Patterico's Pontifications


Feds Say “Terror in the Skies” Flight Was Indeed a Terrorist Dry Run

Filed under: Air Security,General,Terrorism — Patterico @ 3:37 pm

The Washington Times‘s Audrey Hudson reports:

The inspector general for Homeland Security late Friday released new details of what federal air marshals say was a terrorist dry run aboard Northwest Airlines Flight 327 from Detroit to Los Angeles on June 29, 2004.

This is the “Terror in the Skies” flight previously reported by Annie Jacobsen. Hudson says the full report will be available Wednesday; in the meantime, there are excerpts (see Captains Quarters, for example) that shed a little light on the subject, but not much.

This will be interesting.

My previous coverage of this flight includes these posts:

P.C. Consequences?

Government vs. Common Sense

A Different Perspective on “Terror in the Skies”

Ridiculous Government Policy Not Debunked

“I’m Not a Pessimist. I’m a Realist.”

Airline Hijacking Attempts Are Still a Concern

“Terror in the Skies” Update

Anonymous Air Marshals and Flight Crew Members Continue to Contradict Annie Jacobsen

More from Alleged Lone Hysteric Annie Jacobsen

UPDATE: When I first read this story, I wondered whether we would really have to wait until Wednesday for the whole report. And indeed, we don’t. Thanks to reader steve, here is a link to the report.

I see already that commenters are noting that the report doesn’t say the flight was a terrorist dry run — and indeed, it does not. But read Ms. Hudson’s article again. She doesn’t claim that. She says the report releases new details of what air marshals claim was a dry run. And indeed it does.

I am interested in hearing more about Ms. Hudson’s support for the assertion that air marshals have made this claim. I recall that air marshals at the time were remarkably defensive about the idea that this might be a dry run. But I have respect for Ms. Hudson and will continue to read her articles for more information in coming days.

In the meantime, some of you commenters need to work on your reading comprehension skills.

UPDATE x2: Here are some of the details noted by the report:

During the flight, about eight of the 13 Middle Eastern males behaved in a manner that aroused the attention and concern of flight attendants and passengers, and later of the air marshals and pilots. Suspicious activities noted by flight attendants and other passengers included:

• One man, with a limp, sitting in the emergency row area, repeatedly refused to exchange seats, pretending not to understand English, even though he spoke English to the gate agent. The promoter eventually helped convince him to change seats.

• One or two men walked the aisle, appearing to count passengers.

• One man rushed to the front of the plane appearing to head for the cockpit. At the last moment he veered into the first class lavatory, remaining in it for about 20 minutes.

• One man carried a large McDonald’s restaurant bag into a lavatory.

• Several men spent excessive time in the lavatories.

• Another man, upon returning from the lavatory, reeked strongly of what smelled like toilet bowl chemicals.

• Some men hand signaled each other. The passenger who entered the lavatory with the McDonald’s bag made a thumbs-up signal to another man upon returning from the lavatory. Another man made a slashing motion across his throat, appearing to say “No.”

• Several men congregated in the aisles, changed seats, and arose when the seat belt sign was turned on in preparation for landing.

Well, I don’t see anything suspicious there! Anyone who finds possible terrorist activity in that list is either a hysteric or a racist!


UPDATE x3: Another nugget from the report is the description of a prior flight in which the group’s promoter engaged in similarly suspicious activity:

Per TSA’s Suspicious Incident Report, the promoter was one of eight passengers acting suspiciously aboard Frontier Airlines Flight 577 from Houston, through Denver, to San Francisco. Flight attendants reported all eight passengers kept trying to switch seats while boarding and during the flight, made repeated service requests in what the attendants described as an effort to keep the flight crew occupied. One took a cell phone into the “front lavatory,” remained in the lavatory for over 15 minutes, but did not appear to have the phone when leaving the lavatory.

File under: “Things that make you go: Hmmmmmmm.”

Using People’s Summer Reading List Against Them in a Criminal Trial: Not Always a Bad Idea

Filed under: Crime — Patterico @ 9:30 am

Howard Bashman has an excellent column about using fiction that people read as evidence against them in criminal prosecutions. Howard argues that this should never be allowed. As well written as Howard’s column is, I disagree with its conclusion. In the abstract, it sounds like an easy call to argue that it violates the First Amendment to use people’s reading material against them. But it’s not an abstract question, as the facts demonstrate:

A man is arrested in Las Vegas on federal criminal charges of traveling across state lines with intent to engage in a sexual act with a minor and using an interstate communication facility to attempt to persuade a minor to engage in sexual acts. The evidence against the man consists of the transcripts of multiple online chats between the man and a police officer posing as a 14-year-old girl. On the date selected for their meeting, the man traveled from his home in Anaheim, Calif., to Las Vegas, where police apprehended him at the designated meeting place.

At trial, the man seeks to defend against the charges by maintaining that he believed that he was chatting with a 30- to 40-year-old woman who had been pretending to be an underage girl, and that he was expecting to meet that woman at the designated location in Las Vegas. When the man was arrested, he was carrying a personal digital assistant (PDA) containing more than 140 stories that described adults having sex with children. The prosecution sought to introduce many of these stories into evidence at trial, to rebut the man’s defense that he was not intending to meet an underage minor for sex.

The Ninth Circuit ruled that the evidence was admissible. Bashman writes that the dissent “stands as a masterful defense of the ability to read and think about ideas free from government interference in a free society. Sadly, that view no longer represents the law in the nation’s largest federal judicial circuit.”

I disagree with Howard’s argument that the Ninth Circuit’s opinion is a bad decision.

I have grave concerns about using people’s reading material against them. But at the same time, it would be a major disservice to the truth to exclude this evidence in this particular case. Take another example that takes the emotional issue of sex with minors out of the equation. A man stands accused of pushing another man off a cliff. His defense is that it was an accident. He is arrested at the scene of the crime with a PDA with more than 140 stories about men killing other men by pushing them off a cliff, and claiming it was an accident.

Do we really want to have an inflexible rule that would exclude any such evidence? Does it really make sense to say that the jury can’t even hear about this highly relevant evidence?

If we excluded such evidence, would we extend the per se exclusion to any writings that the defendant made that he could argue are fiction? Remember, I was against using Jim Webb’s depiction of sex acts with a minor in a novel against him in a Senate campaign. But if someone were on trial for fellating his seven-year-old stepson, and had written a “fictional” story about a man who fellates his seven-year-old stepson, with numerous similarities between the “story” and reality, I would think that would be highly relevant evidence.

This is not theory, by the way. I know of cases where accused murderers are caught on tape in jail rapping about how they killed the victim. Should such admissions be excluded from evidence?

Again, it all comes down to specifics, and I think that blanket rules of exclusion would be unwise.

I understand the concerns to the contrary. For example, nonsensical P.C. attitudes could easily create a situation where, for example, having read Huckleberry Finn or To Kill a Mockingbird could be used against you in a racial hate crime prosecution. After all, these books do have the N-word in them, and blacks have successfully argued to have them banned in some places, for that reason. The specter of misuse of such evidence looms large.

But I wouldn’t solve that problem by excluding all such evidence, including in cases like the cliff-murder hypothetical I described above. That, in my view, would impede the truth-seeking function of the justice system in some cases.

I would have a rule that is very restrictive against the use of such evidence, but that allows it in highly unusual cases like the ones described above. Defense attorneys will still have available to them the argument that fiction is fiction. They can argue to jurors: “You’ve all read books about crime. Do we really want to live in a world where your reading of such books can be used against you in court?” But I think juries should be given the chance to hear all the facts and make up their own minds, in cases where the relevance of the reading material is striking.

But then again, I’m just a tool of the state (albeit one speaking in his private capacity). Feel free to lay into me. But as you do, please don’t be flippant about the idea that this rule could allow serious criminals, including murderers, to go free. Imagine that the guy thrown off the cliff was your brother, son, or dad. And tell me where you would draw the line on arguably “fictional” writings by the defendant that strikingly resemble the actual facts of the crime.

P.S. As always, it’s worth reading the opinions themselves in coming to a judgment on their correctness. The majority opinion is more persuasive. It notes, for example, that the defendant had argued that his intent was to meet a grown woman who pretended to be a little girl. The majority argues that, if the defendant had 144 stories about a man going to meet a woman who pretends to be a little girl, that would certainly be relevant.

The dissent makes the Huckleberry Finn argument I note in the post. But it also unpersuasively argues that the majority confuses fantasy with intent, and gives all sorts of examples of people who engaged in fantasy who did not even arguably engage in criminal acts with criminal intent. For example, the dissent says:

Johnny Cash probably could not have written Folsom Prison Blues without imagining himself a murderer imprisoned for life — “I shot a man in Reno, just to watch him die” — but there is no reason to suppose that he ever intended murder in real life.

Indeed. But what if Johnny Cash really had shot a man in Reno — and the issue in the trial was whether he had done it in self-defense, or just to watch him die? In that case, I would think it highly relevant that he wrote lyrics saying that he had shot the man “just to watch him die.”

The dissent says the majority confuses fantasy with reality. But in truth, the dissent confuses people who only engage in fantasy with people who have arguably acted to make their fantasies a reality. There is a difference, and the dissent (and Bashman) should not paper over this difference.

Memo to Stephen Kaus: Let’s Use Facts and Not Mythology

Filed under: General — Patterico @ 8:34 am

Memo to Mickey’s brother Stephen:

  • Carol Lam did not engage in a “continuing investigation[] of powerful GOP Congressman Jerry Lewis . . .” — Debra Yang did. (Blame misleading wording by the L.A. Times, reinforced by Think Progress, for this one. Still, I’ve written about it, Stephen, and I know you’ve read my posts on the issue because you say you have.)
  • It is not true, as you claim, that the investigations of Jerry Lewis and Dusty Foggo caused

    Kyle Samson to famously write on May 11, 2006 that “[t]he real problem we have right now is Carol Lam.”

    Rather, Sampson wrote: “Please call me at your convenience to discuss the following,” referring in part to “[t]he real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires.” It’s “with,” not “is.” As long as you’re putting things in quotation marks and all. “Let’s discuss the real problem we have right now with x” is not as serious as “The real problem we have right now is x.” Subtle — but still, the facts are the facts, and quotes are quotes. Get them right.

  • Also, it’s “Sampson.” The hair is way different from Samson. (It’s a typo, unlike “Inglesias,” or “Mark Garagos” both of which misspellings appear again and again.)
  • You say James Comey “debunked a charge by political DOJ appointees that Lam had an unacceptably low rate of gun prosecution. Comey pointed out that if the local District Attorney[‘s] office was adequately prosecuting gun crimes, as it was in San Diego, there was no need for the federal government to step in.” Comey didn’t say that the local District Attorney was adequately prosecuting gun crimes. He said only that if it was, that could justify a low number of federal prosecutions. He didn’t debunk the charge regarding Lam’s low numbers on guns. He said that Lam had been “in the bottom 10 in terms of gun prosecutions” and that John Ashcroft had asked him to speak to her about it. (Blame TPMmuckraker for getting this wrong initially.)

There’s this whole mythology building up around little misstatements like “Lam investigated Jerry Lewis” or “Comey said Lam’s gun numbers were just fine” or “Sampson said ‘the real problem we have right now is Carol Lam.'” And Kaus’s post incorporates ’em all.

P.S. That’s not to say there’s definitively nothing to this scandal. I’ve seen no proof, but some limited evidence that seems suspicious. But all arguments need to be rooted to facts and not mythology.

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