DoJ's Gag Order On Reason Has Been Lifted — But The Real Story Is More Outrageous Than We Thought

Last Friday the folks at Reason confirmed what I suggested on Thursday — that the U.S. Attorney's Office for the Southern District of New York, after hitting Reason with a federal grand jury subpoena to unmask anonymous hyperbolic commenters, secured a gag order that prevented them from writing about it.

Nick Gillespie and Matt Welch describe how it all went down. Read it.

So, the truth is out — and it's more outrageous than you thought, even more outrageous than it appears at first glance.

What, you might ask, could be more outrageous than the United States Department of Justice issuing a questionable subpoena targeting speech protected by the First Amendment, and then abusing the courts to prohibit journalists from writing about it?

The answer lies in the everyday arrogance of unchecked power.

The Subpoena and the Gag Order: Rote Over Substance

Throughout this story some people have suggested that there may be hidden facts, unknown complications, that justify the government's conduct. Now that Reason's journalists can speak, we can see that there's no there there.

First, the subpoena. Some have argued that the Department of Justice must have had information spurring them to use the grand jury to pierce the anonymity of people engaged in protected political speech. Not so. As Reason's report shows, Assistant U.S. Attorney Niketh Velamoor never articulated any specific basis to fear the bluster of these commenters — any more than he did when I spoke to him.

Saturday I interviewed Mike Alissi, publisher of Reason, who confirmed that Velamoor never suggested that he had any basis to view these as true threats. In fact, he seemed uninterested in the distinction between protected speech and true threats, and refused to narrow the subpoena to carve out the patently non-threatening "special place in hell" commenter. There is no secret ticking time bomb, no wizard with a woodchipper, no classified justification.

This was the Department of Justice targeting speech because it could.

Next, the gag order. Reason has published the gag order. As I suspected, the government relied on Title 18, United States Code, section 2705 to justify it. That statute lets a judge issue a gag order prohibiting disclosure of a subpoena if the government proves the following dangers:

(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

Now look at the gag order:

Upon the application of the United States pursuant to 18 U.S.c. § 2705(b):

1. The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.

And with that, United States Magistrate Judge Frank Maas ordered that American journalists could not report on a government abuse of power for 180 days.

This was not a review by a neutral judicial officer; it was a rubber stamp, obediently regurgitating back the statutory factors without reflection or any finding of fact. The Magistrate took the government's word for it, because of course, the government never misleads federal judges.

Note the "one or more of the following," showing that the finding is formulaic, not based on anything specific. Unduly delaying a trial? How could disclosing the subpoena possibly delay a trial when there are no charges, and never will be any charges because the comments being investigated are so clearly protected by the First Amendment? No. The statutory factors aren't all there because AUSA Velamoor presented actual particularized evidence of them and Judge Maas agreed based on evidence that they were present; they're there because they are in the statute and the government and the court, hand in hand, are just checking off boxes on a form. There is no hint that Judge Maas, let alone Velamoor, gave any consideration to the fact that the targets of the gag order were journalists, or that the underlying subpoena poses grave First Amendment concerns. Here, the theory that executive power will be checked by the court was a farce.

You can buy a rubber stamp for five bucks. Your tax dollars rent a Magistrate's rubber stamp at a hundred fifty thousand a year.

The government hasn't unsealed its application for a gag order. I hope that someone will use legal process to compel it to do so. Here's my prediction: when it comes to light, it will contain no more substantive information than appears on the face of the subpoena. That is, it will merely say "these people said these things, we want their information, therefore, give us a gag order."

Reason also published AUSA Velamoor's letter asking that the gag order be lifted, and the order lifting it. Velamoor correctly noted that the order should be lifted because the subpoena was released to the public on June 8, when I published my initial post, and was widely known to the public. But Velamoor waited 11 days after that post to ask that the order be lifted, and Reason informs me that he only did so when its lawyer was on the brink of filing a motion to lift it. What was the possible justification for keeping Reason gagged for those 11 days?

Judge Frank Maas, by the way, is a colleague of Judge Forrest, the target of the questioned language and the subject of the subpoena. They work in the same courthouse.

Law Enforcement Is Better Than You: The Same Rules Don't Apply To Cops And Their Lawyers — Thug Life!

Gillespie and Welch also describe how AUSA Velamoor conveyed the gag order. Reason's attorney, Gayle Sproul, called Velamoor, told him that she represented Reason, and tried fruitlessly to reason with him. Velamoor blustered, then sought and obtained a gag order. But he didn't send it to Reason's attorney, with whom he had spoken only hours before. Instead, he sent it directly to Alissi, Reason's publisher:

Mr. Alissi,

Regarding this subpoena, I spoke to someone who said she was an attorney representing Reason in connection with this subpoena. The attorney indicated that Reason intended to notify the individuals referenced therein about the subpoena. The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation.

I have obtained the attached Court Order prohibiting Reason from notifying any third party about the subpoena.

Please forward the Order to the attorney and any other individuals who should be aware of it.

Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney.

Niketh Velamoor is a goon hiding behind a badge. That he went to Harvard simply makes him an unusually snobby goon hiding behind a badge.

If I did that, I'd be disciplined. If Gayle Sproul did it, she'd be disciplined. That's because nearly every jurisdiction prohibits, and recognizes as unethical, directly contacting a client who is represented by counsel on the subject of your communication. That prevents lawyers from tricking the clients of other lawyers into ignoring their counsel to their detriment. New York's Rule 4.2 of the Rules of Professional Conduct governing lawyers is standard:

In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

So will Niketh Velamoor be disciplined for breaking this rule?

Don't be ridiculous.

Even if state bars reliably disciplined prosecutors for misconduct — and this never happens  — prosecutors are protected by a special rule. Judges — judges just like Judge Frank Maas, who issued the gag order — have decided that prosecutors need the power to make end-runs around lawyers during the investigation phase of cases, and that this conduct is therefore "authorized by law." Courts have decided that it would be too burdensome to require federal prosecutors to abide by local ethical rules,  rules that apply to literally every other lawyer in the United States, and too restrictive of law enforcement to prevent them from making such pre-indictment contacts as they see fit.

But consider this incident. What legitimate, ethical need did AUSA Velamoor have to contact Alissi directly instead of responding to Reason's lawyer? How was it necessary for effective law enforcement? How would restricting his communications to Reason's lawyer be burdensome? It wouldn't. But the courts reflect America, and America has embarked upon a course of almost canine deference to police and prosecutors.

It is, too often, enough for police and prosecutors to say they want to do something. Who are judges to say otherwise?

Replace "Inidan" with "any ordinary American." Replace "Cowboy" with "cop."  This is modern law enforcement.

Replace "Inidan" with "ordinary American." Replace "Cowboy" with "cop." This is the state of modern law in America. Our apologies to the Indians.

Threats, Deliberate and Indifferent

It's tempting to believe AUSA Niketh Velamoor has some specific hostility towards Reason, or libertarians, or people who comment on the internet. But that's not the truth. His conduct is more consistent with the great tradition of entitlement and arrogance that comes from giving a little man power.

No offense, Mr. Velamoor: I was an entitled, arrogant little douchesquirt when I was a federal prosecutor, too. You can hardly fail to be when you're handed such power over people's lives at twenty-six. "Power doesn't always understand that it is power," Gillespie says aptly. A fish doesn't know it's in water; a prosecutor doesn't necessarily perceive that he or she is swimming in the power to terrify, the power to chill speech, the power to destroy lives with no more reflection than you or I might use to phone in the least demanding task of our day.

The prosecutor is just watching the clock. The job is doing him.

Velamoor's conduct was threatening throughout — not threatening like a stalker or a foe, but threatening like a tired parent who wants obedience and gets angry with anything but quick compliance. The initial form letter accompanying the subpoena noted that while disclosing it was not forbidden, "disclosure of the existence of this investigation might interfere with and impede the investigation." What does it imply when a federal prosecutor tells you that?

Most people interpret it to mean that, if the prosecutor decides you've disclosed it in some undefined way that thwarts his or her investigation, you may be the prosecutor's next target. That's certainly what Velamoor implied when he told me on the phone that he was going to "look into" how I got the subpoena, and what he strongly suggested to Reason's lawyer when he told her that Reason was "coming close" to interfering with a grand jury investigation by doing exactly what they were entitled to do and exactly what the letter said they could do. Later he told Reason that he had "preliminary information" that they had violated the order and that he was "looking into it," yet another threat. It was a threat premised on a lie, since Reason only sent the subpoena to the targeted commenters before the gag order was issued, and because Reason didn't send it to me.

It's easy to dismiss this kind of government intimidation when you're not its target. It's quite another thing to live it.

Reason's staff was concerned from the start. Velamoor delivered the subpoena by calling the Washington D.C. office of Reason, barking at a God-damned intern (bless the poor intern's heart), and demanding know where he could send a federal grand jury subpoena. Once the subpoena arrived, and then quickly after the gag order, the team experienced what both Alissi and Gillespie described to me as alienation and loneliness. They were concerned about discussing the matter even in-house, they knew that they couldn't contact friends and colleagues outside Reason for guidance and support, so they stewed in it on their own. They couldn't find out if other people had experienced the same thing and how they had dealt with it.

As Velamoor repeated his allegations of a violation of the gag order, the impact was more and more chilling. They knew they hadn't done anything wrong, but also knew that didn't matter. "Being innocent doesn't mean you're safe," point out Alissi. Alissi and Gillespie both viewed the subpoena, and the gag order, and the purported investigation of a leak as ridiculous and bizarre — a preposterous waste of resources. Gillespie called the accusations "comical" and admitted his first response was incredulity, building to rage. But what was both deeply concerning and infuriating was that it really didn't matter whether Velamoor was proceeding from malice, from bias, from indifference, from kissing up to a judge, or from sheer incompetence. He had the power to destroy lives no matter how or why he exercised it. The notion that he might launch investigations and prosecutions out of stupidity was, Gillespie said, more frightening than the prospect that he was some sort of Machiavellian genius.

(Which he isn't.)

And so, for the fifteen days from the subpoena to lifting the gag order, Reason's staff fought anger and anxiety, and was held hostage from reporting on an important First Amendment story at the core of their mission. They didn't, and couldn't, know how it would come out, nor how Velamoor would exercise his power over them. Would they have to change what they wrote about? Would they be forced to restrict the free-wheeling nature of their comment section?1 They knew they could fight for their principles — but knew just as well that fight could be financially and personally ruinous, if Velamoor decided to make it so.

Had he chosen to push his power play, Velamoor could have bankrupted Reason.

The Bright Side

This episode invites pessimism. But Nick Gillespie suggests that it should encourage us, because it showed how difficult it has become for the government to get away with silencing us. "We're in a better place in terms of free speech than we've ever been as a country," he says, citing both culture and technology. "It's harder and harder for the government to shut down the conversation." Certainly things didn't go the way the government hoped here.

The challenge is to use Reason's fifteen days of enforced silence as a catalyst, not a deterrent. Technology is only as effective as the people who wield it. We need to be committed to watch for, examine, and report on abuses of power like these. More people need to tell their stories of encounters with it. "No one knows how often this happens, or who is the target," said Gillespie, who emphasized that we ought to be worried about anyone getting a gag order, not just a professional journalist.

"Unless people speak up, and unless people repeat the story, we won't have a good sense of how this power is abused." We also need to resist the temptation to filter our vigilance through partisanship. Many people have responded to this story with comments about the Obama Administration, a purely fatuous reaction, as though Obama has time between his golf outings and Steve Wonder concerts to censor a small magazine — but the danger will remain no matter what flavor of politician is in charge. "Power is nonpartisan," says Gillespie.

In Closing, An Offer

The commenters targeted in the subpoena are probably worried about a knock on the door. That knock may come. I don't think it will be accompanied by an arrest warrant, but it will be accompanied by petty thuggery and the threat of power, banal or not. Commenters: shut up. Ask to talk to a lawyer.

And drop me a line: there are many defense attorneys outraged by this, and we'll find you counsel, pro bono if needed.

FEAR THE LIBERTARIAN WOODCHIPPER OF DOOM!

FEAR THE LIBERTARIAN WOODCHIPPER OF DOOM!

I'm indebted to my friend and co-blogger Patrick for his work on this series.

If you are interested in this story, check out coverage by Scott Greenfield and Paul Alan Levy.

  1. Reason commenters are still rather put out that we spoke ill of them. Now that this is wrapping up I should make amends, with a nice lunch or a fruit basket or goat porn or a cockpunch or whatever.  

Last 5 posts by Ken White

Comments

  1. Mel Famie says

    Nutpunch, Ken, not cockpunch. Sheesh.

    Seriously, the way you ended this column today convinces me that you should get a medal.

  2. That Anonymous Coward says

    So we figured out they read 1984, now it becomes clear that they also read Animal Farm and took it to heart.
    Everyone is created equal, but some (with power) more equal than others.
    It is disturbing to see how this played out, the time & resources wasted on pursuing what looks like petty thuggery to silence people who made someone mad. Didn't make anyone fearful (and if it did they are unfit for the job they do) but it made them mad… and the over the top response sums up how Justice is now meted out. It is to serve those with power against those they dislike.

  3. A Serious Man says

    Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney.

    Niketh Velamoor is a goon hiding behind a badge. That he went to Harvard simply makes him an unusually snobby goon hiding behind a badge.

    You are an American hero, Ken White.

  4. SloopyinTEXAS says

    You know you're always welcome to lunch on me at the Petroleum Club if you're ever in the DFW metroplex.

    And I'm sorry if I bristled a bit too much at your initial assessment of those of us who frequently comment on H&R. We're a proud lot.

    As for Velamoor and that assclown Bharara, we can only hope a president is elected that runs them and their ilk out of town on a rail and reestablishes a DoJ that values the constitutional protections were supposed to enjoy. Either that or I hope they find out what the business end of a Woodchipper looks like.

  5. says

    Didn't make anyone fearful (and if it did they are unfit for the job they do) but it made them mad,

    AC: True courage lies not in being unafraid, but rather in facing fear and doing what must be done in the face of it.

    I'f you're not a little frightened when faced with federal prosecution, especially for acts as subversive as complaining about the government, perhaps you're not sufficiently compos mentis to be entrusted with barrels of ink or buckets of bits.

  6. Jon says

    "Reason commenters are still rather put out that we spoke ill of them. Now that this is wrapping up I should make amends, with a nice lunch or a fruit basket or goat porn or a cockpunch or whatever."

    I wept non-stop when I saw Ken White say mean things about me, so I don't know if I can forgive you for all the hurt you've caused to my feelings.

    Wept non-stop, Ken, and I'm an ugly crier.

    I guess the fact that you've been so instrumental in standing up for the free speech rights of Reason means I ought to be more forgiving, but I'm petty, cruel, and vindictive, so there are no guarantees.

  7. says

    As a legal layman, I think this was the part I found most outrageous, from Velamoor's note to Alissi: "The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation."

    In other words, "I want to silence you! Why won't you remain silent until I can silence you?!?"

    The woodchipper at the end was an awesome touch. You are the wind beneath my wings.

  8. JW says

    Put me down for a goat basket.

    I'm not put out so much condemnation of the commentariat, we can often be clownish jerks (which Nick and Matt acknowledged far better than anyone else so far), but of the ritual genuflection of the Very Serious Libertarians to distance themselves from those boorish slobs who use the wrong fork for salad. It's beyond tedious.

    All that said, THANK YOU for your and Patrick's efforts in calling these abusive twats out.

  9. SloopyinTEXAS says

    Prosecutors can be a petty and vindictive lot. Most lay people would agree with that. But this is a special type of petty when you intentionally disregard the law and directly contact a party to a subpoena that has legal counsel.

    If my lawyer contacted a party to a lawsuit directly after he had been notified they had counsel, he'd be severely punished. But Velamoor and Bharara will likely end up moving up the chain and will ultimately have more power over Americans than they have now or will, at the least, enjoy a cushy retirement paid for by the very people they would seek to put under their thumb.

    Is a Woodchipper too good for them? Perhaps. Perhaps they should be prosecuted for their intimidation and thrown into GenPop at the nearest federal supermax prison…with a big sign on their backs that say "Assistant U.S. Attorney".

  10. Dan T. says

    The government in power hassling opposition news media is something I expect of tinpot dictatorships.

  11. Kevin says

    Now that Niketh Velamoor is demanding that google and other search engines take down results linking him to this – how do we make sure that the internet doesn't forget?

  12. Je suis woodchipper says

    Judge Frank Maas put his $5 rubber stamp on a gag order he didn't bother to read to kiss the ass of a judge named Forrest, not Franklin.

  13. Loren says

    Judges at all levels need to always be mindful that they are supposed to be a check on the executive. They are supposed to question the representations of the government at least to the point that there are some factual basis provided. They are not supposed to be a rubber stamp.

    I would like to at least see some statistical reports on the secret FISA courts, of how many warrants were requested and how many granted? I suspect it is nearly 100% grant rate, and I doubt the agencies really restrain themselves from false requests that well.

  14. Kilroy says

    As an ex-prosecutor, I disagree with your take on the purpose of contacting Reason directly instead of an attorney that you've only had a phone call with. Generally, I would have refused to discuss a case with any attorney that had not entered an appearance or provided a letter of representation. While it probably would have been a good idea to cc the attorney, there was no indication of actual representation other than a phone call, which wouldn't be enough under a case in my jurisdiction. Other than that, case pisses me off something awful.

  15. TimL says

    Here's what bugging me… how does this turn out if someone hadn't leaked the original subpoena, pre-gag order, to Ken/Popehat.com?

  16. Jordan says

    Are any of the assorted government clowns involved in this sad state of affairs present on Twitter? I can't check at work. I'd imagine their feeds would be pretty entertaining right about now…

  17. SloopyinTEXAS says

    Kilroy, in the piece by Nick and Matt, it's made pretty clear that the attorney contacted the AUSA's office with Reason reps present. Velamoor knew she was their rightful representation.

  18. Aaron S. says

    Mr. Velamoor should be ashamed by his unprofessional behavior. Specifically, the cover letter reads that the subpoena has been issued "in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury." It is completely inappropriate for an AUSA to accuse a federal grand jury of conducting a felony.

  19. Kilroy says

    @Sloopy Hadn't read that yet, but doesn't really change my position on that topic. Phone call not enough to establish representation. File always had to be papered. I'm in the civil world now, but still same guideline regarding representation. Until an actual appearance or letter of representation has been received, correspondence goes directly to the party.

  20. Bobarian says

    TAC:So we figured out they read 1984, now it becomes clear that they also read Animal Farm and took it to heart.

    That is because they use them as instruction manuals.

  21. Flanders says

    You are a wonderful, wonderful person Ken. I so greatly appreciate you bringing this whole outrageous debacle to light!

  22. SloopyinTEXAS says

    Kilroy, but it was ok for Velamoor to discuss the details of the case and to deny specific requests made by Sproul when they talked? If he didn't recognize Sproul as their legal rep, why discuss the details of the case and acknowledge requests by her on their behalf? Wouldn't that have been the correct time for him to notify Sproul that he would only speak to her if reason notified him of their retaining her as counsel

    He acknowledged in the letter to Alissi that he should forward the gag order "to the attorney", which was a direct reference to Sproul from an earlier paragraph in the order.

    So he discussed the case with Sproul as their counsel, he identified her in the gag order as having contacted him and directed them to get the gag order to her, yet you want to give him leeway here as acting in any way remotely considered ethical?

    Is that what an ethical lawyer does?

  23. Kilroy says

    @Sloopy That was I was saying. He really shouldn't have been talking to the attorney in the first place. Ken seems off base with his criticism for sending the letter to Reason when that part wasn't improper.

  24. SloopyinTEXAS says

    He acknowledged Sproul as their counsel in the letter. Which means the letter should have been sent to her.

    Or he should have never discussed the case with her and notified reason that someone was passing herself off as their attorney.

    You're letting him have it both ways, it would appear. Once he was given her contact information and discussed any part of the case, he acknowledged her as their counsel. So he's either an idiot that doesn't follow procedure when contacted by an attorney or…he's an idiot that doesn't follow procedure when notifying a potential target of a court order.

  25. Kilroy says

    Not letting him have it both ways. Specifically saying he shouldn't have discussed the case with the attorney. The letter was fine. That's one way.

  26. says

    I understand that some prosecutors use a "no communication with lawyer until I have a representation letter or formal appearance" policy. I'd only note that, if I followed such a policy, and communicated directly with clients I knew to be represented because I didn't yet have a written statement of representation, I'd be disciplined — as would any other non-government attorney.

  27. Kilroy says

    Ken: citation? Patrick can probably speak to this as well, but insurance companies have the exact same policy as well. Just because they are contacted by an attorney doesn't mean anything until the actually get the paperwork. works the same way in collections and I really can't think of any case where a phone alone would suffice to show a party was represented. There is so much in the case to be angry about, that just isn't one of them.

  28. SloopyinTEXAS says

    But isn't that the more egregious offense? Discussing a case with counsel and then contacting a target of a subpoena directly after that conversation with counsel is a flagrant violation and can only be viewed as a deliberate attempt to intimidate the other party.

    He treated her as their counsel. He referred to her as "the attorney" in the letter accompanying the gag order and is directing the target of the investigation to be sure to send the order to her. He is acting in bad faith throughout the entire communication. That should be obvious to anyone. But you're saying he's "technically" right.

    There is so much in the case to be angry about, that just isn't one of them.

    Intimidation isn't one of them?

  29. Kilroy says

    You could read it that way. From the exert of the letter in the post, looks like he doesn't even remember who the attorney was. Which is part of the problem going off only a phone call. Talking to an attorney about a case without an appearance or letter is a mistake that he shouldn't have made. But then again, not actually an open case.

  30. SloopyinTEXAS says

    He doesn't take notes that include name and contact information but he takes good enough notes to specifically reference what they discussed?

    And he STILL said reason should be sure to get "the attorney", using the same reference he chose earlier in the letter (not "your attorney") the gag order.

    Pull the other one.

  31. Garrett says

    I'm thinking that at this point somebody needs to feed both the prosecutor and judge into a wood chipper. Possibly with their families, pour encourager les autres. Somebody, who's not me, for I am a coward and monumentally lazy.

    Not sure if trying to make a point, or just a douche. –Ken

  32. SloopyinTEXAS says

    From the reason article (emphasis mine):

    The gag order was accompanied by this email:

    Mr. Alissi,

    Regarding this subpoena, I spoke to someone who said she was an attorney representing Reason in connection with this subpoena. The attorney indicated that Reason intended to notify the individuals referenced therein about the subpoena. The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation.

    I have obtained the attached Court Order prohibiting Reason from notifying any third party about the subpoena.

    Please forward the Order to the attorney and any other individuals who should be aware of it.

    Thank you

    Niketh V. Velamoor
    Assistant United States Attorney
    Southern District of New York
    One Saint Andrew's Plaza
    New York, NY 10007

    (Sproul had identified herself and provided contact information to him.)

    Will you also contend that since he did not place a comma after "thank you" that he was, in fact, not thanking them?

  33. Kilroy says

    Enough of the side-tracking. Prosecutor abused power of office by attempting to squelch legally protected speech. Ken correct to lampoon prosecutor for abuse of power. Ken wrong on one respect, but does not forgive the remaining of the defenseless abuse of power actions by prosecutor. Prosecutor needs a refresher on ethics for how to use power, but seems to know who to send letters to. Understood?

    and saw your last comment: still talking about a phone call. We've been over that already.

  34. SloopyinTEXAS says

    Prosecutor needs a refresher on ethics for how to use power, but seems to know who to send letters to. Understood?

    The only person in need of a course on "using power" is the guy working the throttle on the Woodchipper.
    And the course is simple: run it on high.

    Lastly, I will merely say if the phone call was of no consequence, he should have made no direct reference to it and not identified "the attorney" when he was saying who to send the order to.

  35. Eric Rasmusen says

    The gag order says "will result in one or more of the following consequences…" and then gives a list. That alone should disqualify it from being enforceable. The whole idea of requiring a judge to write more than "Yes, I authorize the gag order" is that the judge is supposed to give reasons for his decision. Otherwise, you can't appeal it to a higher court. It's both lazy and unethical to give a list of possible reasons without saying which one applies in the particular case. Otherwise, instead of writing "Upon the application of the United States pursuant to 18 U.S.c. § 2705(b)…" the judges would just write "Upon the application of the United States pursuant to some rule or other of the U.S. Code…" Impeach, reprimand, or whatever can be done— reprimand by the judiciary, impeachment by Congress if the judiciary doesn't police itself.

  36. SloopyinTEXAS says

    " Impeach, reprimand, or whatever can be done— reprimand by the judiciary, impeachment by Congress if the judiciary doesn't police itself.

    Wouldn't a "refresher on ethics" be enough?

  37. Todd "Chip" Lumbergakk says

    The challenge is to use Reason's fifteen days of enforced silence as a catalyst, not a deterrent.

    Thus far, it has proven to be neither.

  38. Chris Bray says

    It seems like it's possible to punish Assistant U.S. Attorney Niketh Velamoor by speaking about his actions. Five years from now, when his ticket is punched and he tries to cash it in with a BigLaw job, he'll be known as a douchenozzle and a blustering child. Could this sort of public idiocy damage his career, in the long term? For an obnoxious climber-weasel of this variety, that seems like the worst sort of punishment. Which suggests a general type of restraint on prosecutorial misconduct, in the absence of formal ones. Social shunning and career limitations. It's all I can think of, anyway.

    I explicitly state for the record that I do not wish or intend to place Assistant U.S. Attorney Niketh Velamoor in a woodchipper.

  39. DataShade says

    personally, instead of "Law Enforcement Is Better Than You: The Same Rules Don't Apply To Cops And Their Lawyers — Thug Life!" I prefer a callback to Blade Runner:

  40. OrderoftheQuaff says

    Why did Sproul call Velamoor BEFORE she/Reason informed the six commenters of the subpoena? Never give a petty tyrant a second bite at an apple; he had earlier acknowledged that no gag order was in place at the time. If she put professional courtesy over the safety and welfare of the commenters, she ought to be spanked (not an actual spanking threat).

    It doesn't sound like the Reason intern had ever gone to law school. As most of you know, there's something called contempt of court, but there's no such thing as contempt of elevator, parking lot or telephone, even if it's a judge on the line. The order has to be served to be effective. Otherwise, I could amuse myself by phoning random interns across America and ordering them to give me 100 pushups. They don't know if I'm real or not, better to be safe than sorry.

    U.S. Attorney's offices should have clear, written, published policies on when they recognize representation by counsel. Is an appearance or letter required, or is a phone call enough? Absent such policies, they can play it either way as their advantage appears to them. This was actually the least troubling aspect of Velamoor's conduct.

    Is Velamoor actually requesting that search engines take down links to this story, as one commenter above suggested? Good luck with that.

    Reason and maybe Popehat too should consider going to a zero-knowledge basis, where all information about the origin of a comment is deleted a reasonable time after the comment is posted. As the distinguished legal commentator Bobbie Gentry observed, "When you ain't got nuthin', you got nuthin' to lose."

  41. En Passant says

    Chris Bray June 22, 2015 at 10:44 am:

    Five years from now, when his ticket is punched and he tries to cash it in with a BigLaw job, he'll be known as a douchenozzle and a blustering child.

    The most minor google-fu reveals that he already held BigLaw jobs before being hired by DOJ.

    Some gleanings: He joined Friedman Kaplan Seiler and Adelman after a stint with Paul, Weiss, Rifkind, Wharton & Garrison, LLP. He clerked for The Hon. Stephen C. Robinson of the U.S. District Court for the Southern District of New York.

  42. Chris Bray says

    I did The Google, and I saw that, but the future and the past are different. The fact that he was there in the past doesn't have to do with the fact of his eventual return, and my question is whether not he may suffer career-limiting damage to his reputation as a result of these events.

  43. Todd "Chip" Lumbergakk says

    Social shunning…

    …works only in the fake world (and revenge fantasies) of social media's play-actors. In the real world, will any of Velamoor's social and professional peers "shun" him when, in the minds of Reason-libertarians, they're all just government stooges and co-conspirators working tirelessly to imprison every libertarian in America?

  44. Johan Amadeus Metesky says

    Someone should rent a wood chipper and tow it around the Dept of Justice headquarters in DC. Put big photos of Preet Bharara and Niketh Velamoor on the side of the truck towing it.

    Is it a federal crime to woodchip in effigy a U.S. Attorney?

  45. Steve says

    OK, what if it wasn't only an act of intimidation. Did he share the actual identities of the blogger with the IRS or ATF. Should bloggers be expecting audits and dawn raids? Its probably not safe to assume intimidation was the only purpose of the subpoena.

  46. Deserttrek says

    the courts like ALL other institutions are not to be trusted and in fact to be doubted and treated with scorn and derision .. the true criminals are no on the streets, they are wearing ties and dresses and plotting against the People.

  47. hamilton says

    Just echoing thanks, Ken, as another H&R commenter (and occasional Popehat one). We might have to like you as much as Clark now :-)

    Seriously, you're amazing.

  48. Dan Weber says

    The gag order says "will result in one or more of the following consequences…" and then gives a list. That alone should disqualify it from being enforceable. The whole idea of requiring a judge to write more than "Yes, I authorize the gag order" is that the judge is supposed to give reasons for his decision

    Yes, that pissed me off. It's making the thing as broad as possible, by putting what should be work on the proscutor's part and pushing it off into the other party, who now amazingly has to disprove five separate clauses because they have no idea what's actually at issue.

    It reminds me of petty internet forum moderators, it does. Someone with a tiny bit of power and afraid of being questioned on it.

  49. David C says

    Should bloggers be expecting audits and dawn raids?

    Given that the case already has national attention, and given that everyone knows that the people in question were already notified of the investigation, I very much doubt a dawn raid is coming. If the commenters wanted to destroy evidence (which would be incredibly stupid of them, because then they'd actually be guilty of something) they'd have done so by now. And it's not like the police serving the warrant can legitimately say they are afraid the person owns a woodchipper and might use it if they knock.

    Plus a raid needs a warrant, which requires a little more evidence of wrongdoing than a subpoena. (But if the judges are just going to be a rubber stamp, that's not much comfort.)

  50. Bob says

    "The notion that he might launch investigations and prosecutions out of stupidity was, Gillespie said, more frightening than the prospect that he was some sort of Machiavellian genius."

    Reminds me of Doctorow's Loon Lake: “ 'He's pretty stupid,' the police chief says to the cop, 'if he thinks we have to be smart.' " Power beats smart. Brutal power crushes it.

  51. says

    Great post and great work on this issue. Just want to qualify one point you make. You write:

    Judge Frank Maas, by the way, is a colleague of Judge Forrest, the target of the questioned language and the subject of the subpoena. They work in the same courthouse.

    This is correct but there is more. Magistrate judges don't just work with district judges, they work for them. Magistrate judges are hired, for a term of years, upon a vote by the sitting district judges of that particular district.

  52. Milhouse says

    There's a special place in Hell reserved for Niketh Velamoor, if he should die without repenting. And it's equipped with a woodchipper.

  53. The Late P Brooks says

    The gag order business is what is most unsettling. We now have, in what was formerly the freest nation on the globe, secret police fishing expeditions which would make a banana republic dictator proud.

    The term "Cromwellian" keeps rattling around in my head.

    I kept it clean, as a gesture of respect and appreciation.

  54. Milhouse says

    Actually they won't use the woodchipper on him. He'll just be able to see it from his cell, and hear it operating from time to time, without being able to see what's being chipped. And he will not be informed of his sentence, or when it will be carried out. He'll be kept in suspense and fear, not knowing what is going to happen to him, forever.

  55. Pecker Wood says

    I think they should have ignored both court orders and gotten the whole mess in front of various appeals courts and the press and let the scheisse hit the fan.

  56. Gregory Koster says

    The man who needs to read this post is Andy McCarthy, of NATIONAL REVIEW. Especially when next he decides to warble about surveillance being monitored by the courts, and prosecutors/intelligence agencies are honorable folks, nothing to wqorry about.; And he dares to call himself a "conservative."

  57. Warrren says

    Instead of a cockpunch or goat basket I'll take something else if you're agreeable.

    Scuttlebutt around the web says that you guys are in the pony business. You breed, buy and sell ponies and have a great thundering herd of them on your Lawranch.

    So if I could just get one of those I'll be happy.

  58. Cloudbuster says

    @That Anonymous Coward
    Didn't make anyone fearful

    The hell it didn't. I'm still waiting for the other shoe to drop. I didn't post for days because I worried that anything I said could be twisted to be prejudicial. I still worry about that — it's an intimidation spiral. Is this very post something they could use against me?

    I'm told that it's very unlikely that they are tapping my phone and internet — due to the amount of paperwork, not out of any sense of proportion or justice — but how can I be sure, and how would I ever know? And if they are, when would it ever end? The FISA courts are rubberstamps. The subpoena was rubberstamped. The gag order was rubberstamped.

    For all I know, they're on a permanent fishing expedition into my life, trying to find something to justify their interest. It's the very definition of chilling.

  59. Agammamon says

    "TimL
    June 22, 2015 at 9:00 am

    Here's what bugging me… how does this turn out if someone hadn't leaked the original subpoena, pre-gag order, to Ken/Popehat.com?"

    Depends – if it was one of us (ie the people the subpoena was seeking the identity of), probably nothing. *We* weren't served with a gag order. Actually, I assume that one of the others managed to get it to KEN – I was in the process but couldn't find an email address (didn't occur to me to check the comments and see if a working link was there until right about the time he posted).

    If *Reason* did it – obstruction of justice charges (or, at least, contempt). And, of course, a legal battle to prove that they didn't leak in the first place. So the AUSA wins anyway.

  60. jill says

    To anyone who is approached by the police/FBI…

    An law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police…

    https://www.youtube.com/watch?v=6wXkI4t7nuc

    DON'T TALK TO THE POLICE. GET A LAWYER>

    Thomas Drake, former NSA whistleblower, stated that speaking to the FBI was his greatest mistake. The FBI lied and the US Attorney attempted to incarcerate him for life.

    http://www.c-span.org/video/?311537-1/nsa-whistleblower-discusses-intelligence-community

  61. Whahappan? says

    I think Anonymous Coward meant the supposed "threats" in the comments didn't actually make anyone in the Southern District of New York office fearful. They were mad they were being criticized and made a conscious decision to abuse their power to go after the posters who had the temerity to express their displeasure.

  62. Francisco d'Anconia says

    The commenters targeted in the subpoena are probably worried about a knock on the door. That knock may come. I don't think it will be accompanied by an arrest warrant, but it will be accompanied by petty thuggery and the threat of power, banal or not. Commenters: shut up. Ask to talk to a lawyer.

    And drop me a line: there are many defense attorneys outraged by this, and we'll find you counsel, pro bono if needed.

    Ken, you are a good man.

  63. Cloudbuster says

    @Whahappen: I think Anonymous Coward meant the supposed "threats" in the comments didn't actually make anyone in the Southern District of New York office fearful.

    Yes, I see that now.

    I was actually responding in concurrence with Harry:

    If you're not a little frightened when faced with federal prosecution, especially for acts as subversive as complaining about the government, perhaps you're not sufficiently compos mentis to be entrusted with barrels of ink or buckets of bits.

    and didn't read the original very closely.

  64. George Orwell says

    Beautifully written, Ken. I think that we can sum up this whole incident (including the Ross Ulbricht case) by saying that the Department of (In)Justice is populated by "entitled, arrogant little douchesquirts" who routinely exhibit "petty thuggery, threat of power, malice, bias, indifference, and/or sheer incompetence" and seem to be accountable to no one—especially the citizens and tax payers who provide their salaries. Bureaucracy and cronyism run amok.

  65. Babylonandon says

    Just EXACTLY like the John Doe assault that was made on Conservative groups in Wisconsin (going into the 2012 election and beyond) to silence the political opposition. No real case for ANY criminal activity by anyone … the only conviction was of an aid that posted emails defending Walker during the ACT 10 battles during working hours – which was something literally thousands of Dem union members, officials, and teachers did during the same period … none of which was even investigated for it …

    … BUT SWAT teams conducted sunrise raids on the homes of Conservative activist's and served them gag orders to prevent them from even speaking to anyone about the trashing of those homes, confiscation of property (computers, bank records, cell-phones, office equipment, etc) and the gun-point confrontations people in their pajamas (and less) found themselves treated to all purely as an act of political intimidation.

  66. denizen of peanut gallery says

    Ha ha, this is funny. Watching all them internet bigmouths squirm and quail in fear is the best entertainment I've had in a long time. Hope one or two of them also get beaten over the head with a standard-issue NYPD nightstick for good measure.

  67. Cloudbuster says

    Right back atcha, denizen.

    Beaten over the head? Hey … I feel threatened…. (that's sarcasm).

  68. Frank says

    Ken:

    Would it be a good idea for the Woodchipper 6 to get representation now or wait until Fan Belt Inspectors knock?

    I know the on-site response is to refuse to talk to them and invite them to leave, but what if they decide to keep knocking for a few hours?

  69. Agammamon says

    "Frank
    June 22, 2015 at 3:39 pm

    I know the on-site response is to refuse to talk to them and invite them to leave, but what if they decide to keep knocking for a few hours?"

    Personally, that's when I call the local PD.

    Sure, they could probably get away unscathed, but its still embarrassing for an FBI agent to be the subject of a police report.

  70. Mark Matis says

    Do you know where the Only Ones live in your AO? Have you made plans to deal with them appropriately, using their very own Rules of Engagement?

    And Agammamon, surely you realize that the local PD is sitting elbow-to-elbow with their FedPig Brothers in Blue at the DHS Fusion Centers across this country, sucking donuts, swilling coffee, and filling out files on every local gun-hugging Bible-thumping veteran who believes in the Constitution, for after all those are the true terrorists in this country. What makes you think the local pigs would even bother to generate a police report? Unless, of course, it was against the caller for harassing Lawful Authority???

  71. nk says

    I very much doubt that FBI agents knocking on doors will be the very first thing after the IP addresses have been received. Next will be subpoenas to the ISPs for the upload and download history, emails and stored passwords, I would think.

  72. wolfefan says

    All I can do to add to the above kudos is thank Ken for the Gang of Four reference. I loved that EP – "Not Great Men" is still a fave.

  73. NickM says

    Ha ha, this is funny. Watching all them internet bigmouths squirm and quail in fear is the best entertainment I've had in a long time. Hope one or two of them also get beaten over the head with a standard-issue NYPD nightstick for good measure.

    Well, it looks like Ken has readers in the SDNY US Attorney's office.

  74. That Anonymous Coward says

    @Whahappan? Thank you for clearing that up before I was able to get back here. I was referring to the Judge being scared about random words on a website. I've been called all sorts of wonderful things and threatened online… still not scared and I don't have a Federal Agency charged with my protection on my side.

    @Harry I would be the last person to suggest the commenters shouldn't be afraid. While I haven;t faced the exact same position, my antics have been featured in filings in several districts. My pursuers are copyright trolls who want to use the Fed Courts to stop me… not an out of control cog in Justice (who doesn't know what that word means it seems). I have seen multiple times what the system can do to people to make a point of you shouldn't say bad things about your "betters".

    I apologize for not making my point more clear.

  75. sinij says

    I am disappointed that nobody going to ended up in the PMITA Penitentiary over this blatant violation of rights. These judges and prosecutor are thugs that belong in jail.

  76. PJ says

    "Velamoor delivered the subpoena by calling the Washington D.C. office of Reason, barking at a God-damned intern (bless the poor intern's heart), and demanding know where he could send a federal grand jury subpoena."

    Why wasn't the answer, "Up your ass"?

    You know, Ken, it's interesting to see you go over this exercise in paper shuffling, but a lot of people are beyond being bothered by such silliness. Some wank comes to my door, I won't bother calling a lawyer. I will deal with him myself. That's what old age does for you; you end up not giving a shit any more. This country is much farther along that path than you think.

    "For all I know, they're on a permanent fishing expedition into my life, trying to find something to justify their interest. It's the very definition of chilling."

    Geez dude, grow a pair. If you aren't on a bunch of government lists by now, you haven't lived a life. It doesn't take an army of cops to make tyranny; it takes a population of obedient peons, ready and willing to grovel and submit to every petty dictate without question.

    "No people ever yet groaned under the heavy yoke of slavery, but when they deserv'd it." — Sam Adams

  77. bflat879 says

    Welcome to Obama's America. This is his administration doing this. The same administration that refuses to work with Congress, the same administration that had the IRS going after political opponents, the same administration whose first goal seems to be dividing the country. The constitution means nothing right now and I doubt it will until January 2017.

  78. Cloudbuster says

    @PJ Geez dude, grow a pair.

    Show me how it's done, you manly, brass-balled stud.

  79. says

    I am concerned about this situation not just chilling reason but everyone. The quest to know the I'd of the speaker to decide if they are a 'true threat' ….when the usg already considers some populations true threats by their service in the dod. If it is some old granny who said the wood chipper thing it's not a threat but if it's a 30 yo iraqi vet it is a threat? And where is the limit % I watched a fbi person on c span at a hearing say so n sos should be taken behind the woodshed and be shot. And the fbi can. But they don't. I watched a pundit on fox say 'heads should' roll…but that never happened. And if all the 'shoulds' do this and that were statistically analyzed by say google…..how many ever actually pan out? Either the nsa thwarts them all or ppl just blow off colorful steam. This precog business is hopelessly ridiculous. Then again they could just tracked woodchipper sales like they have been pressure cooker sales since 2009. Which didn't stop the pressure cooker ppl. Btw I might be buying a wood chipper cuz a tree fell on my house….i can make a small fortune selling peacan chips for bbq ing…..but it's not like I have anything to hide should I become a grand jury target….except that like every other american I probably unwittingly commit on average 3 felonies.a day. There are over 4500 federal ones plus all the regulatory and state ones. No one can know or comply with so much….but if what they say can be twisted….they become a target for the book thrown at them…indeed some recent grad went to his school counselor and said ' I want to handle this peacefully'….govt paranoid interpretation…..a 'threat'…free speech is over .

  80. nk says

    except that like every other american I probably unwittingly commit on average 3 felonies.a day.

    Only at Reason and Instapundit. Those places are just seething with crime. You're pretty well within the law just about everywhere else, if you don't go out of your way to break it, I'm pretty sure.

  81. David C says

    And the fbi can. But they don't. I watched a pundit on fox say 'heads should' roll…but that never happened.

    A subpoena seeking an identity wouldn't make sense in that case, since the person was speaking openly. But beyond that: how do you know the FBI didn't investigate this? How do you know Fox wasn't ordered to give all records regarding this pundit, with a gag order saying they couldn't speak about it?

    Heck, we still wouldn't know about the Reason subpoena and gag order if it hadn't leaked before the gag order was in place.

  82. Mikee says

    I was enraged reading the article, until I get to the very end and read the word 'cockpunch.' Now I can't stop laughing.

    https://youtu.be/mMByDfFMPcE

    I'm sure I'll be angry again when the tears die down, but well done on the whole piece, Ken. Nice writeup with the perfect ending.

  83. bji says

    Do you really think when they come knocking they will be allowed to talk to a lawyer? It seems like rule of law has completely broken down in the US. It is a stick for those in power to hit other people with; it does not seem to keep the system in check as even you acknowledge nothing will come of this naked overreach.

  84. One Objection says

    I totally disagree with Nick Gillespie on this not being a non-partisan outing unrelated to Mssr. Obama.

    I'm sorry, did Gillespie miss the fact that all these wretched prosecutors who make it their business to engage in political prosecution, lie through their fucking teeth, run guns to Mexico, and prosecute the press/ whistleblowers are Obama appointees with Obama 'values'?

    This was explicitly a partisan outing, and if Reason really thinks that its commenters rather than IT were the target, they're some seriously innocent babes who haven't paid attention to the lengths THIS administration will go and has gone to destroy the rule of law.

    It is unprecedented.

    Behold the stench: Holder; James Cole; Ronald Machen (James Rosen & AP); Carmen Ortiz (murdered Aaron Schwartz); Preet Bhahaha (currently a defendant in a meritorious 1983); Zachary Fardon (Hastert prosecution).

    No, it's not all US Attorneys, and it's not all prosecutors. You find me the Republican equivalent of the Wisconsin John Doe investigations; the Ted Stevens prosecution.

    It's a Democrat thing, and in this case it's Obama appointees carrying out Obama culture.

    Get rid of Obummer; get rid of every US Attorney he put in place, and things will improve more than marginally. This Administration is hands-downs corrupt.

  85. Czernobog says

    @J

    I think some old granny with a wood chipper would be even more of a threat, since I have it on good authority that growing old causes you to end up not giving a shit any more.

  86. Frank says

    "Geez dude, grow a pair. If you aren't on a bunch of government lists by now, you haven't lived a life."
    ^L
    If you're not on a bunch of government lists, you're not trying hard enough. Hell, I managed to get on the No Fly List for a Harry Potter book review that pissed someone off.

  87. Mark Matis says

    I hate to break this to you, One Objection, but Lon Horiuchi was a Shrub I product. And not one DoJ attorney in his adminstration could be bothered to prosecute, nor to even let Idaho prosecute. The two parties are nothing more than opposite ends of the same steaming turd.

  88. Kenpachi says

    So… from the standpoint of gov. officials the takeaway is: secure the gag order first, then issue the GJ subpoena. And no one would've known until way after the facts. That's what they will do always from now on. They must think that they made just "one little bureaucratic mistake", but won't let that happen again. (sic)

    Am I missing something?

    Maybe it's time to start considering safe guards for journalists and bloggers in general: it's no panacea but maybe incorporating a warrant canary and/or some other measures?

    An important lesson would be to understand that in times like these, if you are not proactive, you've put yourself on the loosing side of things.

    https://firstlook.org/theintercept/2015/05/27/first-look-media-publishes-warrant-canary-releases-autocanary/

    https://firstlook.org/theintercept/2015/05/27/first-look-publishes-code-redact-documents-create-warrant-canaries/

    Any thoughts on this?

  89. Ken Shultz says

    I'm a fan of Evgeny Morozov's The Net Delusion: The Dark Side of Internet Freedom or, at least, the basic premise behind it.

    The reason the government hasn't monitored our conversations as much in the past isn't because of the goodness in their hearts. It was because it was technologically impossible for them to do so, and we didn't have our conversations online, before, where they're so easy to monitor. As soon as it became technologically possible for them to monitor us, that's what the government started to do. If it hadn't been for terrorism, they'd have used some other excuse.

    Technological limitations aren't the only thing that limits the government from monitoring what we say to each other. Unfortunately, the law and the Constitution don't seem to be much of a limitation either. The biggest limitation on the government's willingness to violate our rights is what the American people will accept. Thank God for people like Mr. White calling this stuff out. Even in authoritarian dictatorships, the government officials who violate people's rights hate being called out by name. I've read that even in China, where the communications of dissidents are closely monitored, the authorities who monitor and intimidate dissidents for what they say are not immune to shame.

    If neither the law nor the bar will help us with unethical misconduct by prosecutors, then I guess there's always public humiliation. Assistant U.S. Attorney Niketh Velamoor–I hope his becomes a household name like John Yoo. Only John Yoo was disgraced for trying to legitimize torturing terrorists. Assistant U.S. Attorney Niketh Velamoor tried to intimidate everyday Americans for exercising their First Amendment rights. I wouldn't invite somebody like that to my house.

  90. Todd "Chip" Lumbergakk says

    Things are finally settling down over at Reason, where the valiantly stupid blowhards are back to defending the noble Confederate flag from the evil "Proggies," who would trample what's left of the Lost Cause which, incidentally, had nothing to do with slavery or racism or any of those other malicious Proggie fantasies. Southern man don't need them 'round, anyhow.

  91. Dan Weber says

    "Warrant canaries" are silly. For people who imagine they are Captain Kirk and can talk the computer to death by pointing out an internal inconsistency, though, they are Deep Lawyer Magick.

    Moreover, they are irresponsible, because you are encouraging people to think there is some magic legal shield that doesn't actually exist. If you won't follow through on your plan to drop the warrant canary when the lawyer you finally hire says "no, you've been ordered not to reveal facts, and that means you need to not reveal facts," then don't publish the canary in the first place.

    But there seems to be this idea that if you give bad advice to enough other people it somehow becomes good advice.

  92. Cloudbuster says

    @Todd "Chip" Lumbergakk

    Things are finally settling down over at Reason, where the valiantly stupid blowhards are back to defending the noble Confederate flag from the evil "Proggies," who would trample what's left of the Lost Cause which, incidentally, had nothing to do with slavery or racism or any of those other malicious Proggie fantasies. Southern man don't need them 'round, anyhow.

    Instead of wildly mischaracterizing the article, to the point of inventing things that neither the article nor the vast majority of commenters are saying (skimmed through many pages of comments, but there's already 240 comments and I'm not going to scour every one of them), it would be interesting if you engaged with the arguments the article is actually making and explained why they are wrong.

  93. Dan Weber says

    Those commenters are crazy and proud of it. And good for them because I wouldn't have it any other way.

  94. Loren says

    @Mark Mattis in 1992, when Lon Horuchi killed Vicki Weaver, George Herbert Walker Bush was President, not George W. Bush (aka shrub). So at least get the correct administration. And it was shameful what happened.

  95. Mikee says

    @Todd "Chip" Lumbergakk June 23, 2015 at 1:31 pm
    @Cloudbuster
    I report, you decide.

    So you invade the comment sections of blogs to "report" about practically unrelated topics? I don't think anyone here really cares about the opinions of Reason commenters on various topics, I think most people here simply care that Reason and their commenters be allowed to express their opinions on various topics without government interference.

    If you want to "report" your opinions, do so on your own blog. Or do you already have one that no one is reading?

  96. Trent says

    It never fails to amaze me how many people think conduct like the assbag Niketh Velamoor has engaged in here is somehow worse than has ever been seen or some sort of progression in government overreach. This type of stuff has been going on since before this country existed. These tactics and abuses of powers have been a fixed product of our judiciary since the first judge was seated and the first prosecutor hired.

    The only thing that's different is that today you get to hear about it. The internet has made it possible for citizen journalists to bring attention to issues such as these. To shine light on the ill-deeds of those with power. There is nothing special about this abuse of power other than the cold hard light of public attention was focused on it. That you didn't hear about these things when you were younger isn't because they didn't happen.

    The world isn't getting worse, by all accounts it's getting better. Crime is at all time lows (lower than the 50's when the population was 1/10th of the current), free speech is the freest it's ever been and the ability to get your speech out there for other to hear is beyond anything we could have hoped for. As a result government abuse is being exposed at rates this country has never seen before. We're all better for it.

    I'll never forget my college commencement speaker. He proclaimed the end of the world, that there would be no jobs and my generation would suffer beyond measure. That was more than 20 year ago and he was full of it, just like some of the posters in this thread.

  97. Raucous Indignation says

    You could have used the phrase "Assistant U.S. Attorney Niketh Velamoor" a few more times in the body of the post. Can't have this post not be on the first page of the Google search of Assistant U.S. Attorney Niketh Velamoor's next prospective employer.

  98. Matthew Cline says

    @Dan Weber:

    "Warrant canaries" are silly. …

     

    Moreover, they are irresponsible, because you are encouraging people to think there is some magic legal shield that doesn't actually exist. If you won't follow through on your plan to drop the warrant canary when the lawyer you finally hire says "no, you've been ordered not to reveal facts, and that means you need to not reveal facts," then don't publish the canary in the first place.

    I thought the idea behind the warrant canaries wasn't that you put up the notice once, and then take it down if you get a warrant. Rather, you update/re-issue the warrant every month/week/day, and you stop updating/re-issuing it once you get a warrant.

  99. Paige says

    Free speech lives on just a little bit longer. Ken, I hope I meet you someday. It's so rare to know everyday heroes…

  100. Melissa says

    And when this is over, Reason will sue the hell out of them, right? Right? I still can't fathom how stupid these govt stooges are. It takes a serious power trip to try and silence Reason lol.

  101. nk says

    It's not in the government's interest to silence Reason. Reason is a place where anti-government loudmouths can out themselves. Old Soviet joke:
    — When we have Utopia, will we still have the KGB?
    — No. In Utopia, people will inform on themselves.

    Oh, shoot. I shouldn't have let on that I'm on to the government's game. There I go on a list.

  102. Dan Weber says

    Rather, you update/re-issue the warrant every month/week/day, and you stop updating/re-issuing it once you get a warrant.

    Same shit, different day.

    Imagine the SEC has a case against an executive for insider trading. And the pre-arranged method was that, over a golf game, the executive would always tell his golf buddies, "yep, you should keep on owning my stock," and he would stop when it was time to sell. So one day he doesn't say anything new, and his buddies sell, and that day a major report comes out that makes his stock price plunge.

    And the executive says "your honor, I didn't say anything about my stock!!!111one"

    This is easily recognized as nonsense. When you are ordered not to communicate certain information, that means you don't communicate that information. Whether you were doing it by moving a plant around on your porch, or over twitter, or with l33t sp3@k, or with smoke signals, or by cutting out the inverse of those words from the newspaper and then sending that to someone else, or especially by using a pre-established signal deliberately for that purpose, you are communicating.

    If this were Star Trek, sure, Kirk would tell the computer judge, "ah, but I was not not not not communicating!" And then smoke would come out of the computer and it would release the Enterprise or whatever.

    And in the real world, such a defense might get smoke to come out of the judge's ears, but it would not be because he's about to set you free.

  103. says

    So someone's going to have to work real hard to prevent Niketh Velamoor's inevitable coronation as Censorious Asshat of 2015, right?

  104. says

    If you want to "report" your opinions, do so on your own blog. Or do you already have one that no one is reading?

    Arson isn't much fun when people can't be bothered to notice the flames.

  105. says

    There should be a special place in hell for censorious, power-abusing federal prosecutors; they should be taken outside and shot; and, what's more, placed feet first in woodchippers—necessarily in that order, since the other order would be unduly challenging.

    Also, they should get involved with protecting the people, and not lying to the people, intimidating them, etc. Speaking of wretched hives of scum and villainy!

    On a serious note (if you didn't pick up on it, thin-skinned marionette prosecutors), what is with lying about the nature of actual terrorist attacks, pretending they weren't motivated by the ideology they were motivated by? Are you just dumb or ….

    I thought you were supposed to be on the side of your people?

  106. says

    "It's not in the government's interest to silence Reason. Reason is a place where anti-government loudmouths can out themselves. Old Soviet joke:…."

    LOL nk. Exactly.

  107. Gedoff Mylon says

    YES! Grabbed the name LibertarianWoodchipperOfDoom for a Gmail address! Fist pump. That would also make an very good band name.

    This article is the very definition of owning someone. Excellent job!

  108. says

    @Chris:

    Because Elonis is a case about the elements of 18 USC 875(c), and there's no mechanism to limit grand jury subpoenas to those cases in which the alleged threats meet the elements, as demonstrated by the DC case quoted in my first post in this series.

  109. says

    "Hear, hear!" to everything Ken Shultz said.

    Also, I'll be damned if I didn't put hell in the wrong order as, one would think, it comes right in at the end.

  110. Richard Smart says

    Mr Weber,
    While you are correct that 'canary' is a form of communication by omission, and that a judge would be upset about it, they are still useful and safe provided some basic rules are followed.

    Rule one is to be rich enough to hire an army of lawyers. "Reason" is not.
    Rule two is to obfuscate responsibility for issuing the canary.
    Rule three is to obfuscate the canary itself. Verbum sapienti sufficit.
    Rule four is to arrange matters in such a way that one is shielded from contempt accusations by having the canary be part of some duty owed to the public.

    Those last two may need some elaboration:

    A suitably elliptical reference is merely a hint, not a shout-out. In many cases people don't need to be certain of the canary; they merely need to suspect it. While there is no specific standard of proof requirement for a contempt judgement – the court is exercising a so-called "inherent jurisdiction" – such judgements are reversible on appeal (to a superior court).

    Matters become especially interesting where the canary forms part of regulatory reporting requirements or a public guarantee of privacy (a "warrant canary"). A financial report to the SEC for example may habitually assure that the financial impact of certain classes of legal action is zero. Where that assurance is suddenly absent, analysts notice.

    A good example of all four rules in action is the 'warrant canary' issued by Apple on Guy Fawke's day 2013. It was suddenly absent in late 2014, signalling – without certainty – that section 215 data grab gag orders had arrived.

    On the whole, people took the hint. It would have been a very brave prosecutor or judge who penalized Apple for that.

  111. Kram Divad says

    Sad to say, but you're a liberal, Ken, which means you, yourself, believing in disobeying the Constitution wholesale. While it is outrageous that our government is abusing the people, it seems vastly hypocritical of you to object, when you freely and enthusiastically approve of ignoring the enumerated powers and 10th Amendment.

  112. Matthew Cline says

    @Kram Divad:

    Where/how does Ken "reely and enthusiastically approve of ignoring the enumerated powers and 10th Amendment"?

  113. En Passant says

    Matthew Cline June 25, 2015 at 5:09 pm:

    Where/how does Ken "reely and enthusiastically approve of ignoring the enumerated powers and 10th Amendment"?

    Isn't that the section that begins:

    The Congress shall have power

    To lay and collect Taxes, Duties, Ponies and Excises, to pay the Debts and provide for the common defence and general Welfare of Ponies; but all Duties, Ponies and Excises shall be uniform throughout the United States; …

    ???

  114. Richard Smart says

    The En passant move: "Isn't that the section that begins…"
    – macerates the text but recalls the first enumerated power in Article 1 section 8.

    That is indeed the list of such powers reserved to congress (and therefore the federal government).

    But it is not the complete exhaustive list; there exist implied powers deriving from those expressly granted. And the tenth amendment does not prevent this. It was ratified in 1791. SCOTUS ruled in 1819 that 'necessary and proper' additional powers existed. Surely this is well-known?

    In a related context, the "All Writs" act is also constitutional and is being used in a fairly surprising manner lately – to get Apple to unlock a smartphone for example, never mind restrictions on unreasonable search and seizure.

    All this appears to be perfectly lawful.

  115. Voice_of_Reason says

    Hey, look on the bright side! At least none of the commentirs or Reason staff got shot by cops during a 0430 no-knock warrant serving because they thought the strangers busting into their home were home invaders and tried to defend themselves.

    and no one had their property siezed under civil asset forfeiture without even being charged of a crime.

    a sarcastic person might even say they got off easy!

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