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Shark sucker

When I was a kid I had the Golden Book: The Sea. I dearly loved that little book, and one of the neat things I learned about was a fish called the remora, or “shark sucker.”1 The remora attaches itself to a shark and the much larger shark carries the little fish around with it.

The remora metaphor came to mind when I heard of the most recent example of a birther trying to attach himself to a bigger story. The remora is “self-proclaimed intelligence expert” (Jerome Corsi’s words) Michael Shrimpton and the shark/big fish is Edward Snowden. Snowden was an international news sensation after leaking NSA secrets to the press. Of course what Snowden hasn’t released is a black box to the public, and a black box could contain anything, so birther Shrimpton uses it to add credibility to his own incredible story. You can read that story at WorldNetDaily in an article by Jerome Corsi. Corsi wrote:

In conversations with WND, nevertheless, Shrimpton doubled down on the claims he made in 2008 by asserting that NSA whistleblower Edward Snowden, as part of his negotiations to leave Hong Kong, agreed to deliver to Russian President Vladimir Putin in Moscow the classified U.S. military intelligence file on Obama’s DNA.

How an NSA guy was able to purloin military intelligence files is a question worth asking, right after one asks how Shrimpton knows Putin’s secrets.

In all fairness to Corsi, he is not overly sympathetic to Shrimpton, writing among other things:

Government intelligence experts on both sides of the Atlantic marginalized Shrimpton as a loud-mouthed nuisance and gadfly who lacks professional credentials as an intelligence expert.

Shrimpton has his own legal problems, having been charged with making a false report to police of a terrorist plot in 2012.

When I interviewed Snowden while I was in Moscow in 2013, I asked him about any intelligence regarding Obama. Snowden told that he only had access to secrets involving NSA surveillance.2


1Remoras attach to other things besides sharks.

2Just fooling,

Birther lawyer gets injunction against Obama

Sort of…

Attorney Larry Klayman, notable here for his legal attempts to prevent Barack Obama’s re-election, is also suing the President (and others) over what he feels is the unconstitutional invasion of his privacy by the National Security Agency’s program of massive collection of information about telephone calls and other electronic communications. A similarly directed lawsuit, ACLU v. Clapper, was filed last June and is currently awaiting an order on a motion to dismiss.

Klayman’s lawsuit is styled Klayman v. Obama which is where the “Obama” part of the article’s comes from. There are actually two Klayman lawsuits before Judge Richard Leon, one against Verizon and a list of federal defendants, and a second against those same defendants plus Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and Apple.

The ruling by Judge Richard Leon in the District of Columbia is rather narrow, granting an injunction against two defendants from collecting information about Klayman and one other plaintiff. Then the judge stayed his own order pending appeal.

Reading the memorandum order, I find it it notable that Judge Leon doesn’t seem to be agreeing with plaintiffs, but rather performing his own independent analysis of the government’s representations and the applicable law. One gets the impression that the injunction was granted not because of Klayman’s arguments but in spite of them. In the one rare instance where Judge Leon referenced Plaintiffs’ arguments, he said:

Likewise, I find that plaintiffs also have standing to challenge the NSA’s querying procedures, though not for the reasons they pressed at the preliminary injunction hearing.

As if to underscore this point, Judge Leon cites from the transcript:

… I specifically asked Mr. Klayman whether plaintiffs had any “basis to believe that the NSA has done any queries” involving their phone numbers. … Klayman responded: “I think they are messing with me” … then went on to explain that he and his clients had received inexplicable text messages and emails not to mention a disk containing a spyware program. … Unfortunately for plaintiffs, none of these unusual occurrences or instances of being “messed with” have anything to do with the question of whether the NSA has ever queried or analyzed their telephony metadata, so they do not confer standing on plaintiffs.

Judge Leon pointed out that the complaint fails to even allege that two of the plaintiffs are even Verizon customers, and so the injunction can’t include them. In language that reminds me of something a judge said to Orly Taitz, Judge Leon seems have to figure out figure what the plaintiff’s are asking for, saying:

In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction.

I think that Judge Leon made a mistake in his argument on standing. His analysis is correct in saying that there is a high probability (almost a certainty) that Klayman’s records have been collected and stored–supporting the part of his order enjoining the government against collecting data, but he also argued that Klayman’s records are being regularly queried because every time a new phone number is searched, it must be compared to every record in the database to see if anyone called it. Databases are indexed and it would be extremely unlikely that any record not associated with the target phone number (or a number linked from it) would actually be queried. (As an analogy: one doesn’t have to read an entire book when searching for a topic that’s in the book’s index.) A reasonably-designed database would not require full-table scans to find records that are obvious identifiers such as a telephone number. That mistake removes the justification for the second part of the injunction, prohibiting the querying of Klayman’s records. I will throw in my opinion that a judge enters dangerous ground when he starts doing his own analysis on technical issues. When he judges the arguments from the parties, he can evaluate them, but when he makes his own analysis, he doesn’t have the benefit of experts from the two sides. If Klayman had raised the argument Judge Leon made, the government would have certainly explained why it was wrong, as I did. As it is, the government will no doubt raise the issue on appeal.

Klayman didn’t fare so well before Judge Leon in the earlier Farah v. Esquire Magazine defamation lawsuit, which was dismissed.

D.C. District Court NSA Opinion

What’s a heaven for?

Ah, but a man’s reach should exceed his grasp,
Or what’s a heaven for?

I don’t think Robert Browning’s exhortation has been lost on the birthers. They’ve grasped in the form of over 200 lawsuits, attempts to rally millions to the nation’s capitol and to sway both the electorate and Congress—none with much of any success.

On the legal front, they have been stymied by the lack of standing. In federal court, unless some statute gives leave, an individual can only bring a lawsuit when they can show standing. To show standing, a plaintiff must allege (1) an “injury-in-fact” that is “concrete and particularized,” and “actual or imminent.” While Donald Trump using his celebrity and the power of the media was able to get Barack Obama to release a copy of his birth certificate, Orly Taitz (et al) was not able to do this through the courts because her interest in the President’s birth certificate is not “concrete and particularized.” Despite what she might believe, she’s nothing special.

While not a birther lawsuit, there is a current lawsuit of interest involving a birther attorney, Larry Klayman, who has made a very great reach suing no less than:

Randall L. Stephenson, AT&T, Jason Katz, Palalk, Marissa Meyer, Yahoo! Inc., Tim Armstrong, AOL, Tony Bates, Steve Ballmer, Skype, Microsoft, Apple, Timothy Cook, Salar Kamangar, YouTube, LLC, Larry Page, Google Inc., Facebook, Mark Zuckerberg, Department Of Justice of the United States, National Security Agency, Keith B. Alexander, Barack Hussein Obama, II, Eric Holder, Sprint Communications Company and Daniel Heese.

So is Klayman attempting to grasp onto the publicity teat of the Edward Snowden revelations about NSA intelligence gathering, or does he have a point?

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Doc Returns from G20 Summit: photo

image

I have engaged in a bit of misdirection over the past three weeks regarding my location. In fact, I have been traveling in parts of the former Soviet Union. I took the empty airline seat photo that appeared in my article, “Innocents abroad,” at Sheremetyevo Airport in Moscow, the same place that Mr. Snowden’s putative empty seat photo was taken, although there is no connection between us except the airport.

I bought two hats in Russia including the one pictured above and the other one. This outfit was my attempt to blend in with the local population (one of the locals told me that for maximum effect, I should be carrying a plastic bag).


Note: I was not at the G20 Summit, but I was on the bus pictured above

in St. Petersburg. Obama was long gone by the time I arrived. The photo of me next to a truck was taken in Kiev, Ukraine.