Huge First Amendment Win In Federal Criminal Threats Case

[Note: frequent readers know I very rarely talk about my own current cases here, let alone my firm's cases. This blog is not affiliated with my law firm. I moderate it and write my own posts; nobody at my firm has input or approval and the firm doesn't sponsor, pay for, or otherwise support the blog. When I write here, I'm speaking for me, not for the firm where I work. Today I'm writing about one of my firm's cases because it's so central to this blog's subject.]

Today my law partner Caleb Mason scored a huge and important First Amendment win in his pro bono defense of a federal criminal threats case. You can read about it here, at my firm blog. CNN already covered the case here. In short: after a hard-fought trial a federal jury returned four not guilty verdicts and hung 8-4 for acquittal on 16 other counts in a prosecution involving our client Peter Wexler's political blog, which was rife with the sort of political hyperbole that's been common throughout American history and is now particularly common on the internet. The United States claimed that Mr. Wexler's blog posts were true threats against an FBI assistant director even though an FBI agent had already concluded that his prior almost identical posts were protected speech.

Caleb will now be asking the Court to dismiss the counts on which the jury hung. Until that's over, I won't be blogging the case in detail. But I promise it will be worth the wait. Issues to watch for: Mike Masnick of TechDirt as a kick-ass expert witness on internet culture, the post-Elonis standard for intent in criminal threats cases, whether the FBI understands memes, how many agents it takes to search a trailer home (30), and whether something called a "fat man gadget" is, in fact, a true threat.

In addition to being a kickass trial lawyer, Caleb is a very entertaining writer. People who like Popehat would like his Fourth Amendment analysis of Jay-Z's 99 Problems and the stuff he writes on our firm blog. I'm quite proud to be his partner today. He handled this pro bono, and together with attorney Marri Derby and the Federal Public Defender's office, did an excellent job. Peter Wexler — a man with no record, who volunteered at the library to teach adults to read — spent nearly a year in jail without bail because of his blog posts. As I often say here, your freedom of speech relies on lawyers like Caleb standing up.

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Comments

  1. Andrew Santos Fleischman says

    I have read and enjoyed that law review article more than once. I had no idea that guy was in your firm. I always assumed he was just a very entertaining law professor. I talk about it with all my interns. Congratulations on the win and keep at it.

  2. Matthew Cline says

    I know that "Fat Man" was the name of that historical nuclear bomb, but I just assumed that a nuclear weapon couldn't possibly have anything to do with a true threat case. Please don't tell me that a prosecutor claimed a threat to drop a nuke on someone was a true threat.

  3. Matthew Cline says

    No, wait, let me guess: the client threatened to use "Fat Man" on someone. The police who searched his home, and/or the prosecutor, didn't know that "Fat Man" refers to a nuclear bomb, thought some harmless doodad in his home was a "fat man device", and used it as evidence against him.

  4. Lawrence D'Anna says

    Wow. Does he get compensated in any way for being unconstitutionally imprisoned for a year?

  5. Sacho says

    Wow. Does he get compensated in any way for being unconstitutionally imprisoned for a year?

    Sure, he gets to not be imprisoned anymore. Maybe Wexler will learn after this time-out to not spew vile, gross and hateful rhetoric to offend and harass government workers who are just trying to do their jobs and make the world a better place.

    What, you want more? You should line up after these assholes, who feel entitled to some kind of legal restitution for becoming part of a clearly just and righteous cause to rid the world of the nastiness of drugs.

  6. Castaigne says

    I congratulate your partner on his victory for 1st Amendment principles.
    I just wish it hadn't been for Peter Wexler.
    But yes, an excellent victory.

  7. Matthew Cline says

    @Sacho:

    Maybe Wexler will learn after this time-out to not spew vile, gross and hateful rhetoric to offend and harass government workers who are just trying to do their jobs and make the world a better place.

    So you'd be okay with what the client did being illegal? Perhaps even approve of it being illegal?

  8. David Lee says

    The Daily Mail and some blogger will need help defending themselves against Melania Trump now and her 150 million dollar lawsuit. More Pro Bono work?

  9. Total says

    So you'd be okay with what the client did being illegal? Perhaps even approve of it being illegal?

    Did he say that?

  10. Doctor X says

    @Matthew Cline

    Methinks he was being sarcastic. Check the links to his blog. I, too, thought the same way and poised to pound Righteous Indignation into my keyboard.

    –J.D.

  11. Cromulent Bloviator says

    A win in the sense described in that famous book by Gerry Spence, but in common English it is a very limited win.

    Some of things quoted in the CNN article sound like true threats. However, (and in my opinion, unfortunately) he didn't make them imminent enough for violate the law. When the agents testified that they took the threats seriously, I believe them. They were true threats, and it is clear that some commenters read the term "First Amendment" and didn't both reading anything that contained quotes. And yet, if they had started giving him a lot of in-person attention, that would not be unreasonable. I would expect them to up their investigation at that point, for sure. It isn't punishable by the government if you make a threat about the non-imminent future, unless it is a certain type of terrorist threat. But he isn't credible as a threatening terrorist, because he's just an obnoxious blogger. And yet, the things he said about the Turkish Embassy were very close to that line. But the smaller threats, the threats to the agents, those were real but non-imminent threats.

    That makes this a confusing case; threats that would be illegal if they were believable, but aren't believable, and other unrelated threats that are believable and specific, but are not imminent. Nearly imminent, but not.

    However, I'm a bit of an extremist on both sides of this. I think the FBI started out doing well. They knew his speech was protected, but they did a Threat Assessment. Well, that is their job. If I said that stuff about the Turkish Embassy, I'd hope a threat assessment would be done. I don't want the idiot FBI to just profile and assess only threats from certain people, and if he had no record, well they had nothing in their system to base an assessment on. Interviewing him was the right thing to do. And given his response in person and online, I'd expect them to be unable to clear him of being a threat, and go from "probably just a political speaker" to "potentially a violent insurrectionist." Which again, is not illegal, but is legit for the FBI to have an interest in and keep a watch on, hopefully using correct paperwork. So so far I'm liking the FBI actions.

    Then, instead of continuing to investigate, they conducted a para-military assault on his RV. If it was up to me, those agents would go to prison for terrorism. I'm just not convinced that the law has a special rule for cops where they get to "defend" themselves pre-emptively just because they have an occupational aversion to potential violence. Yes, if I was them I'd be concerned that he might become violent when arrested. Sure. But that isn't the same as it having happened, and IMO they were engaging in unlawful violence, and the purpose of that violence was to stop political speech, so that becomes terrorism. In my opinion, the same laws that send environmentalists who burn buildings for their cause to prison for life, would seem to apply to things the police at various levels do every day.

    So in my Utopia, the FBI guys would be in prison, and RV schmuck would get annual checkup visits from their replacements. The prosecutor would get a reprimand for way-over-charging the case.

    It is way too early to call this a huge victory. He could still be convicted on most of the charges. When they announce they're not going to re-try on the remaining charges, that is when victory becomes huge. Right now, it a partial victory where full victory was generally expected.

  12. Matt Arnold says

    Ken ended a post with "stand up" and no one has mentioned Bob Marley yet. People your slipping. :P

  13. En Passant says

    Congratulations to Caleb Mason, Marri B. Derby, and all the defense team. Here's hoping for a judicial dismissal with prejudice on the remaining counts.

    On "fat man gadget":

    "Fat Man" was nickname for the Plutonium fission device detonated over Nagasaki, August 9, 1945.

    "Gadget" was the nickname for the Plutonium device detonated at the Trinity Test, July 16, 1945.

    "Gadget" subsequently became a generic reference to atomic bombs.

    The late British novelist Nicolas Freeling wrote a thriller novel titled "Gadget" in 1977. The plot involved a physicist kidnapped and forced to design and build a gadget. It's short, very engaging, and somewhat educational for readers who would like to learn how fission gadgets work.

  14. Bob says

    Great win for the first amendment, but I have to ask…

    Is Wexler as much of a raging douche in real life as he seems to be online?

  15. Dictatortot says

    Bob:

    Even if Wexler should conduct himself better on a one-to-one basis, I'd say the question rests on a distinction without a difference. If a man consistently behaves one way to people's faces, and another way when not so constrained, then the latter is the real man.

    Though of course, it's not illegal to be horrible, nor should it be.

  16. Regret says

    Per your firm's blog, the defendant "spent almost a year held without bail."

    Assuming the rest of the charges are dropped, does the defendant have any case to argue for compensation for the time he was imprisoned? Or is it just tough luck? In the latter case, the government kind of "wins" in that they will discourage others from doing something similar in the future.

  17. 205guy says

    I guess this is heresy around here, but I really don't know where decisions and cases like this will lead us. In the big picture, it seems like every case carves out a new exception for threatening speech, and then lawyers charge into that breach and enlarge it in the next case. It's like that previous case where as long as you have 20 (or two, one of them imagined) followers who you claim understand you, you can say anything online.

    I'm no expert (and yeah, I understand I should shut up already), but he seemed pretty threatening. In a way, since it was directed at the fbi, who could theoretically defend themselves, maybe it was not. But directed at others, it could be. Context is everything, I get it.

    But still, the level of violence in speech keeps ratcheting up. Is that what the original writers of the constitution intended? (ok, we've probably abandoned that defense a while ago). But is it necessary for our society? Can we have freedom of speech without freedom of violent speech?

    And why does your headline still call it a criminal threats case, if it was determined they were not criminal threats?

  18. Encinal says

    Any links to news sites that don't arrogantly automatically play audio?

    Also "Prosecutors dismissed the exchange as a joke intended to diffuse tension in a stressful situation."

    So they were trying to make the tension less concentrated? Spread it out over a larger area?

  19. En Passant says

    205guy says September 3, 2016 at 1:55 am:

    I'm no expert (and yeah, I understand I should shut up already), but he seemed pretty threatening. In a way, since it was directed at the fbi, who could theoretically defend themselves, maybe it was not. But directed at others, it could be. Context is everything, I get it.

    No. You don't get it.

    If you read the CNN coverage, which quotes the statements for which Wexler was charged (or if you read the indictment posted at the CNN site), you will see that the statements for which Wexler was charged:

    1. stated contingencies, along the lines of "If you hit me, I'll hit you back a thousand times as hard," or

    2. expressed opinions, along the lines of "somebody ought to kill these people." or

    3. asked questions, "is it a crime to slit their throats?" or

    4. expressed anger as hyperbole, such as "they make my trigger finger itch."

    Those are not threats. To anyone who can parse simple English grammar they don't contain the slightest suggestion of immanent harm. They do express anger and rage, but they contain no threat of immanent harm to anybody.

    But the government agents and prosecutors in this case believe that the little people should have no right to express anger so strongly and unpleasantly against government actors, even for their arrogant, outrageous or unlawful behavior.

    To illustrate the point of distinguishing a First Amendment protected opinion from an actual threat: It was a crime for Timothy McVeigh to blow up the Murrah federal building. But, no matter how distasteful or unpleasant anybody finds it, if the First Amendment has any meaning at all, calling McVeigh a hero for doing it cannot be a crime.

  20. 205guy says

    > government actors, even for their arrogant, outrageous or unlawful behavior

    The cnn article didn't have many details, but the original actions of the fbi (knocking on his door and asking questions) seemed lawful and within bounds.

    > express anger so strongly and unpleasantly

    I guess I'm saying this is blind territory here. You can express anger and violence as long as you have read up on the latest 1st Amend. jurisprudence, word your speech just right, use a lot of innuendo and rhetorics, are ready to spend 12 months in jail without bail, and have the best lawyers. If you slip up and get just one little word wrong (easy to do in the heat of a discussion), you might be fucked. All so that you can threaten the government without really threatening the government.

    Because if you look at the overall intention, it was to create a fear around the government taking actions it seemed to be doing lawfully. Yeah, I know, can't trust them to always be so nice. So imagine you were this guy's landlord trying to collect rent, or had some other civil litigation with him and sent him a process server. Would his non-threatening speech make you feel all fuzzy and warm?

  21. En Passant says

    205guy says September 3, 2016 at 4:45 pm:

    So imagine you were this guy's landlord trying to collect rent, or had some other civil litigation with him and sent him a process server. Would his non-threatening speech make you feel all fuzzy and warm?

    His speech doesn't make me feel fuzzy and warm. Calling his landlord or a process server nasty names wouldn't make me feel fuzzy and warm either. But if he's made no actual threats, he's made no actual threats.

  22. Daniel Minardi says

    Eh, I don't pity this guy for what he went through. I likely would have voted the other way if I'd been on the jury, but I don't begrudge anyone who gets a not guilty verdict. These facts made it past a motion for summary judgment, and seemingly rightfully so. Whether the threat was 100% serious or not, the intent to intimidate law enforcement seems very reasonable to infer.
    It appears that his calls for violence transitioned from distant targets toward people that he knew were reading his blog. How the FBI reacted seems minimally relevant to the question of his guilt or innocence, only lending some light to the question of how a reasonable person would view it in context.

    This is the sort of speech that law enforcement needs to respond to, whether it's made to law enforcement, to women, or anyone else. For anyone dumb enough to get that close to the line, cries of "muh first amendment!" should be ignored until a jury sorts it out.

    Hal Turner never got his hands dirty, either.

  23. Richard Smart says

    Dear Doctor X,

    Then, Cassius Dre, he should have called it "Little Boy."

    Well not quite. I'd prefer to think of it as a "Thin Man" – the device that would not work. People with half-way decent educations will recognize "Fat Man" and "Little Boy" as references to Manhattan project A-bomb prototypes (although fewer will be able to identify "Fat Man" as the Pu-239 implosion device and "Little Boy" as the gun-type U-235 device).

    "Thin Man" was initially thought of as the most promising possibility; the Uranium gun weapon would work, but mining sufficient Uranium would always be hard. Plutonium supply issues could be solved. The gun technology was known to be feasible – this was before the instabilities were suppressed in the implosion technique, courtesy Johnny von Neumann and his work on shaped charges calculations. Unfortunately, the Plutonium breeder process causes the Pu-239 isotope to be impure. Even tiny impurities of Pu-240 would have caused criticality while the "bullet" mass was still in the gun barrel, before contact with the remainder of the critical mass, resulting in a fizzer.

    Mind you, I'd regard a nuclear threat as being a true threat. It might not be very likely but it's a lot less unlikely than it used to be. Accounting errors and real smuggling mean a lot of fissile material is potentially out there – by some estimates enough for 3,000 warheads.

    Even a fizzer could potentially kill millions. On the way to critical mass a Plutonium core is exploded into tiny little shards, which is why only a very small percentage of the available mass is actually converted to energy, but those shards – even microgram dust grains – are potentially lethal. An entire city could be blanketed by a dirty bomb, and everyone who breaths in a milligram of Plutonium is a dead person walking.

  24. says

    These facts made it past a motion for summary judgment, and seemingly rightfully so

    There's no summary judgment in federal criminal law.

    In fact, once a grand jury returns an indictment, there's no way to test the adequacy of the facts prior to trial.

    Which is how someone can stay in jail 11 months.

  25. En Passant says

    Richard Smart says September 4, 2016 at 6:18 pm:

    Mind you, I'd regard a nuclear threat as being a true threat. It might not be very likely but it's a lot less unlikely than it used to be. Accounting errors and real smuggling mean a lot of fissile material is potentially out there – by some estimates enough for 3,000 warheads.

    Even if the largest statistical estimates mean that anyone can obtain sufficient fissile materials to do so, they do not mean that actually constructing a fission device could be done by any blowhard ignoramus who utters the words "thin man", "little boy" or "fat man" or "gadget" in a nasty statement.

    Most physicists, given sufficient fissile material to do so, could not readily construct a fission bomb alone. A working device would require a large (and secret) team of physicists, engineers, technicians, machinists and other skilled professionals, all with access to secret facilities to do their work, You can't just build one from a kit, in your spare bedroom with a soldering iron.

    And yes, I am aware of the accomplishments of David Hahn. He was building a breeder reactor, a different beast, not a implosion fission device.

    Unless one has a reasonable basis to believe that the person uttering those words is part of a vast (or at least half-vast) conspiracy of very skilled people with access to sufficient facilities to construct a fission device, the words alone are just bombast, loudmouth rhetoric, puffery, blowin' smoke, or talking from the wrong orifice.

  26. Daniel Minardi says

    Sorry, I was referring to the motions for judgment of acquittal. Seems it was properly before a jury, aside from any issues of the reasonableness or denial of bail.

  27. says

    It hasn't made it past a motion for judgment of acquittal, because the judge reserved ruling, as judges often do. Do you know what the standard for such motions are, and do you think that standard supports an inference that it's a case with merit?

  28. Daniel Minardi says

    I would infer that a reasonable jury could conceivably arrive at a guilty verdict based on a ruling to that effect. In the absence of such a ruling, I must base that inference, that such a motion should be denied in this case, on my limited knowledge of the facts.

    Suggesting that a reasonable jury could find guilt beyond a reasonable doubt (depending on the specific charge identifying which criminal class of unprotected speech this allegedly falls into) seems rather uncontroversial.

  29. Total says

    Most physicists, given sufficient fissile material to do so, could not readily construct a fission bomb alone. A working device would require a large (and secret) team of physicists, engineers, technicians, machinists and other skilled professionals, all with access to secret facilities to do their work,

    '

    Actually, it's almost the exact opposite of this. Making an advanced nuclear device — either an implosion device or an H-Bomb — is very hard. Making a primitive nuclear weapon — a gun type, like the one that destroyed Hiroshima — is almost comically easy once you have the properly refined uranium (yes, that's a big 'once'). Pretty much anyone with metal machining skills and an Internet connection could manage it.

  30. Dan says

    Even if the largest statistical estimates mean that anyone can obtain sufficient fissile materials to do so, they do not mean that actually constructing a fission device could be done by any blowhard ignoramus who utters the words "thin man", "little boy" or "fat man" or "gadget" in a nasty statement.

    Indeed
    .
    Also worth noting that most of that material will have come from civilian plants and will have been in the reactor for long enough for Pu240 contamination to build up to a level sufficient to cause a fizzle even in an implosion device.

    Weapons grade means ~6 months in a reactor running at a somewhat higher neutron energy level then a civil plant normally does, leave it a few years in a thermal neutron flux (normal for a civil reactor) and you can forget it.

    The physics is hard (but doable), but the engineering (and metallurgy, Pu has some really funky behavior) , not to mention trying to do precision machining on THAT metal without killing yourself, forget it.

    If the objective is terror toward a political end **any** engineer worth their salt can think of easier ways that would probably be as effective.

    Nuclear threats should be viewed like people wittering about Tesla (In any context except electric motors and possibly big sparks), as a signal that the person can probably be safely ignored.
    A Threat to shoot the senator? Possibly worth looking into, a threat to blow up Washington with a homemade nuke? Not so much.

    Regards, Dan.

  31. Norahc says

    Here's to hoping the term "Streisand Effect" makes it into a judicial ruling.

    Congratulations to your firm and everyone on the defense for the win.

  32. Richard Smart says

    Dear Dan and En Passant,
    Your fundamental point – that the man in question is a blowhard and not likely to have the capacity to carry through his threats – is well taken.
    And Dan's quite right about the level of Pu-240 being increased by prolonged treatment in a reactor. The breeder process is often short-circuited to keep that to a minimum, resulting in an exceptionally pure (>95-99%) grade of plutonium which reduces the warhead mass, making for a more easily deliverable weapon, but lower-grade levels are acceptable provided one is willing to accept a heavier device – which generally speaking a Navy or Air Force is not.

    However, it's dangerous to assume that a loner would not be able to construct a device capable of killing millions in one shocking blow (which nerve gas could not do). All I would need, personally, is money. Specifically, I would address the need to ensure the Pu is the correct allotrope either by machining it in a hot box (wearing SCUBA gear, brrr) or alloying it with a bit of aluminium dust (gallium is too hard to get hold of inconspicuously). The likelihood of a fizzer could be minimised by having a double-skinned hohlraum filled with water (a neutron reflector), but the bloody thing would weigh thirty tonne and I'd have to hire an eighteen-wheeler to carry it to the target. Besides, since my lathe and milling skills are thirty years out of date, I'd also want a couple of months to get familiar with the equipment, but that would cause the Po-210 I'd want for an initiator to degrade (half life of maybe 150d). Absent the Polonium, I'd have to get creative with beryllium (brrrr) and smoke detectors etc., but it's feasible.

    This sort of thing was a popular topic of conversation at engineering school decades ago when US nuclear ships being banned from our harbours was in the news. The consensus was that the hard part would be the calculations to establish the correct shaped-charge configuration, but this was TAM and we were confident we could do it as a team. We decided in the end that it was do-able if we had something better than the PDP-10 with FORTRAN.

    PS En Passant: I think you meant "imminent" rather than "immanent" which means something other than 'immediate'.

  33. En Passant says

    Total says September 5, 2016 at 1:30 pm:

    Actually, it's almost the exact opposite of this. Making an advanced nuclear device — either an implosion device or an H-Bomb — is very hard. Making a primitive nuclear weapon — a gun type, like the one that destroyed Hiroshima — is almost comically easy once you have the properly refined uranium (yes, that's a big 'once'). Pretty much anyone with metal machining skills and an Internet connection could manage it.

    I wouldn't want to be anywhere near anybody attempting the "comically easy" machining and placement of the U-235 hollow cylinder projectile (actually a stack of rings) or the target.

    The hollow cylinder must necessarily be more than one critical mass. Only its geometry and the absence of reflecting tamper keeps neutron flux low enough to prevent premature fission.

    I don't think kids should try this at home in Dad's machine shop.

    Of course, building a "dirty bomb" is trivial if you have large amounts of even non-fissile radioactive material. Just use a conventional explosive to scatter large quantities over a large area. But that is not a fission bomb.

  34. AlanF says

    En Passant,

    I wouldn't want to be anywhere near anybody attempting the "comically easy" machining and placement of the U-235 hollow cylinder projectile (actually a stack of rings) or the target.

    It is nice to see someone get this detail right. You must have John Coster-Mullen's book. No other book I know of did so.

  35. Richard Smart says

    Dear En Passant and AlanF,
    Regrettably, Total is quite right. There is more than one way to flay Schrodinger's cat, and the "hollow-ring" concept for a gun-weapon criticality bullet isn't the only option; bear in mind that the original Little Boy didn't actually need an initiator (although one was provided for peace of Oppy's mind).

    I'd adapt the concept of a discarding-sabot conical round closely fitting a static pit electroplated with polonium, then nickel, then gold. Except the sabots wouldn't discard, but by the time they hit the critical assembly that wouldn't matter.

    You would need a muzzle velocity higher than the 3,000 feet per second of grand-dad's old anti-dacoit gun (Savage model 99) but I'm sure the tech has advanced in the century since that was made.

    In my opinion, which admittedly is not so humble, Dad's machine tools in the basement is actually a rather good option – provided the father in question is an electrical engineer who served a marine diesel apprenticeship and is fascinated with model-building. Such fathers are less uncommon in America than the current de-industrialisation of your nation might indicate.

    However, the gun-weapon wasn't the threat made. Fat Man was an implosion device, so this is – as Ken White might say – moot.

  36. Total says

    I wouldn't want to be anywhere near anybody attempting the "comically easy" machining and placement of the U-235 hollow cylinder projectile (actually a stack of rings) or the target.

    As Richard Smart has pointed out, if that were the only solution, you might be right. But probably not:

    The hollow cylinder must necessarily be more than one critical mass

    Er…I'm not sure what you mean here, as both chunks of the Hiroshima bomb were about 2/3rds critical mass. So, no.

  37. Total says

    Er…I'm not sure what you mean here, as both chunks of the Hiroshima bomb were about 2/3rds critical mass. So, no.

    Though interestingly (he says, following up) the part that was "fired" was larger than the receiving, for a variety of reasons. But both still subcritical on their own.

  38. En Passant says

    Total says September 5, 2016 at 6:00 pm:

    As Richard Smart has pointed out, if that were the only solution, you might be right. But probably not

    But that is how the "little boy" device was made.

    Er…I'm not sure what you mean here, as both chunks of the Hiroshima bomb were about 2/3rds critical mass. So, no.

    That the two masses were about equal may not be correct. Certainly the Wikipedia entry for "little boy" (citing John Coster-Mullen's 2012 book on the subject) indicates that the hollow cylinder had greater than one critical mass, but its geometry prevented fission.

    If the finding of a truck driver turned atomic weapons history geek cited by Wikipedia is not persuasive, there is also a suggestive quote from William L. Laurence, the official historian of the Manhattan Project, here:

    http://blog.nuclearsecrecy.com/2011/11/08/the-mysterious-design-of-little-boy/

    Laurence stated:

    [The bomb] contained the largest amount of uranium 235 assembled and concentrated up until that time. In fact, it contained as much as 66 kilograms of uranium 235, an enormous amount. … It was oblong, cylindrical, and inside the quantity of uranium 235 in it was divided into two parts. The largest part was on one end attached to a gun mechanism, and the other part was on the other end.

  39. Richard Smart says

    Dear En Passant,
    You and (historian) Wellerstein are quite right about Laurence's comment on Little Boy as it was dropped, although both were lamentably untechnical people, at least by Feynman's standards. But may I direct your attention to the first comment at the end by the estimable Carey Sublette?

    In essence, the first prototypes for Little Boy were discarding-sabot in form. Furthermore, the design used remained a fearful waste of U-235 merely because no-one could be bothered making it better; it was already clear by 1944 that implosion was the way of the future (or to damnation, take your pick).

    Luckily, Uranium remains a much less widely available fissile material than Plutonium – so even though a gun weapon would be comparatively easy to fabricate, that doesn't matter.

    In passing, can I add that despite North Korea trying for decades, till very recently they were unable to do more than an implosion fizzer? This however says more about their society than about an American terrorist. The funny thing about democracies is that they throw up these enormously capable individuals. However, their women would kick them in the butt if they actually tried to do any of this nonsense, and generally they love and cherish their families.

    Along with those of their enemies.

  40. Richard Smart says

    PS When I last looked at this in detail four decades ago I remember thinking that the bullet was probably formed into rings to permit threading down the "barrel" by a rod which would touch a static fissile component of the same diameter, at the far end.

    I don't remember which of my lecturers told me of the bullet rings but clearly the construction wasn't all that classified by that point. No-one cared: the design wasn't technically "sweet", the kind of thing that makes boys of a certain cast of mind (and even a few girls) go Oooh.

  41. Total says

    But that is how the "little boy" device was made

    Sure. That doesn’t mean it was the only solution.

    That the two masses were about equal may not be correct

    Ergo, my second post.

    Certainly the Wikipedia entry for "little boy" (citing John Coster-Mullen's 2012 book on the subject) indicates that the hollow cylinder had greater than one critical mass, but its geometry prevented fission.

    The problem is that critical mass (according to Feynman’s calculations) is about 110 pounds (50 kg), and as the later source you print points out, the mass of Uranium in Little Boy was 145 lbs (66 kg). For one of the parts to be more than one critical mass, it would have to be over 50 kg (and the other 16 kg). Nothing I’ve seen indicates that disparity in the sizes.

    (Fascinating how much this stuff is still up in air after more than a half century).

    But, in any case, to go back to my original point — the Little Boy bomb was not the only way to build a gun type a-bomb. There are much simpler ways, ones that quite a lot of people could handle.

  42. En Passant says

    Total says September 6, 2016 at 6:52 am:

    But, in any case, to go back to my original point — the Little Boy bomb was not the only way to build a gun type a-bomb. There are much simpler ways, ones that quite a lot of people could handle.

    I don't doubt that there are simpler ways than the actual "little boy gadget".

    I've known quite a few fine physicists, engineers and other scientific and technical professionals in my life. I do doubt that any one of them, working alone with merely a sufficient stock of U-235 (without assistance of others such as metallurgists, machinists, electronics technicians and the like, and without some excellent lab and shop facilities) could design and manufacture a working "little boy gadget" in any reasonable time frame. Of course, even a moron in a hurry could make a fizzle.

    In the case under discussion here, defendant is accused (among other things) of threatening "to shove my fat man gadget up [somebody's] ass". All here agree that a fat man gadget is far more difficult to make. As Richard Smart noted above, it took no less than John von Neumann to resolve and eliminate the instabilities in the "fat man" implosion pressure wave.

    So, I don't think defendant's statement is a credible threat.

  43. Total says

    I've known quite a few fine physicists, engineers and other scientific and technical professionals in my life. I do doubt that any one of them, working alone with merely a sufficient stock of U-235 (without assistance of others such as metallurgists, machinists, electronics technicians and the like, and without some excellent lab and shop facilities) could design and manufacture a working "little boy gadget" in any reasonable time frame.

    Note that that's no longer the question — do you think that a such a physicist could build a much more primitive atomic bomb that didn't aim to manage those designs?

    So, I don't think defendant's statement is a credible threat

    Does a threat have to be perfectly literal to be credible? "I'm going to beat the crap out of you" is potentially a credible threat even if we do not believe that the person is actually going to hit someone in a way that will cause crap to come out.

    In the same way, does using the phrase "little boy" or "fat man" required the speaker to actually build the exact design of atomic bomb he is referring to to be credible? "Well, you did drop an atom bomb on the FBI, but it wasn't an implosion design, so…"

  44. Richard Smart says

    Dear Total,
    You have put your finger on the needle's tip. "Credible" permits lawyers to make a living, especially in the USA.

    Suppose Mr Wexler were an outraged former employee of Du Pont de Nemours, with a basement containing a Herbert lathe, a sintering forge, thermite cartridges, and a second-hand Cincinnati Milacron, along with current playthings like a 3D printer – would Ken White still have won his case?

    One suspects a man like Mr Wexler in other common-law jurisdictions would not be so lucky.

    He might not be behind bars, though. I know of one engineer who built a pulse jet cruise missile in his spare time, about fifteen years ago. In some parts of the world people can do this without the possibility that others will put their hobby to nefarious uses even entering their heads – either that, or trying to show terrorists can do it is the whole point.

    All was well till he upgraded it with the first GPS guidance components. He was about to publish the details when the King's men raided his residence.

    Of course, Bruce never went to jail – unlike Mr Wexler. Differences like that are Ken's bread and butter, I guess.

  45. Total says

    with a basement containing a Herbert lathe, a sintering forge, thermite cartridges, and a second-hand Cincinnati Milacron, along with current playthings like a 3D printer –

    I'm jealous just reading this.

  46. Doctor X says

    Sooooooo . . . Richard Smart . . . what you are saying is I . . . er . . . Someone Else should cease trying to make such a weapon in my . . . er . . . his basement and concentrate on aerosolized ebola?

    I am asking for a friend. . . . .

    –J.D.

  47. Trent says

    Total already addressed it but the team members that built the bomb were so confident in the little boy design that they didn't even bother testing it. It was a sure thing. The implosion bomb not so much, it's not hard to make a subcritical sphere of plutonium or even assemble a implosion device, the problem is and has always been the conventional explosives. That is layering the explosives (slow and fast burn) and the timing circuits so that the sphere is compressed uniformly. This all has to be timed to within a few nanoseconds and you need around a dozen or more timing devices that ignite the explosives and as I mentioned all the timers need to be within a couple nanoseconds of each other. Even a few inches of wire more on one of the circuits can throw it off that much.

    This is the reason they tested trinity, as they weren't confident they could get the timing necessary to implode the plutonium to super-critical. I've heard they laid odds of 50:50 they'd get essentially a dirty bomb. This is the hardest part of building implosion bombs, anybody can build a uranium bomb if they have the weapon grade uranium but they are massive and very impractical and even at that size the yield is going to be tiny by today's standards. When they dropped little boy they had to strip all the armoring off the Enola Gay bomber to even get the thing off the runway. IIRC little boy all dressed out weighed about 20 tons. But building a gun type bomb is easy, especially if you aren't planning on moving it and with the proper machining tools and protective gear or a willing disregard for your own health I'm confident anyone with the ability to read a book and run metal working machinery to 50's standards could do it.

    But implosion bombs are uniformly hard because of the implosion problem, you not only need the PU but you need the timers and they are a restricted item controlled at the international level. On top of that you need some really good explosive experts (the reason the US was talking about the explosive tests Iran supposedly did) and the ability to lay multiple layers of explosive with absolute precision and the ability to properly place the timers such that you can generate a uniform shockwave across the entire sphere using a primary explosive charge that ignites all at the same time that compresses to the middle of the sphere. None of this is easy and with the international controls on plutonium and timers it's an impossible task for anything other than a nation state. And even then there is no guarantee. The first bunch of bombs NK produced were duds because of how hard this is to get right. A true implosion bomb takes experts in a dozen different fields from electrical engineering to explosives to metallurgy (you need the bomb to hold together long enough to get supercritical). No lone person is building an implosion bomb no matter what Hollywood tells you. The worlds foremost experts in the 40's weren't confident they could do it the first time with all the resources of the US government behind them.

  48. AlanF says

    "Suppose Mr Wexler were an outraged former employee of Du Pont de Nemours, with a basement containing a Herbert lathe, a sintering forge, thermite cartridges, and a second-hand Cincinnati Milacron, along with current playthings like a 3D printer – would Ken White still have won his case?"

    Herbert lathes are rare in this country, but Monarch 10EE lathes are readily available and are almost certainly what Los Alamos used. Later pits were machined on the Monarch 13EE and 1000EE (constant surface speed versions of the 10EE).

    I am almost completely done restoring my 10EE, but there is no way on earth I would attempt machining any of the materials needed. Whether it is slow or fast, they will do their best to kill you in a variety of unpleasant ways.

  49. Richard Smart says

    AlanF said it best:

    …there is no way on earth I would attempt machining any of the materials needed. Whether it is slow or fast, they will do their best to kill you in a variety of unpleasant ways.

    Whether or not I could think of ways to protect myself, I'd like to emphasize his use of the plural "materials". It's not just the plutonium (precautions involving that are actually comparatively easy). It's the polonium and/or beryllium, or any of the ersatz materials arising from irradiated bismuth.

    As Trent says "none of this is easy". On the other hand the difficulty is why a certain kind of person makes the attempt. The most important element of Trent's observations regarding the difficulty of implosion is the bit relating to:

    the ability to lay multiple layers of explosive with absolute precision

    – frankly the other objections are met and defeated daily by hobbyists, but people tend to forget that the shaped charges themselves needed to be cast then machined, a task I've never seen properly explained anywhere.

    As for the timers, exploding bridgewire detonators can be and are made every day by hobbyists. When it gets too sensitive for a forum, they resort to private messaging. To give you a flavour of the kind of discussion:

    Make sure you hit the SCR's gate hard with a goodly sized trigger pulse. PM me for help ;)

    Some of them are even experimenting with home-made slappers. Fortunately, the kind of person who has the free-ranging mind and experience needed does not exist in dictatorships. I'd point you at a Finnish site but let's not give anyone ideas, because some monomaniacs are frankly frightening.

  50. Dan Mills says

    Not sure I would use a thyristor, turn on is slow and somewhat unpredictable, enhancement mode GaN, or possibly LDMOS, would be the modern way (It only has to work once).

    What you don't do is try it with 1950s technology, back then pulsed energy and timing it at that level was **hard**, not so much today when any worthwhile electronics cad package can do automatic net length equalization. As for the capacitor bank (Huge design issue back then), just lay out a flexi rigid with a bucketload of parallel SMT C0G, make it thin to keep the inductance down and I suspect it would be fine, no assembly house will bat an eyelid at assembling it.

    Exploding wire (or exploding foil) detonator sounds a LOT like a thin film SMT resistor grossly overloaded to me, but you could probably place suitable copper directly on a flexi PCB..

    There is a story in one of the accounts of having found serious problems with voids in cast RDX blocks, one of the researchers late at night deciding to use a dental drill to open the cavity and try filling it…. Dental drill and RDX!

    And yea, that list of basement toys has me salivating (But for model making and microwave ham radio work not nukes).

    One of the things we got really lucky with as a society is that U235 is such a pig to separate from 238 (For all that I have heard rumors of folks experimenting with old CVLs and narrow line width dyes and etalons in basements, that process is tricky).

    Someone getting creative with organo mercury compounds scares we worse from a terror perspective then nukes do (Because it is pretty much high school chemistry to tack a couple of methyl groups onto mercury, surviving is harder but….).

    Congrats on the win that protects our ability to have these discussions of theory.

  51. Dan Mills. says

    what the fuck is going on here

    The number of Physics/Engineering geeks exceeded that required for prompt criticality, weapon design speculation is just the fallout.

    Thing about engineers/physics geeks is that we can compartmentalise the 'cool technology' from the 'bloody horrible WMD', and some of the technology is undeniably cool to a certain type of mind.

    Same way we look at a bridge or a car or a computer, the law by contrast is a mess that really needs some **serious** refactoring (Some bits need nuke from orbit to be sure, see UK libel and gag orders)…

    Besides, as long as it all stays theoretical, it is just talk, which at least in the US is legal (And we thank you for that).

    Regards, Dan.

  52. En Passant says

    Dan Mills. says September 7, 2016 at 7:52 am:

    Besides, as long as it all stays theoretical, it is just talk, which at least in the US is legal (And we thank you for that).

    Not so fast. Hold that thought a moment.

    Remember the OP that led to this discussion:

    Peter Wexler — a man with no record, who volunteered at the library to teach adults to read — spent nearly a year in jail without bail because of his blog posts.

    Ken's exquisitely skilled law partner Caleb Mason obtained four not guilty verdicts and eight 8-4 jury hangs in favor of not guilty for Mr. Wexler.

    The broad opinions for which Mr. Wexler was charged with threatening government officials pale in comparison to the detailed discussion here of methods to construct what is unquestionably a weapon of mass destruction.

    Could a sufficiently zealous prosecutor charge most participants in this discussion with conspiracy to manufacture a weapon of mass destruction, or terrorist threats, or some other similarly rationalized thoughtcrimes?

    Maybe if any participant in this discussion did something as simple as check his collection of rocks and minerals to see if he had any Uranium ore, the government would construe that as an act in furtherance of a conspiracy. Or maybe something as simple as checking an old anti-dust photographic negative brush to see if the Po had decayed would be a sufficient act in furtherance.

    The takeaway here is not that the American government entirely believes that in the USA speech is free, and treats the citizens they govern accordingly. The takeaway is that some government agencies can, and sometimes will, get their undies in a bunch about almost anything any outspoken citizen says. Someone unlucky enough to be charged with such a crime would need as skilled and zealous an attorney as Caleb Mason to defend him.

  53. Dan Mills says

    Which probably means that the way the decision to prosecute is handled is broken, but you occasionally see this bullshit anywhere. Anyone remember the Iraqi supergun thing in the UK where the guy they were prosecuting turned out (eventually) to have been asked to do it by the intelligence agencies….

    Besides, I thought the general engineering consensus, was that for practical purposes implosion was a non starter for below state level actors.

    I suspect that part of the reason for these stupidly overdone prosecutions come down to the close relationship between the police prosecutors and the media, once you have made headlines "Terrorist! Nuclear threat! Protect our precious bodily fluids!", it is kind of had to move to "Man released without charge" without taking a hit to the ego.

    It is not so much the occasional one centering around a threat which if you were hard of thinking could possibly be taken seriously that bothers me, as the fact that I suspect there are a whole raft of far more common cases that don't get the attention.

  54. Richard Smart says

    Dear Dan,
    You're right to worry about prosecutorial over-reach being far too common, but En Passant is also right to emphasis the sterling job done by Caleb Mason.

    I'm reminded of an English lawyer who discredited the crown's expert witness on cross-examination by asking him, without warning, for the specific heat of brass. This was marginally relevant to the (civil) case which depended on whether a brass plug had come loose in a vehicle's engine. The expert witness wasn't able to answer because, of course, this is the kind of thing one simply looks up (for a calculation of heat expansion, say) – so the case against his client failed.

    The moral: You pay a lawyer as much for skills of persuasion as for getting the argument right.

    More generally, our consensus might well be that implosion isn't practical for individuals or even small teams; scientific acceptance comes when maybe just one in ten of those working in the field disagrees with the consensus. But in law of course, either you have the civil standard (51% of experts agree) or the criminal one (all the experts agree except for the ones who are obviously unreasonable).
    An outcome we'd scientifically accept falls between these two standards, so there's always going to be room for lawyers to make a living.

    This is just as well; there might be only one truth, but the state of the art is a function of time.

  55. NickM says

    Doctor X – Ebola virus is hard to obtain..
    Creating resistance to commercial antibiotics in easily-obtained common pathogenic bacteria is the DIY version. Getting the pathogen can be done without attracting much attention. After that, it's mainly about refrigerated storage space and access to small quantities of antibiotics, if you want to go low-tech and see what develops on its own. Inserting antibiotic-resistance genes is much quicker and easier, but you have to have access to specialized equipment that people keep detailed records of purchases of.
    Besides, Enterobacteriaceae are hardy and multiply rapidly if allowed to.

  56. andrews says

    There's no summary judgment in federal criminal law. In fact, once a grand jury returns an indictment, there's no way to test the adequacy of the facts prior to trial.

    In state court, it may not be called summary judgment, but it at least exists. You have pre-trial motions to dismiss. Some of them go to the sufficiency of the charges, and you can shoe-horn a lot into that. For instance, you could argue that even if the def said everything alleged, it would still be within the First Amendment.

    There are a lot of problems with the Federal courts. The idea that you do not have a judicial-labor-saving device such as a pre-trial motion to dismiss does not increase confidence that problems will be corrected.

  57. Richard Smart says

    Where I live, one of the options canvassed during reform of the Summary Offences Act was that the defence would be required to:

    provide an opening statement at the commencement of the trial that identifies the issues in dispute.

    'Issues' included factual evidence as well a procedure. Furthermore,

    If the defence fails to identify the issues in dispute:
    the fact-finder would be able to draw an adverse inference about the defendant’s guilt from that non-compliance.

    – which comes perilously close to jettisoning the presumption of innocence.

    Even better, if the accused's counsel didn't do his job right, "costs may be imposed"! One wonders, would this help with the logjam of US federal courts?

    For context, nearly all low-category prosecutions here aren't initiated by the Public Prosecution Service, but by Police.

  58. Doctor X says

    NickM:

    Hard to find? You have not seen my . . . er . . . my friend's basement!

    More seriously, aside from the "fear factor" and television shows like 24 pretending an airborne version of Ebola has been made, one could just redevelop the influenza virus from 1918-19 that killed more than WWI–between 20 and 40 million. It has already been identified and sequenced.

    –J.D.

  59. Bibliotheca Servare says

    Okay. I'm simultaneously fascinated, spooked, and certain that the probability that the NSA/other agency has assigned some computer to monitor my activities online is rapidly approaching unity, especially given the searches I've just been doing. Oh well. *hapless shrug* *looks up "how to make tinfoil hat"*

    Seriously though, congrats to you and your co-conspirators *grin* on the win!
    *re-activates Lurker Mode*

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