Caradoc

"Never attribute to malice that which can be adequately explained by stupidity, but don't rule out malice."

Boggie Dog

I think a person has to take responsibility for their actions.

Edit to add.

I didn't say the lawyer was dishonest, I just asked a question. It certainly appears that bad info was provided to the judge. Misinformed or not the lawyer is holding the bag.

RadioGirl

As an engineer, I think a lawyer holds some responsibility for simply repeating what he's been told as it's the truth. The blogger says it better than I can:

jkhuggins

And what else is the lawyer supposed to do? The lawyer is representing the client (in this case, DHS) in court. Is the lawyer supposed to personally verify every statement given to the lawyer before presenting it in court?

If DHS knowingly gave false information to the lawyer which was presented in court, then DHS is the party in trouble here, not the lawyer.

GUWonder

When it comes to lawyers who mislead the court in such a way that the court ends up finding out about it, well such lawyers may have ended up putting their case in trouble.

A smart lawyer with a messed-up, less than completely honest and open client -- the messed-up, deceptive client being DHS -- would be smart enough to make efforts to challenge what the client claims/denies about material elements related to the case.

RedSnapper

From the blog:
"Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her. Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.
Major props to Malaysia Airlines for providing a copy of the DHS instructions to Ms. Mustafa Kamal. Other airlines receiving similar instructions have acquiesced to DHS orders to keep the instructions from the DHS, and the reasons for the airlines’ actions, secret from the would-be travelers whose rights are affected. So far as we know, this is the first time an actual no-fly order has been disclosed to a would-be traveler or potentially to the public."

Let's assume that (hopefully for the plaintiff) all of the above is true. If so, the copy of the "no board" instructions that is currently in the Judge's hands is hearsay, at least as of now. It could be supported by 1. Mustafa Kamal stating under oath that she received it and 2. Malaysia Airlines stating under oath that they issued it, and that it is true and accurate.

Now Malaysia Airlines could hypothetically spill the beans about everything, both to the court and to the public. But will they? I'd bet that the DHS already has its overseas henchmen working to ensure that Malaysia Airlines only reports the officially DHS sanctioned version of the "truth" to the court.

RadioGirl

I freely admit that my entire knowledge of the law profession comes from watching television (and reading FT). But I certainly expect a lawyer to be more than simply a mouthpiece mindlessly repeating what the client said. While they can't personally verify every statement, they should at least see whether the claims will hold up under cross examination. Especially if the defendant is (a) not too bright and (b) as GUWonder said, has a record of being less than truthful. Petty thiefs and DHS both meet both criteria.

When the suspect in a robbery tells his lawyer "I didn't do it" I would expect something like: "Were you there at the time? ... Okay, so where were you? ... Can anyone prove that? ... No. ... The store has video surveillance footage - if it shows you were there, then I can't defend you by arguing that you weren't. ... Okay, so in fact you were there, but you didn't do the robbery. ... So who else was there at the time?" and so on.

A lawyer who simply says "My client has never even been to that store" is going to look like an idiot when the video surveillance has a clear shot of his client holding a gun and emptying the cash register. And so he should.

So I would have expected a conversation between Mr Freeborne (wow, the irony of that name!) and DHS along the lines of:
DHS: We don't have the defendant's daughter on the no-fly list. We had nothing to do with her missing her flight. She just arrived at the airport too late for her flight.
Freeborne: When did she arrive at the airport, and when was the flight.?
DHS: Uhh .... We don't have that information.
F: So can you verify that she missed the flight because of arriving late?
D: Well, uhh, ...
F: Isn't it likely that the airlines have a record of when she checked in, and that the airport has video surveillance that might show when she arrived?
D: Well, uhh, ...
F: Okay, so let's not make the argument that she arrived late. And yet she wasn't on the flight. Have you checked with other parts of your organization to confirm that none of them put her on the no-fly list?
D: Well, uhh, ...
F: How are airlines notified that someone is on the no-fly list?
D: DHS sends a "no-fly order" to the airline, and the airline tells the passenger that she is not cleared to fly.
F: Is there a written record of the no-fly order?
D: Yes, but the airline is told to keep the message secret.
F: She was flying a non-US airline, one from a country that may not be entirely cooperative about US gov't requests. If the defendant's daughter were on the no-fly list, is there any possibility that the airlines could give her written evidence of that?
D: Well, uhh, ...

Or maybe I expect too much from lawyers. Law school looks like an awful lot of work to produce people who just repeat what they're told and enjoy looking like idiots.

Loose Cannon

Perhaps contempt citations and jailings for some higher-ups in DHS should be in order.

Boggie Dog

Didn't need this court case to justify contempt citations and the jailing of DHS staffers.

GUWonder

A good defense against a serious charge frequently requires a knowledgeable defense that isn't blind-sided by its own side. But when the client is the government, it's rather different and the government gets away with a lot. National security legal defense strategies are a special work of art that isn't necessarily restricted to moves in a museum-like court.

RadioGirl

Before GSOmeone shows up to tell us that we don't have all the facts so there's no point in discussing this at all, I'd like to expand on this. In my little screenplay above, I made decision to assume this was true. I took each separate statement and considered whether an alternative version of events seemed more reasonable:

"Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions..."
-- Maybe Ms Kamal didn't send this document (or any document) to Ms Pipkin. Ms Pipkin just faked a document and made up the story. The fake was convincing enough that the judge didn't immediately throw it out. Ms Pipkin risks looking like an idiot (but apparently some lawyers don't care ) if DHS provides a real "no-board instruction" for comparison and/or Ms Kamal denies having sent the document and/or MH denies that there was a no-board instruction. Ms Kamal could show up in person, destroying the argument that she's on the no-fly list, and prepared to give her valuable testimony. It's hard to see how forging the document helps the prosecution's case at all.

-- or maybe Ms Kamal forged the document and sent it to her mother's lawyer, instead of coming to testify in person. In exchange for making DHS look bad, she runs the risk that the forgery is discovered (as above) and she loses out on the chance to give direct testimony as the main eyewitness to her mother's experience. Doesn't really make sense as an alternative scenario.

IMO the likelihood this part of the story is true is 99%.

"... the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal... "
-- maybe DHS didn't give the no-board instruction to MH. Maybe MH forged it, and gave it to Ms Kamal to send to Ms Pipkin. Again, the faked document was at least good enough that the judge didn't reject it out of hand. If Ms Kamal was at the airport on time, you'd have to think MH would rather have her on board as a satisfied customer than deny her boarding and blame DHS for it. If she was late, they could have denied her boarding on that basis, as every airline does every day. They run the risk of DHS taking action against them for using them as an excuse. Further, MH could have verbally told her it was DHS (that's what everyone else does, after all); there was no need to fake a document as support. Likelihood this part is true: ~100%.

"Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal."
- - since the judge comments on the document, I think we have to accept as true that Ms Pipkin gave Judge Alsup a document that plausibly resembled an official DHS instruction .

I'm willing to be surprised, but it looks to me as if the events happened pretty much as described.

RadioGirl

Sadly, the bolded section sums it up completely, not just for this case but for the entire DHS.

And national security legal defense strategies are certainly a "[ ] of [ ]" but the words that come to mind are not "work" and "art". FT TOS prevent me from using the real terms.

eastport

That would be red-letter-law witness tampering.

Blocking a witness from traveling to a trial using no-fly rules, when the trial is about those very same rules, is also witness tampering. But it's difficult to do anything when it happened by bureaucratic indifference or (deliberate) incompetence. An individual taking specific action later won't have that protection.

The US Attorneys involved should know how serious of a crime this is, and how it negatively impacts their case. Unless they really believe that it falls under "executive privilege" and they have ten lawyers in court just as a courtesy. One has to wonder what happens if they just ignore any ruling.

Ari

I can't wait to see how this develops. The Judge sounds really pissed off that the might DOJ have mislead the Court, even if unintentionally. The comment about 10 lawyers at the table is priceless.

GaryD

Another original blog post on the issue:

http://www.dailypaul.com/306954/firs...ake-it-because

Some silliness, but a good link to the appeal court decision remanding for a hearing.