The Volokh Conspiracy

On Thursday, Checks & Balances is hosting an online forum on whether Section Three of the Fourteenth Amendment bars Donald Trump from running again for President due to his efforts to overturn the results of the 2020 election. The event, "Section Three: Constitutional Remedy or Pipe Dream?" will feature former federal judge J. Michael Luttig and NYT columnist David French in conversation over whether Trump is disqualified under Section Three and what, if anything, state officials or federal courts should do about it. The online event is at noon, EDT, and is free of charge. Registration info is here.

Today's episode of the Cyberlaw Podcast begins, as it must, with Saturday's appalling Hamas attack on Israeli civilians. I ask Adam Hickey and Paul Rosenzweig, both with long histories in counterterrorism, to comment on the attack and what lessons the U.S. should draw from it, whether in terms of revitalized intelligence programs or the need for workable defenses against drone attacks.

In other news, Adam covers the disturbing prediction that the U.S. and China have a fifty percent chance of armed conflict in the next five years – and the supply chain consequences of increasing conflict. Meanwhile, Western companies who were hoping to sit the conflict out may not be given the chance. Adam also covers the related EU effort to assess risks posed by four key technologies.

Paul and I share our doubts about the Red Cross's effort to impose ethical guidelines on hacktivists in war. Not that we needed to; the hacktivists seem perfectly capable of expressing their doubts on their own.

The Fifth Circuit has expanded its injunction against the U.S. government, prohibiting the White House and several agencies from encouraging or coercing social media to suppress "disinformation." Adam, who oversaw FBI efforts to counter foreign disinformation, takes a different view of the facts than the Fifth Circuit. In the same vein, we note a recent paper from two former Facebook content moderators who say that government jawboning of social media really does work (as if you had any doubts).

Paul comments on the EU vulnerability disclosure proposal and the hostile reaction it has attracted from some sensible people.

Adam and I find value in an op-ed that explains the camps locked in a weird war, not over whether to regulate AI but over how and why.

And, finally, Paul mourns yet another step in Apple's step-by-step surrender to Chinese censorship and social control.

Download 475th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

In the New York Times, some acknowledgements of failure of the sort we rarely see from US officials. It would be like leading retired American national security officials announcing in 2013 or so that they completely misunderstood the situation in Iraq for the past ten years.

Yet for Israeli leaders, Hamas was useful, too. It was someone in control of Gaza to talk to …. that could help keep stability, which is why Israel had refrained from a full-scale assault in Gaza. …

"We must admit that the conception was wrong, we can't hide behind it," said Tamir Hayman, a retired major general and managing director of Israel's Institute for National Security Studies…. "This conception has failed."

Yaakov Amidror, a retired major general who served as national security adviser to Prime Minister Benjamin Netanyahu in an earlier government, agreed.

"It's a huge mistake that I did, believing that a terror organization can change its DNA," he said. "I thought that Hamas, because of its responsibility and because it's not only a terror organization, but also an organization with ideas about the future, a small branch of the Muslim Brotherhood, is more responsible, and I learned in the hard way that it is not so, that a terror organization is a terror organization."

In some sense, the false "conception" was an obvious one to fall into, because it's what everyone wanted to believe. There were many reasons to avoid full-scale war in Gaza: general humanitarian concerns, concerns about world public opinion, concerns about casualties, concerns about unintended consequences, concerns about distracting Israel from greater threats from Hezbollah and Iran, and the sense that Palestinians in Gaza aren't going away, they will be Israel's neighbors for the foreseeable future, and Israel did not want to take any military or other action (like a full blockade, cutoff of electricity, etc) that could make eventual reconciliation nearly impossible. A "conception" that allowed Israel to avoid all those issues was attractive.

Now, though, every Israeli I know--left, right, center, religious, secular, etc.--is preoccupied with one thing: the cruelty of the enemy, which shocked even "the right." People are traumatized, but determined, and, after several years of internal dissension, united. One element of that unity is that toleration of Hamas rule in Gaza wasn't (unlike, say, Oslo) a mistake just of one-half of the public, but was based on widely shared illusions about Hamas.

Under the inevitable discovery exception to the exclusionary rule, evidence is admitted, even if it's the fruit of an unconstitutional search, if the government would have discovered the evidence through constitutional means if the unconstitutional search hadn't occurred.  The basic idea is what lawyers call a "but for" causation principle: If the constitutional violation didn't cause the discovery of the evidence, the public shouldn't be worse off (made so by useful evidence being suppressed) just because a constitutional violation occurred.

Last week's decision by the Tenth Circuit in United States v. Streett considers whether the inevitable discovery exception applies when the government obtains a defective warrant—in this case, a warrant based on an affidavit that lacked probable cause.  The government argued that inevitable discovery applies because they would have done better the second time if the magistrate judge had pointed out their error.  If the magistrate judge had spotted the error in the warrant affidavit, the government argued, investigators would have corrected the mistake and submitted a proper affidavit.  In that case, agents would have obtained a constitutional warrant and the search would have been constitutional.  Given that investigators would have responded to the magistrate judge's pointing out the defect by submitting a proper application, the inevitable discovery exception should apply.

The Tenth Circuit agreed with the government's argument, rejecting the defendant's three arguments that the inevitable discovery exception did not apply in these circumstances:

Mr. Streett makes three primary arguments against the application of the inevitable discovery doctrine to cases of a defective warrant. He first contends that this ruling will defeat the probable cause requirement. This is unpersuasive because in deciding the applicability of the inevitable discovery doctrine, courts must still consider "the strength of the showing of probable cause at the time the search occurred." United States v. Souza, 223 F.3d 1197, 1204 (10th Cir. 2000) (quoting United States v. Cabassa, 62 F.3d 470, 473–74 (2d Cir. 1995)). Without a showing by the Government that the officer had probable cause at the time the warrant application was submitted, the Government could not show that an alternative properly obtained warrant inevitably would have been issued.

Mr. Streett next claims that this ruling will diminish officers' incentive to craft a proper warrant affidavit in the first place. We see nothing in our ruling that would give an officer incentive deliberately to file an inadequate initial affidavit in support of a search warrant. Stabile, 633 F.3d at 246. Officers will still be best served by including all material facts in initial warrant applications.

Finally, Mr. Streett argues that applying the inevitable discovery doctrine in defective warrant cases will require too much hypothetical reasoning, since courts will have to consider whether a proper warrant would have been issued after an improper warrant was denied. But hypothetical reasoning is required whenever the inevitable discovery doctrine is at issue. For example, in United States v. Christy, we determined that the officer there likely would have obtained a warrant in a hypothetical world since he had strong probable cause and was cross-designated to obtain state and federal search warrants—even though he had taken "no steps to obtain a warrant" when the search occurred. 739 F.3d at 543. This case involves no more hypothetical reasoning than Cristy.

In the Street case, the Tenth Circuit concludes, the government would have obtained a proper warrant if the magistrate judge had denied the initial warrant application.  The government would have figured out the reason the affidavit was defective, and it could have easily corrected the defect:

In a hypothetical world where the warrant application was denied on [the ground that probable cause was lacking], though, Hartsock would have only had to add a single sentence to the Warrant Affidavit to render it proper. Rather than say "who lives in Bernalillo County," the affidavit would have established probable cause if it had simply added something to the effect of "who, according to the T-Mobile records, resides at 4260 Plume Rd. NW, Albuquerque, NM." That would have been an easy fix and Hartsock already had all the information to add that specificity. Since the Warrant Affidavit resulted in the issuance of the Search Warrant even though it ultimately failed to establish probable cause, it is likely that an even more detailed amended affidavit would have secured a warrant as well. Thus, we conclude that the third factor favors the Government because a proper warrant likely would have been obtained had the original application been denied.

I think this analysis is wrong, although for a reason the defendant apparently did not flag. It seems to me that Streett's reasoning conflicts with the Supreme Court's ruling in United States v. Leon (1984), on another exception to the exclusionary rule—the so-called "good faith exception."  Here was the question in Leon, as stated in its opening paragraph:

This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. To resolve this question, we must consider once again the tension between the sometimes competing goals of, on the one hand, deterring official misconduct and removing inducements to unreasonable invasions of privacy and, on the other, establishing procedures under which criminal defendants are acquitted or convicted on the basis of all the evidence which exposes the truth.

Leon reasoned that if the government submits a defective warrant application, it's ordinarily the magistrate's error if the magistrate signs it and issues the warrant.  After all, the government is just submitting the application; it's the court's order if the court signs on.  On the other hand, if the error is egregious, then it's the government's fault for that and for relying on the obviously-defective warrant materials to search.

Under Leon's framework, the exclusionary rule applies if the government gets a warrant with major defects but not with only minor defects.  The former is the government's fault, the latter isn't.  And there's a specific rule for the scope of the exclusionary rule when affidavits lack probable cause: a defect in probable cause in the warrant application does not lead to suppression unless the affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."

As I see it, the Tenth Circuit's analysis in Street conflicts with the reasoning of Leon.  The holding in Streett matters only if Leon doesn't apply.  That is, it matters only when the probable cause defect is egregious.  And in those cases, Streett rests on a very different picture of officer culpability than Leon.

According to Leon, if the error is big, the government needs to be deterred and is at fault for executing a warrant.  But Streett replaces that with a new picture. Instead of Leon's blaming the government for submitting and relying on an obviously defective warrant, Streett imagines the magistrate judge spotting the error, patiently explaining it to the government, and then the government correcting the error so that no constitutional violation occurred.  Under that view, the culpable action by the police is effectively erased.  Instead of officers being reckless about violating the Fourth Amendment, now they are careful stewards of the Fourth Amendment—if only the magistrate judge had tipped them off to their earlier inadvertent mistake.

To be clear, I am not saying that the ultimate outcome in Streett should be different.  If the error was so easy to correct in Streett, then presumably the good faith exception of Leon should apply.  The government argued that point in Streett, but the Tenth Circuit didn't reach the good-faith exception issue because they ruled for the government on inevitable discovery grounds.  But I think Streett should have been decided as a good-faith exception case, not an inevitable discovery case.   It may not matter to the outcome in Streett.  But it will matter in the next case where Leon does not apply and Streett gives the government a way around the Supreme Court's framework in Leon.

By the way, I realize that some readers have strong views for or against the exclusionary rule.  To some, the exclusionary rule is stupid. To others, the exceptions are stupid.  That's a longstanding debate on which many will disagree.  But I see this post as outside that.  I'm just making a small-minded point about legal doctrine, for the handful of law nerds who are interested: Whatever you think of the exclusionary rule or its exceptions in general, I don't think a lower court should take the inevitable discovery exception that far in light of Leon.

It's by perhaps Israel's best national security journalist, Haviv Rettig Gur:

Theories abound about Hamas's reasons for the assault. Many suggested it was an Iranian-ordered disruption of Israeli-Saudi normalization. Others focused on internal Palestinian politics and suggested Hamas was positioning itself, even at the cost of an inevitable and crushing Israeli retaliation, as the unquestioned leader of the Palestinian struggle after Mahmoud Abbas's death. Still others said the reasons were simpler: The two Hamas leaders in Gaza who prepared and launched the operation were military chief Muhammad Deif and political head Yahye Sinwar. The first lost his family to an Israeli airstrike aimed at him, the second sat for 22 years in an Israeli prison. Neither needed an overwrought geopolitical rationale to piece together such an operation.

There is probably some truth in all these theories. All make sense. But none are how Hamas itself explained the operation in real-time.

Here lies a part of Palestinian thinking and discourse that many of Palestine's Western defenders ignore, both because it's a hard sell to Western audiences and because they don't really understand it themselves. Palestinian "resistance," as conceived by Hamas, is about much more than settlements, occupation or the Green Line. A larger theory of Islamic renewal is at work.

As he announced the start of Saturday's attack, Hamas military commander Deif said it was meant to disrupt a planned Israeli demolition of the Al-Aqsa Mosque. And when Hamas political chief Ismail Haniyeh called on Saturday for "every Muslim everywhere and all the free people of the world to stand in this just battle in defense of Al-Aqsa and the Prophet's mission," he meant just that, that the fight was over holy things, over Islam's redemptive promise.

This reclamation of Islamic dignity through the ultimate defeat of the Jews occupies a great deal of Hamas's political thought, permeates its rhetoric and profoundly shapes its thinking about Israeli Jews and its strategy in facing Israel. Israel is more than a mere occupier or oppressor in this narrative, it is a rebellion against God and the divinely ordained trajectory of history. And by showing Israelis in their weakness, the thinking goes, Israelis are somehow actually made weak. Redemption requires only the faith of its believers to be fulfilled, and seeing is believing….

Israelis can handle humiliation; they are less moved by the politics of honor than are their enemies. But these heirs of a collective memory forged in the fires of the 20th century cannot handle the experience of defenselessness Hamas has imposed on them. Hamas seemed to do everything possible to shift Israeli psychology from a comfortable faith in their own strength to a sense of dire vulnerability.

And it will soon learn the scale of that miscalculation. A strong Israel may tolerate a belligerent Hamas on its border; a weaker one cannot. A safe Israel can spend much time and resources worrying about the humanitarian fallout from a Gaza ground war; a more vulnerable Israel cannot.

A wounded, weakened Israel is a fiercer Israel.

Hamas was once a tolerable threat. It just made itself an intolerable one, all while convincing Israelis they are too vulnerable and weak to respond with the old restraint.

Read the whole thing.

(Two background notes. (1)Nick Riemer is a very prominent Australian "progressive" "antizionist" and his views expressed here are relatively moderate compared to those who are celebrated Hamas' "act of resistance" though less moderate than those engaging in "both sideism"; (2) Everyone knows that the slaughter, rape, kidnapping, and so on of hundreds of Israelis is precisely what Hamas would do to the entire Jewish population of Israel if it had the power to do so. So, with that said…)

There has been too much pointless debate over whether those who call for Israel's destruction are necessarily antisemitic. The important point is that such people know that the end of Israel most likely means genocide for 7.5 million Israeli Jews, and they are okay with that.

Whether they are motivated by Islamism, leftist bs "anticolonialism," hostility to the West with Israel as their first target, or pure hatred of Jews is immaterial, it's much worse than mere antisemitism. Most antisemites aren't full-on Nazis, and as much as they dislike Jews would object to mass murder (just like most people who have racist opinions of black people would object to mass murder). The so-called antizionists do not, and therefore are much worse.

It's a weird tic of American progressivism to worry more about people's expressed moral intentions than their actions, which explains why, for example, moderate liberals are more likely to ally with radical anti-liberal leftists than with moderate conservatives--they think the former but not the latter are "well-meaning.") I really don't care if someone doesn't like Jews. But someone who claims and may sincerely think that they have nothing against Jews, but is content to see my friends and relatives in Israel murdered in the name of some idiotic ideology, that's a real problem.

Here's a test, which in my experience almost all leftist "antizionists" fail. Most of them will claim that they have some solution in mind to the Israeli-Palestinian conflict that will protect the rights of what would become the Jewish minority in an imagined future "Palestine." So you ask them, "well, what if it turns out as a practical matter that your one-state solution, if implemented, will likely result in the murder/ expulsion/oppression of the 7.5 million Jews in Israel. Would you still support it?" This should be an easy question to answer, especially given that it's a pure hypothetical, the answer to which could not be binding. I've asked this many times to "antizionists," and I've never received an unequivocal "no." They are ok with genocide.

(A slightly different version of this post was cross-posted at Instapundit)