about applying the exceptions to Leon such as the one that says cops can't rely on a warrant that is obviously not supported by indicia of probable cause. But most of those cases dealt with informant credibility, as in cases where the tip wasn't verifiable or reliable at all. Also, courts have been unwilling to apply the GFE where the search goes beyond the beyond the warrant, but in Kelly's case, that would have been an issue if they had looked at the pictures on the camera with only the drugs warrant to rely on. But having gotten a warrant and apparently searching within its terms, I really have a hard time seeing how the GFE doesn't apply here. If the state decides to appeal, I hope to see the appeals court's decision on the matter, because circuit court orders are impossible to find, and I feel like I'm an art critic discussing a painting I've never seen. But, one mystery has been solved: the decision cannot be solely a matter of state law, thanks to the conformity clause.





It wasn't me, it was the one-armed man!
During his speech at a union rally in Chicago yesterday, John Kerry said "This is the most significant moment of crony government and crony capitalism that I've seen in my political life. And we've learned the truth of what George Bush thinks -- exporting our jobs is good economic policy. I believe that creating jobs here in America, keeping good jobs here and exporting goods, is good for our economy."

And then after the speech, but with his microphone still on he said, "these guys are the most crooked, you know, lying group of people I've ever seen."

His defense? "I didn't say it about the Republicans, I said it about the attack dogs."

Hmm....right, not Bush, but the "attack dogs." Whatever. Not every American is stupid blind with hatred for George Bush. Reasonable people can only conclude that Kerry's "defense" of his outrageous post-speech statement about the President is a lie. And not a very good one. Look, I don't care how much you dislike Bush, no one could buy Kerry's defense with a straight face. His post-speech comments track lock-step with what he said in the prepared speech and the "attack dogs" defense does not fit the context of the situation.

John Kerry says he's a fighter. If by "fighter" he meant, "I want to say rotten things and take cheap shots but not be held accountable for them" then he misunderstands the idea of what a fighter is. A fighter is someone who stands up and takes responsibility for his words and actions. John Kerry has tried to weasel his way out of responsibility for anything he has said, any position he has taken, and every vote he has cast for the last thirty years. This latest lame-o excuse is just more of the same.

It is no wonder that there are no affirmatively pro-Kerry supporters. The best he has been able to do is drum up some anti-Bush sentiment. If he thinks that can sustain him through election day (with a mountain of historical evidence against such a proposition) then I'll go ahead and declare it right now: Your next President of the United States: George W. Bush. Sandy Day won't even have to "vote" for him this time.

(Info via CNN)





You mean them little cubes you put in hot water and make soup? No, not the little cubes you put in hot water to make soup.
Via a highly-placed, confidential source, BTQ has obtained these exclusive photos of an extraordinary operation recently carried out by US Marines in southern Iraq. During a traffic stop, Marines conducted a search of a tanker truck and uncovered a large quantity of gold bars. The truck was headed for the border but the Devil Dogs put a stop to that nonsense. Well done, Marines. No surprise, of course - the USMC is not to be trifled with.

This is not the first time that US forces have stopped attempts to smuggle large quantities of gold out of Iraq. In May of 2003, Army forces seized a truck carrying something in the neighborhood of $500 million in gold bars as it was headed for the border. A Centcom press report on that event can be found here.

Anyway, enjoy the photos, and remember that the GLG-20s at BTQ are not decoys. And yes, the title of the post is from the surprisingly good Desert Storm movie Three Kings. Finally, for the curious among you, the price of gold was $400.30 an ounce yesterday and each gold brick pictured below weighs something in the neighborhood of 20 pounds.














Tuesday, March 09, 2004

By The Way, What's At The Bottom Of The Slope?
Somewhat inspired by my previous post, I had another question. What do people see happening when they gaze into the future and shudder at the world their opponets would have us live in?

I'm not talking about vague pronouncements of doom like "no respect for the rule of law" and "a cultre of hatred" or even "anarchy." I'm curious about the kinds of ways you see the opponents' goals manifesting themselves in action. Rioting in the street? Infanticide? Forced abortions? A new FOX reality show called "Who Wants To Marry Seabiscuit?" What?

For example, I support gay marriage. I don't think it will lead to legalized polygamy, but I'll have to deal with that in another post. But I also don't think it will lead to forced gay marriage or the eventual obsolescense of men. And I don't think it will mean that straight people no longer will get married.

Just using myself as an example, how does my support of gay marriage mean I have no respect for the rule of law? I don't have any desire to go looting and pillaging, but maybe I just didn't know that's where all this is headed. If it's inevitable, hand me a Molotov cocktail. And I also don't feel any less desire to get a date with a woman and maybe even marry one if I find one dumb enough to fall for me. I'm not worried that by then my chance to get married will be extinguished by the gays.

I support a woman's right to choose to end her pregnancy in most circumstances, but I don't want to force her to exercise that choice if she doesn't want to. I don't want to study up on eugenics, and although I'm not a big fan of kids, I don't want to prevent other people from having them. People who opposed legalizing any abortions worried that the availability of abortion would lead to more teen pregnancies, but those numbers have been falling for years. Why do people think that loosening abortion restrictions would reverse that trend? Do they see an epidemic of teen pregnancies? How many is that?

I support some regulations of firearms. But I don't want to take them away from those who own them, and I wouldn't want to lock up someone who shot an intruder in his or her home because the homeowner is a "menace to burglars." I think guns are dangerous and lots of people have no business fooling around with them, but I'm not worried that we're heading for Wild West-style shootouts on Main Street at high noon any time soon unless gun control advocates get their way.

I'm just curious about what people see when they peer down the slope. I think it's one thing to say that certain policy goals, if achieved, will leave us in a country where certain horrible things could happen, or are more likely to happen, or are facilitated in happening. But do you really think those things will happen?

I said below that one big problem people have is assuming the worst motives in their opposites. Another is assuming that their opinion is shared by most people, and that anyone opposing it is an extremist nutcase. (The left has been especially guilty of this of late.) After all, most people think they're "reasonable." Doesn't that, by definition, mean that people who don't think they way they do are "unreasonable"? (I'm not actually asking that, so don't answer.)

Sometimes it's a cop-out to say "reasonable minds can differ," and I sometimes take that dodge. But sometimes that's the best answer. I don't assume that, for example, opponents of gay marriage and legalized abortion are really anti-sex and want to require a chaperone if I ever get a date. If I oppose efforts to ban "virtual" child porn, do they assume I really aim to go molest children? Is that where they think that slope ends? I know some people do want to do that, but do people really think that if the Supreme Court strikes down the Child Online Protection Act, we will suddenly (or eventually) see ... what? An explosion in the numbers of rapes or molestations or divorces or credit card indebtedness or what?

I'm just trying to see things through the eyes of people who don't see things the same way I do. I'd appreciate any feedback.





Hitting the Brakes on the Slippery Slope
I have a question for our pro-life/anti-abortion readers.

Supporters of abortion rights often suspect "the worst" the anti-abortion crowd. Any regulation or limitation on the ability of women to get an abortion is perceived as an incremental assault in a larger war to take away all abortion options. Some of the most galling are things like regulations of room size and placement of water fountains in abortion clinics. Abortion rights supporters charge that measures like these are designed to make it prohibitively expensive to provide abortions -- cutting off the "supply" end of the supply/demand equation, if you will. I also find a little morbid humor in laws stating that the state won't execute a pregnant woman, as if the risk of that happening was even measurable.

I guess my question is, Are they right? Is the idea to make a concentrated effort to chip away over time, with no rest until the mosiac of regulations and prohibitions add up to a comprehensive ban on abortion? I assume that most abortion opponents perceive their chances of a one-fell-swoop accomplishment of that goal are slim. Are you saying, Women may be able to get an abortion legally, but we're going to make it somewhat difficult to do it? Or are you saying, We're not going to stop until women cannot get an abortion, whether through an outright ban or a maze of procedures and regulations? I realize that there may be some difference of opinion here. After all, abortion rights supporters are not monolithic in their opinions either.

But what I'm getting at is whether any kind of detente can be achieved. Are any of these regulations important as regulations, or are they only important because we're talking about abortion? (I think the pregnant-execution thing is likely the only limit on the death penalty some legislators have ever voted for.) Ultimately, if you knew that some manner of abortion would always be legal in America, where (if anywhere) would you stop? For example, if I were the Law Czar, and I said that third-trimester abortions would only be available when a panel of doctors agreed that the life of the mother was at risk; and that second-trimester abortions had to be performed in hospitals after a waiting period; and that first-term abortions would be available pretty widely with minor regulation (I just mean no waiting-periods or state-required lectures or anything, but still minimal safety regs) -- and I'm just picking a scheme I think most Americans could live with; I'm not saying this is perfect or that it's my preferred plan or anything, it's just an example -- would you say "no deal" or would you be willing to stop pushing for every little law you think can pass that pushes the line a little further toward an outright ban?

I'm not trying to pass judgment on your willingness to compromise. There are things I feel that strongly about, and reasonable minds can, and do, differ on whether abortion should be one of those things. But I think I would be willing to give up the "right" to a late-term abortion (which, of course, as a man, I would never be faced with anyway) if I knew that abortion opponents would stop there.

The problem is that I don't think I can trust abortion opponents to stop there, and that's why I'm posing these questions. I don't know enough about game theory to feel sound about this, but absent that information about your ultimate motives, I think the best option for abortion rights supporters is to oppose even these incremental measures that would still allow for plenty of legal abortions. The worry that you really are trying to take us all the way down the slope to a full prohibition prevents them from yielding any quarter.

Note that I think the same mechanism is active in the marriage debate. Supporters of "traditional marriage" fear that what supporters of gay marriage really want is to allow for the union of Farmer Brown, the farmer's daughters, and all the barnyard animals. If their goal actually is to take us all the way to that extreme, opponents of gay marriage have no reason to give an inch. But if the vast majority of gay marriage advocates were willing to stop there (leaving only a few extremists, as there will always be a few who will never compromise on marriage or abortion), and you knew that they would stop there, would opponents of gay marriage give in?

Let me be clear that I don't think these groups neatly overlap, or that the slopes are the same, or anything. I'm not equating gay marriage with "partial-birth abortion." I'm just curious if our readers would be willing to make these compromises, or if they think most of their compatriots would. I don't know the answers, but I'd like to hear your thoughts.





Perhaps Turnout Was Exceptionally High
I've discussed here a few times (most recently here) about problems with e-voting. Today the Los Angeles Times reported that California had all kinds of problems last week in its first experience using electronic ballotting. In 21 Orange County precincts, there were more ballots than registered voters. An additonal 55 precincts had turnout of more than double their averages. Thousands of voters were given the wrong ballots.

This looks like a case of human error, but the nature of the electronic voting systems makes it impossible to completely track down the problems. It also looks like the margins of victory were generally wide enough that the results wouldn't be affected and there won't be any recounts, but can we count on that fortuity in November, when many races will be close and turnout will be much higher?

(Link to the LAT story spotted at The Corner and Prof. Hasen's Election Law Blog and Daniel Weintraub's California Insider.





Bobblehead Bleg
If anyone has one of the bobblehead dolls of Chief Justice Rehnquist or Justice Stevens issued by The Green Bag, and would be willing to part with it, please let me know. I'm interested in acquiring them. Interesting trades considered. Thanks.





Burn, Baby, Burn
I recently made a comment attached to this post in which I referenced burning CDs. (How's this for a flimsy segue?) A couple of weeks ago, Denise Howell had a great post about a pending Ninth Circuit case that will decide the legality of peer-to-peer file sharing. The issue is whether the file-sharing networks (here Grokster and Morpheus), like VCRs, have enough non-infringing uses that they shouldn't be liable for contributory infringement even if some people use them to infringe copyrights. Her post has all the crucial info and plenty of links for further reading.





Analyze this
I went to bed late on Saturday night - around 2 am on Sunday morning, actually - after a midnight snack of french fries, a hamburger topped with bleu cheese and chipotle salsa, and three beers. Obviously, I am not on the Atkins. Well, as I slipped off into the warm embrace of Somnus my mind engineered one of the craziest dreams to help me pass the time until morning:

I had purchased a ticket for a 5-day, 6-night Caribbean cruise. The cruise was specifically for Lord of the Rings fans who had previously been Star Wars fans - think Boat Trip meets Trekkies. Peter Jackson was headlining the cruise and one of the highlights of the trip was that he brought many of the LOTR movie props with him.

We were about two days into the trip and in the middle of a lecture by Jackson on the importance of combining actors, miniature models, and CGI when alarms began sounding on the ship. A sailor ran into the lecture and shouted "We're under attack!" There was panic and people started scrambling everywhere. When I went to the side of the ship to see what was happening, low and behold, Jabba the Hut's barge from Return of the Jedi was rapidly approaching the ship. It was accompanied by several small speed boats. As Jabba's barge got closer, I realized that there was a figure standing in the bow of the barge - he was George Lucas! The hilarious thing was that he was wearing his usual jeans and plaid button-down shirt, but he also wore a Vader-like black cape. His cape was flowing in the wind as the barge came alongside the cruise ship. There was a commotion below and as I looked over the side I realized that there were Imperial stormtroopers boarding the ship. Lucas had a bullhorn in his hand. He put it to his mouth and shouted out "I am George Lucas and these stormtroopers are real! You will respect me! I am seizing this vessel!"

At this, I looked back into the lecture hall. Peter Jackson was still there, but he had donned a suit of Gondorian armor (I know, they probably did not make any armor in a 54 short, but it was a dream) and had drawn one of the prop swords. He looked at me and said, "Well, are you going to help me, or are you going to let George Lucas ruin the Lord of the Rings just like he ruined Star Wars?" Without a word, I picked up a prop axe that had been displayed on a table in side the lecture hall, and followed Jackson down a ladderway and onto the level of the ship where Lucas's stormtroopers were trying to board. Several of the ship's crew were engaged in hand-to-hand combat with the stormtroopers, and a John Wayne movie cheer went up from the crew as PJ and I leaped into the fray. That guy was lightning quick for being so portly. It was amazing. For some reason, the stormtroopers had only swords and clubs so I was able to avoid any blaster wounds. However, I grew rather exhausted from constantly swinging a battle axe. As my strength waned, we were joined by other cruise participants who had also taken up prop weapons and armor. The tide of battle swiftly turned against George Lucas. His barge continued to circle near the cruise ship and he never stopped yelling taunts through the bullhorn. His taunts did not avail him, though, and he was forced to seek refuge over the horizon once the ship's crew began using an Orc catapult to launch projectiles at Jabba's barge. As Lucas departed I could still hear the faint sounds of his jeers.

Exhausted from battle, I slumped down against the railing, piles of stormtroopers all about me. I looked over at PJ in his shorts and armored chestplate. He too was exhausted. As I wiped the sweat out of my eyes, I asked PJ if I could have his autograph. He laughed and then told me that he had never learned to read so the best he could do was mark an X. I said that an X would do just fine and then I started to laugh too.

At this point I woke up and realized that the sheet was wrapped around my neck like a garrote. I was covered in sweat and thoroughly disoriented. If you have read this entire post, then there is a good chance that you are thoroughly disoriented, too.





Torts and Guns and Tobacco
A few days ago, I had a post about the pending gun industry immunity bill. I am against the bill, in part, as I said there, because I think "the common law tort system and civil procedure rules are fully capable of weeding out the frivolous claims, and the industry ought to be liable (at least) when a manufacturer knowingly ship guns to dealers who knowingly sell guns to criminals." A reader countered: "[A]s to your point about civil procedure rules and the general trustworthiness of the tort system, I can only suggest you ask the tobacco industry how it feels about them."

At first glance, I think this analogy makes some superficial sense. But ultimately, I don't think it holds up. Here's the crucial difference for me: Guns aren't always bad for you, but cigarettes are. Guns do plenty of good things, like provide self-defense in some situations, and provide food in others. Cigarettes are a drug delivery system that, when used as designed, are never healthy. I'm not talking about instituting a Bloombergian nanny state where people aren't allowed to do things that aren't "good" for them. But the only good quality of cigarettes is the enjoyment people get from them. I'm not saying that's insubstantial or that this is reason to ban them; I don't want to do that. I'm generally willing to let people do things that are harmful to them if they want. All I'm saying is that this is all cigarettes have going for them, and under the "it feels good" rationale, we could start legalizing a whole bunch of other stuff that isn't legal now.

My point is that cigarettes are an inherently dangerous product that the tobacco industry marketed as safe. This brings to mind the old Dan Aykroyd Saturday Night Live character Irwin Mainway. Mainway was a sleaze who sold toys and Halloween costumes that no kid should get ahold of. One Christmas gift was a bag of broken glass, which Mainway claimed kids could use as prisms to learn about light and stuff. One Halloween costume was Human Flamethrower, consisting of nothing more than oily rags and a lighter. "Johnny Commando" included a working M-16, as I recall. My all-time favorite has to be the costume "Invisible Pedestrian." It was an all-black outfit. When challenged that this might, in fact, make trick-or-treating kids invisible to cars, Mainway retorted that kids are smart and know enough to get out of the way of a car. Besides, the package had a clear warning: "Not for blind kids."

Guns, in many ways, are like cars. They can be very dangerous in the wrongs hands, but can also be used in many good ways. (In a somewhat similar vein, Eugene Volokh had this interesting post comparing fingerprint recognition locks for guns with breathalyzer locks for cars.) But I can sue a car company if, like the infamous exploding Ford Pintos, the company knew it was marketing an inherently dangerous product, and did so misleadingly. That's what happened with cigarettes. And no one is proposing immunizing the auto industry from liability, despite the thousands of deaths each year due to car accidents, are they? I don't want everyone who is injured in a traffic accident to be able to recover billions from the car manufacturer, but I'm glad that people could sue when their Pinto blew up.

Am I prehaps naive to hope that judges (and juries) will restrict liability in gun suits to cases like the Pinto, and to hope that people won't be able to sue the gun manufacturer every time a gun is used in a dangerous way? Maybe. But the answer, if I'm wrong, is to rewrite the product liability tort laws, or to throw out jury verdicts that overstep the bounds of those laws. It isn't to exempt an entire industry from every suit. If some latter-day Irwin Mainway is running a firearms company, and is, for example, knowingly selling guns to dealers who knowingly sell guns illegally, he needs to be put out of business. These are the kind of people a gun immunity bill would protect. Why would anyone think that I have a right to sell you a bag of broken glass and tell you it's safe?





Call me when you catch bin Laden, and I'll fly over, claim the reward, and we can split it 8,500 ways
As some of you may know, my brother is a member of the U.S. Army's 10th Mountain Division. He has been stationed in Afghanistan since August of 2003. He is scheduled to return to the States soon (Lord willing and the creek don't rise). He and I don't get to talk very often, and his letters home are sporadic. But when I do speak with him or get the occasional letter, he always has good stories. Today, I thought I would share with you some of the things he and I have talked about, some stories of courage from the war in Afghanistan, and my general frustration with the lack of news coverage from Afghanistan.

1. The enemy we face in Afghanistan: the Hajis
The people of Afghanistan have been at war since at least 1979-80 when the Soviets rolled in and installed a puppet government. The Army refers to the Taliban / al Qaeda forces as "Hajis" which is the Afghan equivalent of Vietnam's "Charlie," Japan's "Japs," and Germany's "Krauts." Yes, it is derogatory. Yes, it is probably a perversion of the word "hajis" which refers to Muslim religious pilgrims during the Haj. No, I don't feel like censoring the blog for ultra-sensitive readers.

The villages and towns in southeastern Afghanistan are openly hostile to the Americans and almost every village has its cadre of anti-American forces. Sometimes villagers will cooperate with the Americans and sometimes they will not.

It is pretty easy to distinguish between Afghan fighters and foreign fighters simply from their skill in battle (or lack thereof). To put is succinctly, the Afghans are veterans of a lifetime of warfare, the al Qaeda guys are punks, and it shows.


2. The weapons and tactics of the enemy: "RPGs suck!"
This phrase has been repeated in all my brother's letters and most of our conversations. He has been the ostensible target of innumerable RPG rounds. Luckily, he has not suffered any injuries as a result. However, he has remarked that it is very unsettling to see the vapor trails of RPGs headed in his general direction. Fortunately, RPGs are difficult to aim accurately when the user is taking fire from a convoy of American troops equipped with M-4 carbines, M-240 machine guns, and Humvee-mounted Mk 19 Automatic Grenade Launchers.

RPGs are widely available and one of the principle weapons employed by the Hajis. The typical enemy the Americans have faced is a small "unit" of 3-5 men. Each man is equipped with an AK-47, including 6-10 full magazines, an RPG launcher, and 5-7 RPG rounds. That is a lot of firepower for 3-5 men.

These small units also initiate road-side ambushes using cell-phone detonated land mines, or "IEDs" ("improvised explosive devices" in Army parlance). This is a tactic that is much in use in Iraq as well.

Occasionally, the enemy will use mortars in a "shoot and scoot" tactic. They will take up a firing position, drop a few mortar rounds on an American patrol, and then pack up and haul ass to another firing position before artillery, air support, or return fire can knock them out. This tactic is especially appealing when the American patrols are in a valley and the enemy can take up positions on mountains above the valley.

3. The Chinese connection: or Why doesn't the Afghan government pass an assault weapons ban?
A major component to the operations conducted by the 10th Mountain is searching for weapons caches. Sometimes the locals will lead the Americans to weapons caches and sometimes they are discovered through interrogation. What is remarkable (to me, anyway) is that these weapons caches are huge and are primarily new weapons. For example, one cache my brother told me about was filled with AK-47s, ammunition, RPG launchers (still in the boxes), RPG rounds, rockets, and mines. All of the weapons and material were new and all were from China! Obviously someone is financing the operations in Afghanistan and someone is getting the weapons into the country. Finding those people is a top priority - and one which has enjoyed some success recently.

4. Who are those long-haired hippies in the mess hall and why are they wearing short shorts?
The American operations in Afghanistan are sprinkled with a blend of special operations "operators" from all the branches of the armed services. For the most part, these guys operate independent of the regular infantry operations in which the 10th Mountain is involved. They are spearheading the hunt for bin Laden & Co. and they operate in the "free fire" zone near the Pakistani border. Anything that moves in the free fire zone is a potential target for the special operations teams.

My brother commented on just how conspicuous the Navy SEALs are in the mess hall. At base, the SEALs always wear their BDU shorts. They are tough guys, so I won't pass judgment on the wardrobe choice, but suffice it to say that the BDU shorts are short. Anyway, the SEALs stick out not just because of the short shorts, but also because they look like hippies with long scraggly hair, full beards, and dark tans. They are immediately identifiable - and envied. The special ops guys get (and deserve) a tremendous amount of respect from the regular units, and every grunt at one time or another wishes that he was in special ops. Not only do they get to wear their hair long, but they have the best stories (more on that later).

No doubt the hair helps them blend in when they are out on missions. I only hope they don't patrol the Afghan desert in their Daisy Dukes.

6. There is no story here. Or, maybe, it is one of the most inspiring stories of bravery in battle ever told, but CNN doesn't have time to fit it in between Janet Jackson's "wardrobe malfunction" and the Scott Peterson non-story.

It is frustrating to have a brother stationed in Afghanistan because the major media has decided that there is no story in Afghanistan and, thus, I have very few sources for news from the region. Defend America is about the only consistent source of news from Afghanistan but it is government run and often lags several days behind. For example, I know that three 10th Mountain soldiers were injured on March 6 when a mine exploded under their Humvee, but I cannot find out anything more about that event. If it had happened in Iraq I would have too much information on the event, but I digress.

I was going to share with you some stories my brother told me, but: (1) I don't know if they are really for public consumption (and I don't want to get him in trouble) and (2) I don't remember precisely all the details and the media cannot help me verify them, so I won't give you those stories yet. I don't want to misstate anything. However, if you are interested in some stories of bravery and courage from Afghanistan, I will point you to the following stories: here, here, here, here, and here. Those stories are mostly short and absolutely worth your time.


The post title is a distillation of the scheme I have concocted with my brother to claim the $25 million bounty on bin Laden. The soldiers who capture bin Laden cannot claim the reward, but suppose, just suppose, that a certain soon-to-be-unemployed judicial clerk was to turn a certain terrorist mastermind over to the authorities. Wouldn't he have a claim to the reward money? Splitting $25 million in equal shares with every American warrior in Afghanistan would still net me about $2900, which more than covers the airline tickets. I could think of worse ways to spend Spring Break...



Monday, March 08, 2004

Milbarge v. The Man
I recently became a plaintiff in a class action lawsuit. This was a suit brought by the Attorneys General of most of the states against the music industry (the labels and retailers) for over-pricing compact discs. I saw an ad in a magazine notifying me that if I had purchased a cd in the specified period, I was part of the class. It included instructions for signing up, and it was incredibly easy to do -- I just went online and filled in a few fields and that was that. More information about the suit is available here. This was a "settlement class," so the class certification and the proposed settlement were all tied up together in one step. (I didn't even know which district had this case, but it turns out it's Maine.)

Last week, my check came. (We won!) The settlement fund comprised "a total amount of $143,075,000 ($67,375,000 Cash and $75,700,000 Non-Cash Consideration)." In the final order, the court approved some $20,000,000 payment to class counsel for fees and costs (including substantial costs for publishing the notice and setting up the registration mechanism). I haven't looked too hard, but I haven't seen a total number of persons who, like me, signed up to get paid. But my check was for $13.86. Chances are I'll forget to declare it when next year's tax time roll around. Oh well, mo' money, mo' problems.

(Aside: One of the definitions in the district court's order made me chuckle. One example for "retailer" was "rack-jobber," which I had never heard, but it reminded me of the time Monty Burns called the grocer (or the grocery store itself, I'm not sure which) a "food-jobber.")





No Charge For Your Milbarge
What I am doing at work: Spinning my wheels. I've been here long enough to see the same people a few times. Our policy is that, most of the time, if a staff attorney handles one case from a party, that attorney gets everything from that party. So, if I did the direct appeal, I get the 2255 habeas motion and then the motion to file a successive habeas and whatever else comes along. If someone is a "frequent filer," I get all the sundry documents from that litigant (usually a prisoner). Also, all the parties in a consolidated case (like a drug conspiracy) end up with me, as do appeals after remands when the district court needs to do something over. I understand the value of this. After all, I know the history of the case as well as anyone involved. But it becomes a hassle when I've got a bunch of other cases, and then a few of these repeat customers come back. The people who assign cases try to take into account our workload when they assign new work, but the tie to previous litigants trumps that and can cause me to get more cases at once than I otherwise would.

Also causing an increase in my workload is a recent case in which a judge disagreed with my recommendation. I thought I was done with the case, and then all of a sudden I have to do it again. This doesn't happen much overall, and has only happened a handfull of times with me personally. And, so far, none of the judges have disagreed with my bottom-line proposed resolution. It's been a matter of how to reach it. A couple of times a judge has decided that a case is worth arguing, and a time or two it's been a matter of asking me to consider a certain case or line of argument. Otherwise, it's been situations where the judge wants me to go through certain procedural machinations that often revolve around internal operating procedures more than the federal rules or anything. But so far, the judges have always been nice about disagreeing with me, even though they certainly don't have to be.

What I am doing at home: Still cleaning. Also, trying to get used to using an electric razor for the first time. It's not perfect, but it's good enough for most days. I just hate shaving so damn much, and will do anything to make it easier and quicker. As much as I hate shaving, I like being clean-shaven, so I don't want to half-ass it.

What I am reading: Still working on old magazines and House of Leaves.

What I am watching: Lots of college basketball, and the other night I saw Kissing Jessica Stein. A cute movie, but mostly I watched it because it was on when nothing else was and it reminded me of a funny anecdote from an old college friend that doesn't make much sense unless you knew her. The gist of it that back when the movie was playing in theaters, she and her boyfriend took a survey or entered a contest or something and ended up with passes to a movie, and their choice was Kissing Jessica Stein or Blade 2. They chose the lesbian romantic comedy, which was funny because my friend was rather uncomfortable with displays of lesbianism. Of course, as I remarked, the only movie over which I would choose Blade 2 would be Blade 3.

What I am listening to: Well, I was going to listen to Emmylou Harris, in honor of "Heaven Only Knows" turning up on The Sopranos last night. But, for some reason my cd player didn't want to read the disc, so I've been listening to The Band.

What I am thinking about: The Blackmun papers. I find this kind of stuff terribly interesting, even when it's merely telling us stuff we already knew.

What I am not thinking about: Whether George Bush's campaign ads should be using imagery from Sept. 11 in the way he is using it. But let me just say this. If the Democratic primary voters based their decision on "electability," what's going to happen when Kerry loses? What do you think the ratio wil be of (a) those voters who acknowledge that their idea of who is electable is flawed, versus (b) those voters who refuse to believe this, and instead blame the Republicans for tricking everyone else? I had plenty of conservative friends with the same opinion of Bill Clinton's victories, and I see the same thing happening all over again.

Morsel: Piggy-backing on Fitz's theme, the only time I've been to the emergency room as a patient was when I was a kid and my brother hit me in the forehead with a baseball bat. I am pretty sure it was accidental. I had a little bump, and they checked for a while to make sure I didn't have a concussion, but I was okay. Remind me sometime to tell you about the time my brother hit me in the head with a baseball bat. Don't worry, I turned out okay. But that reminds me...one time my brother hit me in the head with a baseball bat.





Fitz-Hume Chapter 4: The Legend Of The Rent Was Way Past Due
What I am doing at work: Drafting a discovery order. The party to whom it is directed has already indicated that it will refuse to comply with the order. Nice. Nothing like that lack of personal jurisdiction over the parties to really help an ALJ control the course of litigation.

What I am doing at home: More fly tying. More running. I am going to grill steaks for dinner tonight.

What I am reading: John Gierach's Trout Bum - This may be my favorite book of all time (certainly a top 10) and I recommend it without hesitation to fishermen and non-fishermen.

What I am watching: School of Rock on DVD - one of the best movies of 2003 and featuring one of the great rock anthems of all time, The Legend of The Rent Was Way Past Due ("I pledge allegiance to the band of Mr. Schniebly, and will not fight him for creative control...")

What I am listening to: Essential Willie Nelson

What I am thinking about: My job search; trying to figure out how to pay my taxes

What I am not thinking about: College basketball

TMI (too much information): I was in a car wreck that was so horrific it was featured on CNN for two days. I got to ride to the hospital in an ambulance and even got to see a priest in the ER.



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    Milbarge Recommends

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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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