tv 1984 Mock Trial CSPAN September 5, 2016 9:00am-10:16am EDT
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>>. [inaudible conversation] ladies and gentlemen, welcome to this shakespeare theater bar association's annual dinner mock trial. before we begin the trial takes time to silence all electronic devices so as not to disrupt his evenings proceedings. photography of tonight's trial is strictly prohibited. join me in welcoming trustee andchair of the bard association, abby david lowell area . [applause] good evening.
thanks for joining us tonight . at the annual dinner and mock trial event presented by the shakespeare company and its bard association, the in affinity group of lawyers associated with the legal community and those who support the legal community to bring the best we can to this wonderful theater. as you know, tonight's performance, tonight's trial is based on the production of "1984" that was presented by the shakespeare company a few short months ago. which in turn is based on the 1949, that's right, 1949 book by george orwell predicting what 1984 might look like. i knowyou all know the story very well . a completely far-fetched story where a country's government vacuums up in norma's amount of data about
its citizens in the name of national security. where a country's leader works hard to keep the people scared and divided to prevent newcomers and serious opposition and by other techniques, encouraging people to have daily sessions where they yell their anger and hate against anyone who disagrees with them. and where the opposition creates a sort of resistance by installing an off-line communications system not in the mainframe of the government to protect private conversations. maybe not so far-fetched. at the conclusion of tonight's argument you're going to ask to be serve as the truth and vote on the following questions. given the context of war and the threat to national security, do the oceana officials named as threats in winston smith's lawsuit be held liable for their treatment of winston smith 1984. if you believe these officials should not be held
liable, please vote with the red token you are given for no. if youbelieve the oceania officials should be held liable, vote with a blue token for yes . i would now like to introduce you and welcome tonight's participants. please join me in welcoming supreme court martial hamlet handling. [applause] and please welcome to the stage counsel to petitioner winston smith, amy jeffers from the lawfirm of arnold and porter . and now, counsel for the respondent of the state of oceania, bob barker.
is now in session.please be seated. welcome to 1984 as esteemed by people living in 2016. we will hear first from the petitioner, rented represented by amy jeffries. >> thank you your honor. it may please the court. my cocounsel, sally they and i represent our client winston smith. mister smith is not present this evening, however and we understand that he may have vaporized. which goes straight to the first point about our argument. there is a clear threat of
irreparable injury in this case. which is why this court must enjoin the state from the unlawful practices of big brother that president rieman promised to him. what injury? winston smith has already been wrongfully arrested, detained, interrogated and tortured and now possibly vaporized. further, he like all other citizens is subject to face constant unwarranted surveillance. as george orwell wrote, a party never lives of first step under the eye of the possible. the state of life in oceania is literally orwellian. the alleged national security reasons for the state's policies are vastly overblown. the state has not identified any concrete information collected through its increase of surveillance used in defending national
security. to the contrary, so far the surveillance has only been used to ensure that oceania's reasons are using the appropriate bathrooms. [applause] [laughter] that's right, the state is surveilling its citizens solely to enforce the first sex bathrooms statute known of course by their acronym cs cs . and how is the state conducting this? we understand the state has pushed now where to all cell phones, tablets in oceania and has unfettered access to encrypted data and cameras on any device in oceania. these policies your honor, will not make oceania great again. [laughter] which is what the faultless might claim.
so the era of big brother is not over as president freeman has promised which leads me to our second argument. the officers responsible ... >> before we move on, president freeman could be making a lot of money running casinos or reality tv programs or giving private speeches to investment bankers. instead, he cares enough to be our president, devoted totally to taking care of the people so it really seems like pure conjecture that the fall. would abuse the powers of observation they have only to keep us safe. >> he cares about only one thing your honor and that is his own power. >> backup because you have introduced the threshold question. you have asked for a sanction to be set by this court for surreptitiously gaining access to your preliminary
briefs. with that identify what sanctions you sought and you did not tell us what was in those briefs that you disclaim so if you would respond to those threshold questions, what sanctions and what do you now disclaim that was in your prior brief? >> your honor, we merely disclaimed our prior breeze in order to protect the sanctity of the attorney attorney client privilege. we knew the state was monitoring all of our briefs as we all know so we did not write anything that we thought would be damaging because we all know that we live under constant surveillance but we did move or sanctions because we believe it's important for this court to acknowledge that the state has abused its authority and that the malware that is infecting all of our devices is improper
and must be enjoyed. >> sanctions, we would like monetary damages of course and we would like to enjoin the state from any other intrusive surveillance of our clients and for all citizens of oceania more for the preliminary questions. all right, and all of my colleagues were appointed by president freeman, so do you think that you can gain impartial justice from this tribunal? [laughter] [applause] now, i understand that president freeman has a light turn in office so when you move that we hold this whole proceeding in abeyance until the elections? [applause]
>> that is an excellent question your honor. that i had not thought of what quite brilliantly put. no your honor, i am confident that we can get a fair hearing from this bench. i would note that approximately half of you have previously worked for the aclu which is an affiliate of course of the oceania civil liberties union and we believe we can get a fair hearing from these judges so we thank you for the question. only this court your honor can protect the rights of winston smith and the other citizens of oceania i know you express concern about surveillance and its intrusion on your work. i just wanted to ensure you that there are and will not be any cameras in the supreme court. [applause] >> miss jeffress i want to focus on your argument that,
about qualified immunity. i'm going to ask you a question . the officers and the ferryman ... [inaudible conversation] they don't speak newspeak? >> your honor speaks excellent newspeak. your honor ... >> would you answer the question as i have submitted it? >> your honor. >> shall we translate? >> if our officers are understood, are these the principles of socialism and ferryman would entirely counter that principle, how could an officer possibly know the meaning of that
case? in other words, you can't win. >> your honor ... >> for the benefit of the audience i will respond in english, thank you. winston smith's right to be free from wrongful arrest, interrogation, torture and unjustified surveillance were all well established at the time of the officers mistreated him. the constitution is still in force in oceania despite the laws that big brother has brought into play. no reasonable officer could have believed it was lawful to subject winston smith to routine beatings and psychological torture. >> i have a preliminary question here miss jeffress. how can you say that your client faith irreparable harm? he can't even show standing. you read our claptrap decision. your argument seems to rest
on a mere train of contingencies which without any kind of risk that is certainly impending. the state has surveillance powers over the eye patriot act to monitor every last vocation of the subject. can't believe the government will actually use those powers west and mark. >> your honor is correct that the court in the claptrap case did find the plaintiffs there have only a speculative claim of harm as a result of the government surveillance practices. here however winston smith and demonstrate the government intends to inspect his cell phone and far worse, detain and torture him so it is worth noting that the dissenters were certainly correct that the plaintiffs there were virtually certain to have their communications intercepted and monitored we need not rely on their defense because the majority does not find the court on these significantly very different acts. >> you are asking us to intervene at the preliminary
injunction stage. why shouldn't we wait until a full record is developed at the permanent injunction stage? why should we proceed on skimpy records rather than all these you want to put in? >> winston smith and the citizens of oceania need immediate relief and only this court can provide that really and it must be done right away. >> but we would note that there is no national security threat as we have said. big brother claims that war is peace when the fictitious war is merely a pretext to maintain the repressive social order and the party's grip on power don't you have a problem that we need to establish a record for? previously you argued in your brief that the party,
continuing with president freeman systematically destroyed the people's capacity for independent analysis and critical thought. as i think aboutcausation i wonder whether the kardashians and other reality tv had already done that to us . >> we are all suffering on a regular basis your honor, that's a perfect example. >> the man who wrote about what you say was done and the name of that man was hamilton and before i say you should get your way i want to know what that man would say. [laughter] [applause] >> your honor, if hamilton were here i know he would say that the defendants in this case, the thought police should be held liable for their illegal with
mistreatment of winston smith . our founding fathers would not have tolerated the abusive authority that big brother has brought to the state of oceania. >> i don't know miss jeffress, i have a question about the record. both sides have experience with rewriting history. the government through its truth the department and that's what winston smith wrote for work right, rewriting history? how can we have clear evidence on what either side is telling us? >> your honor, the court must be referring to doublespeak among other concepts, the practice of holding two contradictory beliefs in one's mind simultaneously and excepting both of them and oceania's slogan war is peace is premised on big brothers indoctrination of its citizens in doublespeak which we are all suffering from. >> you rely on a case called
ex parte miriam that was written by chief justice haney who also wrote the dred scott decision. was he really a reliable source for civil liberties? >> we like the ex parte merriman case because the plaintiffs on. [applause] >> that case was about suspension of the writ of habeas corpus and while this is academic in this case because whether it's executive or legislature, legislature in oceania is under the thumb of the executive. >> that is correct your honor and my opponent relies on the silence of progress as essence by congress and we would argue that we cannot rely on congress to protect the rights of the citizens of oceania.
>> i would view that differently. hasn't congress effectively acquiesced in the unconstrained presidential powers that president freeman is exercising here? congress has not acted meaningfully in years. [applause] in fact, the government leaders can't care so much for the people's safety that they have almost nothing left but safety in congress. >> that is exactly right and that is why we rely on this court or the relief that winston smith seeks. >> of those actions of which you are complaining, they happened 32 years ago. are you discriminatingagainst those with age? isn't there a time when we turn the page after mark ? [applause] [laughter] >> your honor, the thought
police like all officials are presumed to have knowledge and respect for constitutional rights as set forth by our founding fathers to be free from unlawful arrest, detention and torture . >> miss jeffress i have another question about qualified immunity which i would ask you. you say in the brief quote, nothing is illegal. if there were no longer any law. doesn't that mean that no law could have been cruelly established? >> that is what we have with the entire concept of qualified immunity is that there is no rule of law in a state like oceania. again, only this court can restore the rights of the citizens of oceania. so in conclusion, your
honors, we insist that the defendant, the thought police be held liable for their mistreatment of winston smith. they must be held liable. no other outcome is consistent with the constitutional division of the founding fathers that the justice has so successfully quoted and no other outcomeis consistent . >> i don't know mrs. jeffress, your whole argument seems premised that we are in some sort of utopian science-fiction police state or something. >> the scenario is "1984". >> but you are on privacy rights and your client is all over google and facebook and twitter and instagram and snap chat and for this audience, linkedin. he even posted self thesewith lebron james as i understand it . so what privacy rights are
left when you have to concede that apple and google and facebook know more about him than the state could ever learn? >> that is an excellent point. our client however did try to lead a private life and tried to have a relationship with a lover in the state that he was unable to have because of the state interest in surveillance so there is privacy which he sought and in addition your honor i would note that through the malware the state has placed on all our devices it's impossible to know whether all the social media was truly originated by winston smith or had been placed there by the manytruth , the ministry of truth for which he worked for which he and others regularly use to transmit propaganda to support the states repressive regime. >> i also noted that in your opponents brief they made mention for note 5 of practices in foreign countries but you didn't.
you seem to focus only on domestic law. are you aware that justice breyer just published a book called american the law in a new global reality? are you disrespecting his views of the law? >> i am aware of the book, your honor and would never disrespect the justice. >> did you read the book? [laughter] >> i bought the book. [laughter] >> fine, you're the one. [laughter] >> i don't understand how you can raise here winston smith's own description of his reeducation by the state. you said quote, that he loved big brother but the party had
helped him quote, win the victory over himself. winston seems to be a healthy content man. what is he complaining about? >> your honor, the state also argues that winston smith's problem are of his own making. he is a victim of his own mind. but is someone paranoid if everyone is truly out to get him as the state clearly is in this case? this is the case for winston smith. he is the victim. the state criticizes is very thought and how is the state aware of these private thoughts? through its constant, unrelenting surveillance area exactly the practice that this challenges. >> we mightas well dismiss now . smith's case if i'm understanding correctly assert expectations of privacy, the essence of which is his unwillingness to show
everything so we he effectively led himself out of court? an unwillingness to share everything via iphone is contrary to the eye patriot act area . >> would not be showing everything through his iphone if the state did not have it infected bymalware to make his every communication available to the state . >> what about his facebook posts? the evidence is out there. what is your line about privacy and what you are sharing on social media and what you want to share with the state.why can't the state find out too? >> in oceania winston is not free to share his own posts because the thought police and ministry of truth control everything and i would like to reserve the remaining five minutes of my time for rebuttal. [applause]
>> we will now hear from counsel for oceania. >> madam chief justice and get as we strongly recommend it please the court, additional pain of oceania is flawless. what then is this legal proceeding? counsel, case, all open to the public except those who could not afford the ticket price. all the world can see that this violent criminal history is now free to be a litigant and this transition is the hallmark of a rule of law society. there's no claim he has been flawlessly tortured but he grounds that in a record replete with paranoia it's so "1984". everybody is out to get. state officials are whispering cryptically in his
always that we say oh please, it also says our surveillance program is sure to present but how can you know that? why would he not have done it before this spectacle and put him away quietly, sparing him unimaginable legal expense. the court will note our moderation to defend against east asia and eurasia. the proposed recently to build an incredible wall and have been paid for it. that they refuse, if it's not our fault. now petitioner says you should be able to sue the officials who interrogated him for damages citing x partake merriment. x partakemarrinan, that one show of group judicial force assisted by the heroic lincoln . yes, lincoln arrested and exiled operation. yes, he shut down newspapers. but like president freeman, he conceded these temperatures would be temporary.
out by the reflecting pool that each year attracts hundreds of thousands of visitors and pigeons, what does he imagine that he sees? that pawnee memorial? number he stands with lincoln and by the officers who acted on the authority of the order issued in the constitutional tradition he forged so allow me to close now in the words of shakespeare. when this shall see uprising in our throne, his season will sit blushing in his face, not able to endure the site of day, the self provided tremble at his skin or to put it more simply, deny the claim, we will take it from there. [applause] >> you have made some strong arguments against winston smith.
but as i read your argument, you seem to be saying that no one is planning to object to whatis going on . your threshold argument is in its standing go away,who does have sin? >> truly somebody who has not already been vaporized . they can hardly be standing if they are a vapor. [laughter] >> anyone who has not yet and vaporized has standing? >> well, it's a good start. >> and everybody except this 24 seven surveillance so among those everybody who
considers. >> as you know, these telephones are equipped with a device that is activated only upon the application of certain criteria. the petitioner doesn't know what these criteria are, does not fight them and has no reason he would be arrested because of their application. we would have to have a petitioner coming in same here are the reasons i am confident the cell phone will be foregone and i will be followed. nobody's going to have the nerve to come and say that. >> i think your argument that the protective harm to winston smith is conjectural proves too much because in your view, even thinking about this lawsuit made smith county of thought crimes. once he filed it, you either have to get after him or admit they really don't care what people think and if the government doesn't care what people think, how can it defend a total surveillance regime under the patriot act? >> judge, the government
cares profoundly what people think or we wouldn't be equipping cell phones with these surveillance devices. >> let me pose a newspeak question for you. i couldn't figure out how to question the government in a way specifically designed to question the government impossible. so i want to ask is this about surveillance. the seminal brief, post reeducation leaves a quote, less likely under any rational targeting criteria, that's from your brief. i don't see how that's consistent with oceania's 1984 policy. we are traveling to the population and later making them disappear. winston, old or we shall show
you. >> i shall point out to you that the records show by the end of the book winston smith is still very much with us and though counsel today chose not to appear with him, he is represented. there must somewhere be an engagement letter. >> did you mean lincoln the president or lincoln the automobile? [laughter] >> i'm the one that runs in compliance with all applicable safety standards imposed by the state of oceania. >> how do you turn on a cell phone anyway? >> i'm sorry, how did he turn on? >> now know, how do i turn on . >> you don't have to worry about that at all judge meyer. we are going to turn it on for you when we please . >> your brief and some of your arguments, your understating the level of intrusion. it's not just the monitoring
through the phones but isn't it true you recently adopted eight so-called metro safe track program designed to keep us all trapped in our homes for the next year so you can monitor us more closely? [applause] >> judge, i didn't hear all your questions. >> you're not doing your job. >> you're not responsible for the traffic in this city, are you? >> that answers your question. >> the metro program keeps everybody locked in their home, did you start that? >> it's entirely a pilot project. >> know, but i'm getting very interested now. why are you doing all these things? >> we are doing what is necessary to protect the state of oceania. again, the petitioners
himselfadmitted to committing all kind of threats . the threat of insurgency, aid to our enemy. the threat that that book would go on and on and on. >> my book? [laughter] >> no justice breyer but i'd like to see the word about the audio version. >> let's go back to your point that why winston smith, he has already been vaporized. what about the part of his brain, we did it before and we can do it again. as thomas is understanding. particularly when we think about the sexual offender registration law, hold premises if he did it once, you are likely to do it again so mister smith's prediction
isif they did it before, they are likely to do it again . >> that's what this doesn't account for. we have a rigorous reeducation program that as you know we have funded. race to the bottom. and our goal there was to provide what we call a border curriculum. the effect of which is to make sure when mister smith emerges, he is a changed and betterman. a very contented man that judge field goal has identified so correctly in the book . >> i want to follow up with this question though because why are we going after this poor man winston smith? all we know is he's a far greater dangerto the state . this implies blatant thought crime. what's wrong with this danger?
>> brian is not my client although he also seems to be litigating my book. i'm most responsive to him your honor but what i want to say about that is o'brien doesn't admit to the authorship of that book. that book is a thinly described tract of an argument against dictatorship by leon trotsky and it advocates the most violent methods to unsettle democracy so o'brien is part of the solution and not at all part of the problem. >> why wasn't julia prosecuted, that's my question. did she play the woman card? >> oceania is a merciful state that applies the law under specific facts. there's no indication she was anything other than someone who, in the love with this man, had been induced to enter into the conspiracy.
it's a shame to say that oceania lacks the rule of law when it's brimming over with that kind of empathy. >> i have a question about the rule of law in oceania. it seems the legitimacy of freeman's administration depends on the people believing that by winning the election they won their civil liberties. i'm confused by you saying that o'brien is your client. you are representing this and not the individual defendant and you are missing an opportunity here. you could have the illusion of the rule of law and do whatever you want if you would just pin it on the individual defendant. why are you even here with a qualified immunity appeal? oceania says oh, it's all their fault. not ours. yet you are appealing. avoid liability for the freeman administration and let the individual take the fall. does that work?
>> that sounds really appealing, thank you for suggesting it. >> we want to settle over again. >> that's very good, yes. >> but how can you possibly claim qualified immunity to individual defendants in a case like this? we do have a constitution stipulated and spilling for. are you asking us on qualified immunity to bring about a number of principles? >> your honor, as you know we adopted the united states constitution. that is to say we fully believe in. we're adapting it to current conditions but one thing we know for sure is the executive order pursuant to which these officials acted was well known for years. there's a reason to believe they thought it was anything other than lawful.
there's no reason for us to hold those lower on the totem pole responsible for the errors or the misdeeds of the higher ups and the higher up in turncould never be prosecuted for their misdeeds because they're not capable of committing them . >> setting aside the executive order you mentioned in response to justice ginsburg's question, arguably concerned that an officer, that was unlawful to put on his face a wire tube filled with rats. >> your honor, first of all i would answer in two parts. number one, i would say that we have no testimony other than smith's own for that particular episode that you cite. but even if it's true, everybody's a critic. [laughter] >> how far does the state go
in the emergency powers that it is claiming. meaning immediate attention of people, torture of people. torture is okay in the framework, is that your position? >> that's not our position at all. anybody who's attended middle school in the united states knows there's a thin line between reeducation and torture. it's really a matter of nomenclature more than anything else . [laughter] >> is there is such a thing as torture and if there is, how do you define it after mark. >> i have heard presidential debates this year that go on for 3 and a half hours that i would characterize as torture, yes.>> you claim the prerogative to suspend habeas corpus but isn't that
the case that only the legislature can suspend habeas corpus? i'm just trying to understand whether your contending that congress's inability to fill even the most basic functions textually assigned to it such as advice and consent gives the president that ordinarily would rest with the congress. >> your honor, i would say this. congress has not been enacted. it took an enormous amount of work and political will to produce a oppressive act like i patriot. when it needs to rise to the occasion, it does help when nobody even read it before it was enacted. >> that includes the members who passed it, yes. i don't get an accurate statement ever that we are saying congress had no role in the suspension of radius as in the example we gave you earlier. congress in that instant acted years after lincoln
ignored this and here we have a whole period of congressional acquiescence and your honor, acquiescence is far better than gridlock. >> does your answer to judge pillard documents from the truth department? >> precisely. >> that's my case. the point i made with your floor, i asked you exactly with mrs. jeffress is that you represent a government that works in the truth department where you work in history. we have included some of the most draconian provisions area how do you have any basis of criticizing history policy and how can we rely on anything you say? i'd like to respond to that judge cagle because it's an important point.
>> in english. >> yesterday.what i would like to stress is i think as in the thin line i discussed earlier, one should not confuse lying or deception with public relations and smart public relations strategy. what smith did is known in this town as spin. a kind of violent a variety but it's thin. it's not lies. >> you did as you heard, minor things like rats and so forth on the winston cage or wherever he was and there are a whole bunch of things here pretty bad and you are saying it was really the higher-ups not the client. we invite the higher ups or would you consider that judicial activism? >> your honor, as i said earlier i think it's very difficult to find higher-ups in oceania for doing anything other than their level best to protect the country but one thing we know, whatever
the record shows about those misdeeds and president freeman may well be can committed to pursuing those higher ups, this case is about smith and smith is a fevered, paranoid discontent who is glad to draw a salary from the ministry of truth until everything went apart on him and we reeducated him and he is then permitted to leave and he has a lawyer and if you are allowed to go free and represented by counsel in this country and all constitutional guarantees at any meeting have been fulfilled . >> i don't have that impression from the record. i did have a different impression but if he's continuing this policy, why don't we impeach president freeman to? ifthere is no law why can't we just be activists ? >> as i said earlier justice breyer, what are wedoing here? is this a fundraising event ? >> in the higher law it is stipulated that we have this.
what constitutional right does smith have? does he have first amendment rights? does he have first amendment rights? does he have any of those rights? >> he absolutely does. chief justice ginsburg and there's no question whatsoever we embrace the united states constitution and anytime that mister smith wants some exposure to those rights, these free to inspect them while enclosed in glass at the national archives. >> i'm not sure this is relevant to the case before us but i can't resist the opportunity since we haveyou here . i understand that in oceania, 2+2 equals 5 and i wonder is that code for gun plus oregon equals due process? [applause]
>> that i think your honor is the new math that has been created byvoter rage . >> i think of the rats on the face for one thing but didn't you cross the line into clearly unconstitutional cruel and unusual punishment when you made a trumpet sick? >> quite the contrary your honor. they are the very best steaks found anywhere. as you know, we also offered him an opportunity to have the stakes with a book we supplied call art of themeal . >> mister bauer i want to assure you i've been given the code of judicial conduct which the freeman administration has enacted. >> judge tatel, under the
holding of williams versus julie you are probably right. >> there's a theory about the constitution displaced in the time of terror and its known as the death chair series of constitutional rights. that is, when the sun is shining, we have all the constitutional rights that we could have but when the storm clouds gather, the desk chairs are folded up and all the lights go away. is that the view that you are trying to get this court to accept, that constitutional rights are for sunshine and not the stormy days. >> if i can liken it for example to a domed football stadium. most people like to watch baseball in the sunny air with a blue sky but every now and then but whether is
fierce and in some jurisdictions, and this is a major an ongoing problem, they close the roof but the game of baseball continues. that i think is an appropriately misleading analogy. [laughter] >> are you listening to mister strong's cell phone or are you not? >> you mean mister smith cell phone? >> mister smith's cell phone. >> our impression is that it was vaporized along with him.we're not getting a signal,to be honest justice breyer .>> if their cell phones are not working we see no harm in that. >> good point. >> is it okay to look at the
law of other countries to determine whether that's a disproportionate punishment? is it okay to look at the other foreign countries to decide whether vaporization is disproportionate and cruel and unusual punishment? >> there are only three countries on the face of the earth and the other two are mortal enemies so we have to be careful about misdirection on their part. >> you forgot the country of euphoria. >> that's covered in your book justice breyer, thank you. >> i have one other question for you and that is really whether this is, your means are disproportionate to the end. if you want to get inside of our cell phones, do we really need to authorize the government to do it? can't most teenagers do it? >> yes your honor but your wishes fulfilled. the government is currently being run by teenagers. [applause] in conclusion, the
petitioner has come here were not in fact because he's no longer with us, to claim that he has standing. he does not have standing. he does not have standing and he should not be here attempting to suggest that this state in this courtroom in this legal proceeding with this public in attendance is in any way lawless. we are merely meeting the demands of the moment as best we can and as i said earlier, we stand in the tradition of some of our greatest presidents who had to take these decks in times of crisis. thank you. [applause] >> mrs. jeffress, i think you have five minutes remaining. >> thank you your honor.
my opponent, i would like to thank my opponent for his eloquent argument today and for the fact that he has conceded the critical point which is that he need not defend the individual officers in this case. he is representing big brother and leaving the individual officers out to dry. >> can i say i am a little tired of all these references to big brother. isn't it time to the glass ceiling and have a big sister. [applause] >> many of the austin the audience would like to think that big sister would not be quite so abusive in the exercise of authority . [applause] >> thank you your honor. my opponent has outright admitted that the government is placing surveillance devices on its citizens including justice breyer. >> i am shocked.
>> the state has argued that winston smith is a member of the insurgency that must be prevented from terrorizing oceania which justifies depriving him of his civil rights and then the state argues he has not established that his civil rights are being violated. this is exactly the kind of doublethink that big brother has brought to oceania, that we depend on this court to put an end to. big brother cannot be trusted. president freeman is nothing but a thinly disguised incarnation of big brother. only this court can protect citizens like winston smith from the draconian abuses of power that the state has committed here. this court must find for winston smith and if there are no further questions, i would like to conclude because some members of the audience may have to return home by safe track. >> thank you counsel. [applause] all rise, the
be oceania officials named as defendants be held liable for their trade treatment of with winston smith in 1984? if you think they should not be held liable you place the red token in the basket. if you think they should be held liable you place the blue token in the basket. the question is given the context of war where the threat of national security, should be oceania officials named as defendants be held liable for the treatment of winston smith in "1984". no for red, yes lou. [inaudible conversation] >> ladies and gentlemen, please welcome abby david lolo for this nice discussion. [applause] while the judges
deliberates, let's make sure we continue the conversation so please let me bring to the stage a person i've known for a while, a great lawyer and somebody who has insight into the themes that this book and play addresses. ed meacham of gibson dunn and crutcher is a trial lawyer and advisor increases and media events and one was one of the lead lawyers advising apple in the controversy that it had and is having with the governments, mainly the fbi that was involved in litigation and advice to the country in dealing with the issues that were both in court, in the media and continue to be so. in a play, and a trial about "1984", what more apt and relevant can it be then to welcome to the state somebody who's living what george orwell only imagined, ted boutrous. [applause] so let's start
with the first question. i know everybody here knows the issue or knows of the controversy of apple versus the fbi but i have actually in my conversation including my own thoughts found that it is very misunderstood. some liken it to a case about privacy, some about the taking by the government of people's property so let's start off by finally hitting the phone to tell us what is the dispute really about? >> thanks addy and thanks for setting the standards so high that i should be entertaining by playing myself so i will try to rise to the occasion and i relish the chance to talk about the apple case we didn't think of it as apple versus the fbi because it really , the case weighs very important issues about national security, the importance of law enforcement and at the same time the privacy and security of citizens . just a quick recap of what happened, after the tragic
events in san bernardino in december, the government immediately asked apple to produce information that had regarding to copy a and from phones that they had and other information and apple did that. it had some in the cloud and has a policy of cooperating with the government and assisting the government in response to warrants and subpoenas but the government went a step farther and took the extraordinary step of seeking an ex parte order from the court in san bernardino, a federal court asking that the court compel apple to develop new software that would destroy the security protections on one of the iphones used byone of the killers which was protected by a password . apple has been working, it's an arms race to protect all of our data from actors, from cyber criminals and terrorists and one of the more recent features of apple that included was because of the cherry on top of the security protocol and
protections on the iphone is the geo password. once you put your password in, that conveys all the other security measures and certain encrypted data in your phone, in your actual phone and not be accessed by anyone who doesn't know the password including apple. the government didn't know the password, the individual wasdead . the county of riverside explained it was and the employer's phone, didn't know the password and the government said it needed to get into that phone and asked the court to do something extraordinary which was have apple send, we estimate to be 6 to 10 engineers into the lab so to speak. build a brand-new operating system that would allow the government to hack into a phone and destroy security protections. >> it's a little part a, little heartbeat, little of both. as you are getting ready to argue the big argument, it's that it's sort of both
blinked and it didn't get there so what is the status right now? >> what happened was i had just finished getting ready for the hearing where we were going to argue these hearings and i came to my office and the us attorney was on the phone and they said they might have found a solution that made apples cooperation unnecessary so they wanted to cancel the hearing. they had developed means to get into that particular phone and in another case in your where a judge issued a very strong ruling saying the separation of powers precluded a court from authorizing a backdoor into the iphone, that the government could get into and that this was all going to be a wrist act is what they had invoked, sort of an all-powerful line the government could use to get courts to order private companies to do what they wanted.
congress was going to take the ball and the controversy is outside the court. >> one of the things we said is this is an issue the american people must decide through their elected representatives area where the security of and privacy of citizens versus securing law enforcement and those were all important political issues, policy issues. the fbi director kony said the same thing. these are issues of policy so apple and others have called for a commission and some process because these are important issues. >> let me ask you first obvious question. in 1949, orwell presented his "1984". many would say what we live with today is not as bad as he envisioned. some would say it's worse. not only do we have big brother or semi big sisters watching us, for example the nsa but as questions indicated, there's google and amazon. they know exactly what you bought and what you're thinking. a place where you buy close for your kids and hobbies from your perspective, what you think? as bad as orwell thought,
better? >> i think we are in much better shape than oceania in "1984", let me get that on the table. i do think there are big differences. we have this information capability and yes, we all give up certain privacies when we voluntarily post things on facebook butthe difference , and again if you look at, ironically if you recall the most famous ad full-time with the "1984" added by apple.
enacted in 1789. and so, that was what the government had to use to get the court to stop software to allow the government to get into devices. one of the things we argue is that what we the grand prize for hackers that they could then use that can misuse it for illicit purposes. they relied on an opinion from 1807 for the clerk was required to decipher something on the stand. that was the lot they were reliant on to ask for the brand-new technological order from your beard the law does need to be looked. as you suggested, there is
incredible surveillance techniques the government now has. immense power. we want the government to use that to protect their country, protect citizens, go after terrorists and evildoers and all of that. at the same time with different interests and our country. privacy, security. we need the laws to be revised in a way that checks the government so we don't start going small steps down the big brother load. >> the bedrock principle of the fourth amendment and the check of power in outlay of the most traditional comes to touche nonsense is the expectation of privacy. given what we now know it says, ranging from the nonstop social media to cameras on every street corner to the ability of the government and private enterprise to be involved every time we turn on our computer appeared as the expectation of privacy change so the law will now reflect that we do not in
that kind of place where you shut your doors, shut your shutters. is that one of the things that now needs to be addressed and if that case, the court legislation or decision? >> we all have a different exit edition of privacy than we did 20 years ago because of technological advances. we give it out in order to participate in this incredible tools and apps and technologies. so i do think the courts will be important. the supreme court has applied the fourth amendment in a way that protects privacy and the sanctity of your home when drones and other things are being used. we have seen some backlash. we saw the verdict against a gawker by hulk hogan and acting there was a sense there of the pushback in terms of some things still are private. but we have to look at it
differently. that is one of the big savings in protecting privacy data. our lives are their comment that we need the law to protect that and also we need to look at other interests important as well. >> if you have the ability to tell the congress who is looking at this right now the one thing they should legislate to get the balance right, the one thing, what would that be? >> it would be that there should be encryption to protect the end of the line. the ballot should be struck to protect data and not to give a backdoor to the government because of all the risk. the defense secretary during the controversy that we just went through that end to end encryption and for national security. i would start with that premise and there are competing laws and bills on both sides. start with that premise and then
think about how we address these other issues. >> end to end encryption, i take it we are ready to live with the proposition that if the government can't get at the data through their means, they don't have the power to compel it by any other means, i.e. a backdoor. >> our system is helped by the fact that at some point we recognize law enforcement or other interest giveaway to other important interests like privacy, first amendment rights. forcing someone to write code to do something they strongly believe against was compelled speech and the supreme court has said many times our bill of rights exists to say at some point we may not be able to get every piece of evidence but it's worth it to give that up to protect overriding values and rights. a >> one last question. this is a special idea of supporting the special theater.
please be seated. >> please welcome abby david lowell to read the jury's decision. [laughter] i think i'm going to do for her to the bench worst. >> as i was saying, councils was superb and what was i saying this audience will agree a more difficult case and is usually presented at these mock trials. so you are both excellent.
clark not in the majority has been looted that this is a very easy case because if war is peace and we are in peacetime and there is no excuse for any of these extraordinary measures measures -- [applause] if i can interject a serious note, the great confronted with the question, supposed the police dispatch that they have apprehended someone who knows where and when the ticking bomb is going off, can the police use
torture to extract that information? the answer was simple. torture another. and why? because we could hand our enemies know greater victory in our concern for security. we lose all the basic values that make us a human society. [applause] and now, i will ask my colleagues on the bench to add concurring and in one case a dissenting view.
so justice breyer first-period >> well, with my colleague, justice ginsburg, i agree that this good of an opinion as i ever did see. besides that, she has clout because ginsburg knows what she is talking about. [applause] >> i concur that the judgment in part because i think this state is overly excessive and what it's doing. we know it is not necessary if the goal here is to stop the 1% of people who are terrorists. there's been an alternative plan discussed in the public and that will be just to tax the 1% and take all that money to buy tickets for everybody else. [applause]
>> i would say that the government is not entitled to qualified immunity. qualified immunity does not apply where the lot is established and because oceania is omniscient, you must know the law whether it has been announced by any court or not. the >> in our dissenter. >> with all due respect to my colleagues, of course this'll be the first time the supreme court has not agreed with me. [laughter] i don't feel than i'm in a position to decide this case. ms. tran 11 and mr. bauer who represent clients and then rewrite history for decades. the country and its predecessor
through its truth department so i have absolutely no confidence in the record for any of these fine lawyers told us today. as a result, i would issue an order required each of them to submit within 30 days an affidavit by a person qualified to testify to the fact as to what actually happened here. and then i'll decide. [applause] >> and now can we have the jury's verdict? >> so as justice breyer likes to say that in a way, this theater has always given the audience it's final say.
the tokens represent, if you remember lou for those who believe that the oceania officials should be held liable for their actions against with an infinite and that they should not be held liable. [applause] >> this concludes wednesday in the oceania presented by their shakespeare bar association. enjoy the rest of your evening. [applause]