January 02, 2006

From the Google Cache

I'm currently in a bit of a spat over at City Comforts regarding the warrantless foreign taps where 1 end is inside the US. In the process of setting up my current reply, I find that something that I relied upon is in danger of dying from bit rot. Thus I'm going to rescue it and put it up on my own blog.

From Google cache here's a very useful comment on the FISA process from Jim Rockford, originally on The Moderate Voice.

Jim Rockford (mail):
What are the stakes? NY Posts reports that there was a conference with Feds, locals in NYC for atomic bombing disaster relief. Prediction: 1.6 million dead.

Those are the stakes. Pretty high if you ask me.

Next, what is FISA? You can read the WHOLE THING online at Cornell.edu . Just google it (use Cornell.edu as the domain in advanced search) and "FISA Law" as the search term.

It's true that almost no FISA warrant is turned away. The real gate is the application process which has ELEVEN major steps and requires about 6 months time to complete from start to finish. These steps are set BY LAW in the FISA statute itself.

The require certification in WRITING by the National Security Advisor (actually, his legal staff which likely runs about 3-10 people and is a bottleneck) on the facts of the issue, WHY the information is foreign intelligence, WHY it cannot be gotten any other way through normal investigative MEANS; and specific minimization issues to protect privacy of any intercepted communications.

The FISA statute is written to limit wiretaps, and requires extensive documentation for each "facility" i.e. telephone, computer, cell phone etc and limits to that facility. If Joe Jihadi walks into a friends place and it's not on the FISA Warrant specifically, no dice. You can tap but have to go back in 72 hours with the National Security Advisor AND the AG written approval.

Which are the two big bottlenecks. Legal staff is going to push back for the bare minimum; their job is to CYA their own legal behinds; and then their bosses. Bad guy catching and terrorism prevention are low on that list. This is why Clinton despite being over-run by terrorism and not being either stupid or a fool rarely used FISA warrants. Consider 1993 WTC attack; the Blind Sheik bridge and tunnel bombing plots; Cole, Khobar Towers, 1998 Embassy bombings, the Millenium LA Airport plot, etc. Clinton hardly applied for FISA warrants because it's a massive undertaking for "circle the fighter jets over the airfield boys!" You can only go to that well once or twice. You can't just add lawyers to NSA or AG staff; these are limited positions with high national security vetting, from a limited pool of people.

You capture 9/11 and 1993 WTC attack architect Khalid Sheik Mohammed and find his laptop computer. He has over a hundred names or phone numbers in the US. Imagine the effort to prepare a 2 inch thick binder for the FISA court full of documentation and carefully sworn written affadavits that won't cause legal problems for the lawyers or their bosses.

FISA was written in 1978 to basically kill with paperwork all but a handful of wiretap warrants, and it did it's job quite well.

Bush argues that if one end terminates overseas, he has a right under terrorism fighting authority as Executive to listen in on that conversation as long as it is related to and tied to information gathered about Al Qaeda activities. If Bush's actions wrongly cause an innocent person to be wiretapped, the worst is that time is wasted by investigators and some secret info of a man or woman's personal life is overheard and soon forgotten as the lead is dropped.

If Russ Feingold's advice to never wiretap at all unless you can push it through FISA, the worst that can happen is that promising leads simply can't get through the system and to the Judge because of the show-stopping requirements, and information that could stop an attack killing 1.6 million people is never obtained.

I know what MY RISK PROFILE IS. Perhaps you'd trade 1.6 million people for civil liberties absolutism. Not I.

In the event of the worst case; 1.6 million people dead, I can imagine not a mosque standing and many Muslims simply dead or interned. A military government. And strategic nuclear retaliation. I think GWB is ironically the greatest protector of civil liberties seen in generations. Yes there is a reason he's angry.

Consider these stakes. Or pretend the fact that we were not hit despite London, Beslan, Bali, Madrid, Tunisia, Amman, Istanbul, Thailand, etc was because bin Laden really likes us now. Or he's no threat. Or maybe what GWB did actually saved lives.

I happen to disagree with Jim Rockford on the nature of the threat. I'm pretty sure that if we were to undergo an order of magnitude higher casualties than 9/11 (30k instead of 3k), we'd have enough anger to roll through constitutional amendments that would gut current protections. We wouldn't have to go all the way up to losing an entire city and million plus casualties. We'd lose the Constitution well before then. The rot has set in enough that we've already endangered political free speech with campaign finance reform and that's just over instances of buying policy outcomes. When lives are at stake, tens of thousands of funerals are already being held, the paper protection of the Constitution won't last long and it'll be overthrown in a way that can't be lawyered away, by amendment and with teeth in it that can't be gotten around.

Posted by TMLutas at 12:58 PM

August 04, 2005

An Odd Walk

My lowered blogging output is, in part, due to exiting the independent consulting field and going back to wage slave status. It's not a bad job but it certainly isn't as flexible as my prior working arrangements. It does get me to downtown Chicago though. I drive in and park a bit south of the loop and walk my way into the center of the city.

You think of Chicago as a regular big city, filled to bursting at the center with tall buildings, gradually tapering off to wider spaces. It's not true here though. If you walk down Wacker Drive from the Sears tower, it's not ten minutes until Wacker stops and Ts right at a huge field with nothing on it. I'm not talking about an empty city block but 8 acres of absolutely empty, for sale land, right on the edge of one of the largest urban downtowns in the Midwest. I can't even imagine what I'd do with that much land. There is no point to the story except watch your assumptions. I wonder what David Sucher would do with it?

Posted by TMLutas at 09:42 PM

July 01, 2005

Ending the Republic

It looks like Phil Carter kind of forgot for a moment what system of government the US runs. In an article on a VA funding shortfall he closes off with this sentiment.

The VA should not have to go, hat in hand, to Congress to ask for more money to care of them.

That's just wrong. The executive, in its entirety, has to go for every penny to the legislature. That's a fundamental part of our system of government. If it didn't have to, the legislature could just go home because it has no practical means of enforcing its will except through the power of the purse. Independent funding means no meaningful oversight or control of the executive. Without that, the republic is merely a fiction and we have an elective dictatorship.

Posted by TMLutas at 11:11 AM

June 07, 2005

Wickard v Filburn Redux

Mark Levin gets it right when he describes the now decided medical marijuana case as a throwback to the 1940s case Wickard v Filburn (1942) where a farmer was barred from growing wheat on his own land to feed his own farm animals. This was adjudicated as being sufficiently related to "interstate commerce" to be regulated by Congress (the farm did not cross state boundaries).

We've been getting away from this sort of "knee bone connected to" kind of logic that draws chains of indirect effects and alleges that the federal government can pretty much do what it pleases without limit. The 5 vote conservative federalist majority disintegrated because the subject was specifically drug policy. This irrationality when it comes to pharmaceuticals is a major reason why I still call myself a libertarian, no matter what foolishness organized libertarianism commits regarding foreign policy.

Posted by TMLutas at 08:11 AM

June 05, 2005


Bill Whittle has an enormously important essay (it's in two parts) on the subject of sanctuary. It examines the wider civilizational concept of sanctuary, a safe place for people to do as they like without Hobbes' "nasty, poor, brutish and short) state of nature impinging on their daily lives and also how various laws of war create their own form of sanctuary. He examines how the war on terror is to a great extent a war on sanctuary.

Read the whole thing.

Posted by TMLutas at 10:56 PM

May 20, 2005

The Necessity of a Right to Violence in Popular Sovereignty

Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.

- George Washington

Where government is not sovereign, there is no independent force. Ultimately either there is no force at all (how much force is their in Cub Scout government?) or the force depends on a higher, sovereign body for authorization. The latter case is seen in municipalities who gain the right to hire police and enforce their own rules on the sufferance of a sovereign state government.

Popular sovereignty, if it is to be more than a mere illusion, has to come with a general recognition that the people have the right to defend that sovereignty, through delegation when their government is their servant, directly when government styles itself their master. When somebody wants restrictions on this or that method of popular violence, there either must be a border condition where they uphold popular sovereignty or they don't believe, as the founders did believe, that "here the people rule".

Posted by TMLutas at 11:13 AM

May 14, 2005

Don't Arrest More Criminals

Ultimately, I'd love to live in a world of open borders. I think that we should move towards that world at all deliberate speed consistent with our security needs. Until that happy day arrives, we have a need to properly control our borders including arresting those who cross illegally. The Border Patrol apparently disagrees.

I don't care whether the Minutemen are vigilantes or neighborhood watch or a border version of the Guardian Angels. There is no excuse for an official of the US government to order his subordinates to relax enforcement of the law so that more violators escape capture and punishment (such as it is in immigration cases). It's purposeful dereliction of duty and conduct that should not be protected by civil service rules. You have a job to patrol the border then you should patrol the border as best you can or stop drawing a paycheck.

Now the original Washington Times article may very well be wrong. Tom Tancredo is renowned for having an immigration ax to grind. The number of Border Patrol officers reporting this (about a dozen) makes it less likely that it's a political spin piece and more a criminal flouting of the rule of law under color of authority.

The next step is likely to get friendly journalists embedded in another effort and simply not tell the Border Patrol until a week or two of patrolling has already gone by. That would make any political adjustments of the type described above by either US or Mexican governments that much more difficult.

Posted by TMLutas at 05:32 PM

March 19, 2005

When is a Rendition, Not a Rendition?

A man (Ahmed Abu Ali) is arrested in Saudi Arabia for a bombing that occurs in Riyadh. The US lets the Saudi government keep him, monitoring his interrogation sessions and participating in some questioning. He's held for 20 months in Saudi Arabia before being turned over to the US and the man's family sues, calling his detention "extraordinary rendition" and illegal under US law. This assertion is breathlessly swallowed by The New Republic as if a 20 month detention without trial is something that is a sign of 3rd world justice. It isn't.

A man is arrested in Spain can be held without trial for up to two years merely on the government's say so. If a judge concurs, the pre-trial detention can be extended to 4 years as prosecutors continue to build their case. The US State Department puts it like this

At times pretrial detention was lengthy. Under the law, suspects cannot be detained for more than 2 years before being brought to trial unless a judge, who may extend pretrial detention to 4 years, authorizes a further delay. In practice, pretrial detention usually was less than 1 year.

There are other EU countries with lengthy pre-trial detention policies. Belgium for instance doesn't seem to have a set limit, just monthly judicial review and pretrial detainees are not kept separated from convicted criminals. Italy permits 24 month detentions and follows Belgium's practice of mixing convicts with pretrial detainees.

While none of these EU states has credible allegations of torture against them, the detention challenge seems to be, at least in part, about the length of detention without charges being filed. Calling a foreign arrest of a US citizen extraordinary rendition when the US does not submit the paperwork to extradite them back to the US seems a bizarre legal theory but that's what the left is working with.

The next time you hear about "extraordinary rendition" don't swallow it uncritically. The term is getting an orwellian face lift and that has to be challenged.

Posted by TMLutas at 10:18 AM

October 18, 2004

Wikipedia Citations

Over at the Volokh Conspiracy, two items, one by Eugene Volokh and the other by Orin Kerr note the problems of citing Wikipedia, based on accuracy issues for the purpose of court briefs. Another problem is Wikipedia's malleability. One has to be careful to not only cite the correct URL but also some sort of time stamp or version stamp as an entry that supports you when you looked it up, can make the opposite point four hours later.

Another issue that is not raised by the two legal scholars in their objections for court usage is that there is no bar to simply editing a particular article to make it say what you want just prior to citing it. Without some sort of longevity measure on the data in a Wikipedia entry, Wikipedia's usefulness in any sort of judicial proceeding is dubious.

But this does not mean that the collaborative encyclopedia model is beyond saving, just that the current technology platform that Wikipedia is running on lacks at least two features that would meaningfully extend its usefulness to the courtroom.

Both articles had me thinking one thing though. Did either of them fix the Wikipedia errors they spotted? Why or why not?

Posted by TMLutas at 02:40 PM

October 10, 2004

Is the End Near for Microsoft?

Burst.com is alleging Microsoft cheated it out of licensing revenue and stole its technology to make their Corona product (a streaming media product of which the front end is Windows Media Player). One of the truly astounding facts that has just come out from under seal is that Microsoft very likely has been illegally destroying evidence throughout the multiple antitrust trials. They have done so simply by creating email destruction policies that are very aggressive and only keeping emails around when there are specific retention requests out on specific matters under litigation. the major problem with this is that some people central to the facts under litigation have apparently not been getting retention notices and merrily destroying relevant evidence for years and stretching across multiple lawsuits.

This sort of evidence spoilage, if done purposely to gain a legal advantage, can reopen all the cans of worms that Microsoft thought it had closed with various settlements and verdicts. Everything comes back because testimony that should not have been let in was let in. What's worse, testimony that should have been presented was not because Microsoft lied to the court about who the relevant players were.

Why this sort of evidence spoilage is going on might be divined from the actual policy on email destruction. Yet Microsoft refuses to release said policy and apparently has never presented it in any of its prior rounds in the courts. Normally all this would be under seal but the judge has ruled that this issue is better out in public. The two relevant PDF links are here and here.

Personally, I don't believe in antitrust law. An honest monopoly isn't something that is going to brew that many problems in my opinion. The problem is plain old corporate lying, cheating, and stealing. Since Microsoft is immense and immensely influential, when it engages in such corporate misconduct the bad effects tend to be bigger both in dollar terms and in terms of damage to our economic system.

An honest Microsoft would be a real boon to our economy and to the world. Unfortunately, we haven't seen an honest Microsoft in many years. The more they use corrupt practices and tactics, the less they are a benefit and the more they are a hidden drag on us. And to this day we still can't figure out how bad the problems are. After all, after thirty days, they delete the email.

Posted by TMLutas at 03:54 PM

October 08, 2004

Dust off the 3rd amendment III

I'm sure that the local PRC villagers on the North Korean border wish they had a 3rd amendment right against quartering. It seems that the PLA can just drive tens of thousands of soldiers into an area, unannounced, and force people to quarter soldiers at will, in this case, 5-6 soldiers per household. What would you do if you suddenly had 5 or 6 uninvited houseguests courtesy of your government?

Posted by TMLutas at 11:18 AM

September 01, 2004

Idiot Prosecutors

The closest thing a prosecutor can get to treason without actually aiding and comforting the enemy is to withhold exculpatory evidence in terrorism cases and obtain wrongful convictions that have to get thrown out of court later. Law enforcement models work badly with anti-terrorist action, which all too often stops plots by the use of secret information that cannot come out in open court. When a prosecutor says trust me, trust your government, he asks the jury and society at large to look at the record of the government's actions. The next time a prosecutor says, or implies that, it's going to be just that much harder to put the bad guys away.


The only possible silver lining is that the government might want to go through the entire process again, this time without the prosecutorial misconduct, and convict them again.

Posted by TMLutas at 05:34 PM

July 30, 2004

Making the World Love Us

After a night's sleep and a bit of reading, I think I know what the price will be for a Kerry success in making our traditional allies love us again. As I've noted in the past one of the major player factions on the global stage is a group of people who thrive on monopoly/monopsony profits, providing the spider thin controlled connectivity that most Gap states have to the Core in order to supply the elite's whims for expensive cars, jet setting travel, and PS2s.

The US has played along with this game in the past but the major unforgivable sin of this Bush administration in old Europe has been threatening all these sweet, cosy deals by wanting to open connectivity wide and bring in all the world's major players into these countries, bringing prosperity and freedom to the Gap while costing the established players their ultra-fat profits.

This is the heart of France and Germany's beef with us, the reason why they are so implacable in their enmity. Major contracts are threatened, established relationships would largely be rendered worthless, and a high amount of unpredictability would ensue with US firms winning an awful lot of those new opportunities. The problem is that Bush wants to bring too much competition, too much free market, too much rule of law into the Gap. Pace, Dr. Barnett this is not a neo-marxist critique but rather a very capitalist one.

Kerry has an opportunity to reestablish peaceful relations with Germany and France, Russia and the PRC by letting them maintain and expand their network of spider-thin connectivity webs, by running the GWOT as a war without Gap shrinking. Satisfy these established powers, don't force rule set resets in the Gap, and all will be right with the world. We will have glowing press releases. The UN will bless our military endeavors. All we have to give up is any hope of ending the war by appeasing the implicit villains.

We would end up in an Orwellian nightmare, 1984 writ more complex with a kaleidoscope of ever shifting enemies in the Gap, reaching out and striking us in unpredictable, bloody ways but with us unable to do much more than we did in the Clinton administration. The major difference is that the tents will not be empty, individual terrorists will be killed. The only problem is that we will be accelerating their creation with every strike.

If the opposition we're encountering in old Europe is truly centered around the hidden villains, Kerry's boxed himself into authorizing a perpetual war. It'll be containment v. rollback all over again with GWB being the early rollback guy and Kerry accepting aggressive containment as the best we can do without losing France and Germany again.

Do we really need another four decades of continuous cool war before another heir to Reagan comes along and rolls back the Gap? I certainly hope not.

Posted by TMLutas at 12:12 PM

July 29, 2004

Return of the General Warrant

One of the original grievances that the american colonies had against George III's government was its penchant for issuing general search warrants (called Writs of Assistance). A judge would issue a warrant for a general area and crown officers could search any place in that area looking for illegalities without any prior cause or suspicion. An awful lot of innocent people were inconvenienced, their possessions disturbed, broken, or turned up missing after such searches.

The general warrant seemed to be making a small comeback in Oshkosh, WI (no permalink) for a time. According to this story people were rousted from their homes without suspicion and their residences searched, with guns being taken under suspicious circumstances.

Fortunately, the Oshkosh police seem to have had a chat with a competent lawyer and apologies are being tendered for undocumented and illegitimate seizure of guns and there the matter is likely to rest.

HT: Clayton Cramer

Posted by TMLutas at 12:16 PM

July 26, 2004

Political Ad Scripts I

Draft I


After a particularly brutal war that raged all across Europe, everybody gathered in a place called Westphalia to settle things and make sure that there would never be a repeat. The solution they came up with, national sovereignty, saved the world from countless horrible, nasty wars ever since...

Until now...

It's been over 350 years since royalty, military and spiritual leaders all gathered together to hammer out the Peace of Wetphalia. Since then, a few unimportant colonies in the wilderness of the New World became the greatest power on Earth. The International Law that depended on Westphalia's national sovereignty principle stretched and grew and became a huge, complex structure on which rested many treaties, many organizations.

But today the great threats to our security come from people who simply do not accept the limits of national sovereignty. They make war in an older, more brutal fashion because they can't get what they want any other way. They organize across borders and can't be eradicated by declaring war on a nation, or even a group of nations.

For the first time in America's history, the underlying foundation of the world system is up for grabs. A big chunk of the world is too frightened to even try to address the big question. Others see the issues but are just too small to do the work without us.

President Bush broke 350 years of precedent and declared war on a non-state group, he implicitly challenged the world to move beyond Westphalia. The world, to a great degree, has ignored his call because they hope that the next President of the United States will let us all get back to the business of letting us be killed by terrorists at a "sustainable" rate. They are too frightened to do anything else...

Are you?

current running time 1:00

Posted by TMLutas at 08:23 AM

July 24, 2004

Where do Federal District Courts Get Their Power?

Josh Chafetz asserts that H.R. 3313 IS NOT CONSTITUTIONAL (his capitalization). His reasoning is all well and good but it does seem to omit any sort of explanation of how US federal courts that are not the Supreme Court get any judicial power whatsoever. If a court is created by statute, the Congress is the body granting jurisdiction, no? And Whatsoever Congress grants, Congress can take away. A court created by Congress, could even be closed up and done away with entirely so what makes this lesser reduction of authority somehow illegitimate?

You could have some sort of argument about the (male) ambassador of the UK getting married to another man and applying for some sort of spousal benefit in Virginia and suing for original jurisdiction remedy in the USSC but that's not what people are worried about here.

The reality is that the judicial power of a subsidiary court to take up a question is either based in the Congressional authorizing statute which lays out their jurisdiction (and thus amendable by act of Congress, like HR 3313) or it flows from the Supreme Court itself, which can only grant to its subordinate bodies what powers it already has. If it can't do something, what Constitutional power does a lesser court have that is denied to the highest judicial body in the US?

If you were to take this argument seriously, what stops the 9th Circuit from hearing appeals outside its territory? The only thing that stops it is the Congressional authorizing statute that says you don't have jurisdiction. But if Congress' assertions of limits on jurisdiction are not legitimate in the case of gay marriage cases, why are they legitimate in the case of territory or other subject matter, like special courts for terrorism, maritime law, etc?

The idea that Congress cannot amend jurisdiction is both ahistorical and simply unworkable. Amendments of jurisdiction according to territory are no different than amendments of jurisdiction according to subject matter and both have been done in the past without major controversy. The major difference is that this measure strips jurisdiction without providing another federal body to take it up. It thus remains in the hands of the states, something that the anti-federalists who demanded the 9th and 10th amendments would no doubt find very satisfying.

Posted by TMLutas at 06:26 PM

July 13, 2004

Giving Aid and Comfort to Our Enemies I

I'm very sad to say that we're likely to see more in this vein. Protesters are going to purposefully try to set off false terrorism alarms at the Republican National Convention. The net effect is to desensitize us to any real sort of alarm, making any actual terrorist attempts easier and with greater effect.

This, literally, would be providing aid and comfort to our enemies in time of war. It's treason. VVAW activist John Kerry admirably helped stop an assassination plot. He needs to step up to the plate again.

Posted by TMLutas at 11:36 AM

June 02, 2004

Serious Post-Westphalianism II

Alan Dershowitz is trying to reset the Geneva Conventions for a post-Westphalian world. The attempt will fail because he's trying to throw the baby out with the bath water. The Geneva Conventions are perfectly fine for conflicts in which all sides are relatively committed to honoring them. They are like black tie event dress codes. If you're at a black tie event, the rules are just fine. The problem is that the incidence of black tie events is rather small in most people's lives. So you need new rule sets in addition to the Geneva Conventions, not instead of. You need a new protocol that covers in much more detail the growing incidence of combat that does not fall under the convention rule set.

Fundamentally, you need to fill in the grey area of what is permissible when one side or another does not fall within the protections of the Geneva Conventions and you have to explicitly make them pretty bad things. Achieving Geneva Convention military protected status needs to once again become a coveted status because bad things happen to you when you are not protected.

Currently, this is implicit in the Conventions but, like many implicit legal consequences (see 9th and 10th amendments to the US Constitution), the original message has been lost and the genteel art of leaving ugly things unsaid but clear must be replaced with directives that cannot be mistaken or twisted.

The fundamental truth that must be recognized is that including unlawful combatants under the protections of the Geneva Conventions is not civilized and magnanimous. It is rather an expression of decadence and societal rot that denigrates and demeans the sacrifices that lawful combatants and their societies make. All the shortcuts and clever strategies that are denied us by following the Conventions lengthen war, increase costs, and increase casualties.

Urban warfare would be a snap without protections of civilian populations. You just flatten the place and run a rolling line of FAE across the ruins if you're not in a hurry. If you are in a rush and don't mind the radiation, a simple nuke does the job in a few minutes. Instead, we are deathly afraid of urban combat because doing it within Convention restrictions is a long, painful process that causes many casualties on our side.

This new Geneva Convention will be a very difficult treaty to negotiate. It must, however be negotiated. Post-westphalianism is not a conservative, roll back the clock, event (at least if we are to survive it). It is a type of spiral development where we bring back necessary elements of primal, total war sufficient to heal the seams and flaws of our limiting war via tools such as national sovereignty and protection of civilians. These seams and gaps are a great weapon in the hands of the jihadis.

HT: Petrified Truth

Posted by TMLutas at 06:09 AM

May 15, 2004

Not Arrested Yet

The Religious Policeman is back, Saudi Arabia's best current effort showing that there are human beings there, and honorable men. He hasn't gotten arrested yet. It's a shame that he has to worry about it.

Posted by TMLutas at 10:23 AM

May 14, 2004

Spammer Criminal Conspiracy

Spammers in cahoots with virus writers, what a revolting development:

Anti-spam activists who've managed to infiltrate some invitation-only bulk e-mailer forums have come away with new insights into the latest spamming techniques. According to Spamhaus' Dave Linford, spammers aren't interested in lists of open mail relays, as much as they are in lists "fresh proxies" -- virus-infected machines. "People selling these fresh proxies are either the virus writers themselves or someone very close to them," Linford told The Register. "I don't know how ties between spammers and virus writers were first forged but there is clearly a strong link there."

If you benefit from a crime and pay people to let you in on what crimes they have committed so that you can benefit, you're guilty of being an accomplice to that crime.

What are the police doing, not prosecuting these individuals on virus charges as well as abusive spam charges?

Posted by TMLutas at 07:34 PM

Spammer Criminal Conspiracy

Spammers in cahoots with virus writers, what a revolting development:

Anti-spam activists who've managed to infiltrate some invitation-only bulk e-mailer forums have come away with new insights into the latest spamming techniques. According to Spamhaus' Dave Linford, spammers aren't interested in lists of open mail relays, as much as they are in lists "fresh proxies" -- virus-infected machines. "People selling these fresh proxies are either the virus writers themselves or someone very close to them," Linford told The Register. "I don't know how ties between spammers and virus writers were first forged but there is clearly a strong link there."

If you benefit from a crime and pay people to let you in on what crimes they have committed so that you can benefit, you're guilty of being an accomplice to that crime.

What are the police doing, not prosecuting these individuals on virus charges as well as abusive spam charges?

Posted by TMLutas at 07:34 PM

May 10, 2004


Token consultancy to keep Benon Sevan on the UN payroll? $1
Diplomatic immunity so Sevan doesn't spill the beans on UN scandals? Priceless

That's what the rule of law at the UN has been reduced to, a cynical Mastercard parody.

Isn't anybody ashamed? Certainly not a voting majority of nation states.

Posted by TMLutas at 11:25 AM

May 08, 2004

Abu Ghraib Report

Apparently, Omar from Iraq the Model knows a doctor who rotated through Abu Ghraib for a month (apparently this is SOP for Iraqi doctors) and saw conditions at first hand. It's reassuring to hear that yes, the abuse was isolated. We can't just take one man's word on things but it's nice to see at least some independent verification of the "isolated incidents" meme the administration is throwing around.

Posted by TMLutas at 06:21 PM

May 07, 2004

The EU Descends

Samizdata brings to my attention the scandalous treatment of reporter Hans-Martin Tillack who has been nosing around the EU digging up corruption in the EuroStat scandal and was branching out to wider issues of EU corruption. He was arrested grilled for 10 hours without his lawyer and had five years worth of notes seized.

The actual corrupt politicians exposed in the EuroStat scandal, which diverted millions in government funds, have not been treated as harshly. The EU, just as much as the US, depends on upholding the rule of law to maintain its privileged position in the world. Is that going by the wayside as a corrupt elite does whatever it takes to protect itself from exposure?

Posted by TMLutas at 12:56 PM

May 06, 2004

Is France Becoming a Failed State?

If you have laws and a legal system which can be ignored with impunity, your government really isn't in control of its territory and you have taken at least a few steps down the road to becoming a failed state. While the end result is a Somalia, that isn't necessarily where things start. The idea that if you are a jew in France and you cannot expect the same rights and privileges normal for a French citizen, that people can hurl stones at the school buses your children ride on, that they can assault you, even murder you, this seems to be a growing reality.

Now this is horrible for French jews but not just for French jews. What if you're a foreign investor, a non-jewish, non-muslim minority, what if you don't live there but you want to do business, to visit, to fly through, are you safe today in France? Will you be safe tomorrow? Can France safely abandon the principle of the rule of law just because it is at the core of Europe? I don't think so, but I'm increasingly not sure what France's elite thinks on the subject.

Posted by TMLutas at 12:49 PM

Good DOJ News on Torture Investigation

It looks like CIA employees and private contractors will not be falling in any jurisdictional cracks as the DOJ opens an investigation into their culpability regarding torture in Iraq. Whatever loopholes have existed in the past, it looks like the US government is starting to get its act together on the issue.

Posted by TMLutas at 12:41 PM

May 05, 2004

Closing the Contractor Loophole

Apparently the US Congress isn't always asleep at the switch. Following some truly nasty problems with jurisdiction over criminals who were serving as military contractors under local immunity accords in foreign military operations, they passed the Military Extraterritorial Jurisdiction Act of 2000 which allows for the prosecution of people who were, until then, in a judicial no man's land.

From what I understand, this legislation is a perfect fit to try the contractors involved in the Abu Ghraib prison torture scandal.

HT: Intel Dump

Posted by TMLutas at 08:48 AM

May 04, 2004

Leftist Telephone

The old children's game of telephone is a silly exercise where a person said one thing to a neighbor and it was repeated down a line of children and the last one said the phrase out loud. The phrase had usually morphed into incomprehensibility. A game of telephone usually had more than one intermediary.

Mark A.R. Kleinman asks Is "UNSCAM" a scam?, taking as his source Joshua Marshall who says

Let me be clear, I don't think any of this means that these allegations are not true. I figure that most of them are.

The truth is that KPMG is doing the legwork on this investigation, not "Ahmed Chalabi and one of his trained seals" and if KPMG wasn't reporting events internally in substantially the same way as Chalabi is relating things externally, they'd have blown the whistle by now. Chalabi isn't going to pay them, the US is via the CPA and they know the game well enough not to want to get caught up in falsifying evidence for a client. The Arthur Anderson scandal wasn't so long ago.

Posted by TMLutas at 04:00 PM

April 27, 2004

A Problem With Microsoft

I'm taking a small break (after browser crash) from my opus fisking of Sandy Berger's Foreign Affairs piece on the foreign policy of the next Democrat President and going through my mail read an XPNews item about Service Pack 2.

Some users are reporting problems with Norton anti-virus after installing SP2 (specifically, that NAV 2004 will no longer update its virus definitions). Other third-party programs that have been reported to have problems with SP2 include StyleXP, AOL and WinFax. Updated versions of these programs have been or will most likely be patched to work with the service pack after its final release.

This is where the government's failure to prosecute Microsoft for its crimes really hits me. You see every single one of these programs and thousands like them are written by Microsoft customers (using their development kits which must be paid for) on the promise that there will be a certain level of interoperability provided and that certain things will stay stable between versions. Yet Microsoft has admitted in court (DR-DOS case for example) and in the press that it has purposefully changed its software products so that its competitors will lose business because their current versions of software will no longer work properly.

So for anybody, like me, who has something of a sense of computer history whenever I see a paragraph like the above, I end up going through the computer equivalent of kremlinology. Are these programs strategic competitors of Microsoft? Is MS doing this on purpose to set the stage for the introduction of a competing product? What should I tell my clients?

Now the highest probability is that it's all innocent but Microsoft has employed people who purposefully and illegally break compatibility and they have never been dealt with by the justice system. You just don't know and will never know until some prosecutor gets an appropriate budget to look into this mess.

Posted by TMLutas at 09:39 AM

April 20, 2004

The Return of John Doe #2?

One of the important things about the justice system in a rule of law state is not only was justice served (did we get the right bad guy) but was everything done properly and according to the rules. Now new evidence is reopening ugly wounds. Did the Clinton Administration screw up the OKC bombing prosecution? It's pretty clear that justice was served, that they got the right guy. But did they neaten things up too much in order not to confuse the jury? Are there other conspirators out there who, essentially have gotten away with it?

There is a cottage industry of tinfoil hat types that thrives on this sort of ambiguity. They always cast doubt that the official story is the real story and sow suspicion and distrust of the government. It's starting to look like they've got a live one this time.

Posted by TMLutas at 02:49 PM

March 18, 2004

HR 3920: Wimps!

Judicial activism is a major bane to our society. Whether you are on the left or on the right, having a black robe legislate from the bench his pet theories instead of interpreting the law is just wrong. Now HR 3920 attempts to tackle this but as written it's obvious it won't work.

But there are other issues. As I wrote before, purposeful violation of the law should be an impeachable offense. During the impeachment and trial process, the reasoning of the legislatures debating removal would certainly provide a clear record of what the issues are and what the Congress intended.

This clears the problem that Prof. Volokh brings up about the same justices simply finding the same way in subsequent cases. You do that more than once and I think it'll guarantee you get bounced off the bench. Sure, you can then join Alcee Hastings in Congress but that's where you should have been in the first place if you have a passion for legislating.

Professor Bainbridge believes it's a shot across the bow meant to send a message to the courts to knock it off or something with teeth will come back next year. I don't much buy into that. We've gone well beyond shot across the bow territory. The question is whether the Congress is willing to go beyond just annulling to impeach justices who waste everybody's time with these horrible cases.

Posted by TMLutas at 01:24 PM

March 14, 2004

Letter to the Paper IX

Over at Tacitus.org Trickster talks about the election effect of terrorists trying to time their attacks to move the electorate in ways that they wish. The comments section, by the time I got to it was long and involved and had a lot of discussion over whether the War on Terror was truly better conceived as a war or as an intelligence/law enforcement operation. On that subject, I wrote a response:

Moving things back to the war/law enforcement portion of the discussion, I suggest that both sides have largely missed the boat on what it means to adopt different models. At the first screening, military and law enforcement models classically involved different personnel called armed forces and police respectively. In a terror war, such distinctions largely become meaningless because neither force has enough people by itself to take care of the job properly. Anybody who doesn't integrate and use both forces is criminally lax in addressing the threat using either model.

An integrated, full on law enforcement response would have a suspension of the posse comitatus laws with regards to terrorism and placing the military under the rubrics and rules of the law enforcement world. A military response would militarize law enforcement and loosen their restrictions and suspect protections, largely after arrest. Both would end up having the full force of the State's coercive powers aimed at an unusual threat that does not fit into normal categories.

So do terrorists gain the right to confront their accusers when their accusers are deep cover intel agents still active inside their organization? Yes for law enforcement, no for military models.

If a terrorist is caught and tried, does Miranda apply or can interrogation proceed without counsel? Yes Miranda applies for law enforcement, no for military models.

If four terrorist are driving down the road and you can kill them all with a missile off a UCAV but can't capture them do you hold off firing the missile? Yes for law enforcement, no for military models.

These and many other use cases change behavior depending on the model the government has chosen. So when Kerry stands up and says he views this as law enforcement he's saying intelligence should have further restrictions put on it that would eviscerate humint, all interrogations at Gitmo should have lawyers present, and those terrorists we blew off the face of the earth in Yemen? Well that was a crime and there should be prosecutions for wrongful death.

To say otherwise (that law enforcement does not require these changes) is to say that secret evidence should become admissible in your civilian criminal trial and you no longer have a right to counsel when interrogated by the police after arrest. Avoiding such changes also means that JAG officers become part of the fire loop in very unsatisfactory ways. I believe we lost two occasions to have OBL meet his maker for this very reason during operations in Afghanistan.

Civil libertarians should be scared stiff about the idea of having a winning effort against terrorists that is not a war. Instead of having erosion in specific areas regarding terrorist acts, you'd have a generalized erosion of civil liberties across the board.

Posted by TMLutas at 10:41 AM

March 13, 2004

Right on Law, Wrong on Policy

Steven Den Beste just put up a conventional analysis of the relevant legal issues facing California's courts on the upcoming gay marriage cases.

We deeply disagree on policy (and I won't go over that again) but he's got it mostly right on the legal issue. I'm much more pessimistic about the California courts though. This should have been put down on straightforward legal grounds by now and it hasn't. It is quite possible that there will be an outbreak of penumbras and tortured legal reasoning that will lead to California being unable to keep anything illegal. As a libertarian, that theoretically pleases me. As a practical man, I'm horrified at the idea that courts are likely to start running willy nilly through the legal code throwing out random chunks without any serious consideration as to the political compromises that led to the current legal balance.

Unfortunately, I think that Bill Quick is likely going to be right on at least some of the State Court majorities and though SDB's legal reasoning is sound, it doesn't much matter when you have a black robed legislature.

Posted by TMLutas at 11:23 PM

March 09, 2004

Martha Stewart & Saddam Hussein

Martha Stewart and Saddam Hussein are usually examined in two different worlds. But there are a few relevant similarities that we should take into account. She's the queen of domesticity who was nailed for lying about an illegal stock transaction that she was never convicted of making. Saddam Hussein was the dictator of Iraq who was nailed for not complying with UNSC 1441 and lying about the stocks of WMD that nobody has found.

So, a simple question comes to my mind. How many of you out there are comfortable with only one or the other being taken down? And why, if both of them have their underlying offenses currently unproven, do they deserve differential treatment in your mind?


Posted by TMLutas at 02:50 PM

March 07, 2004

Martha Stewart

A simple reminder to all those right wing commentators who are bemoaning the fact that Martha Stewart was not convicted on the underlying stock trade count but only on the 'lying' charges (obstruction et al). Al Capone was sent to prison on a tax count and Alger Hiss was convicted only of perjury, never of spying. There is a long and distinguished legal history of people 'getting away' with the crime but not the coverup. Whatever your conclusions on Martha Stewart, the mere fact that she was only convicted of lying about a crime she was not convicted of does not exonerate her in any way. You might be right that there is an injustice but you have to provide something more for your position to be reasonable.

Posted by TMLutas at 10:37 PM

March 05, 2004

Electing Judges

I love talking to acculturated Romanians about politics. They show surprise at so many things that it really brings to life the exceptional nature of the US government. I was speaking to a romanian ethnic political science graduate student. She was hearing all sorts of high level poli-sci terms but nobody had ever sat her down and given her the basics of how things worked and she was missing a lot of the subtext of lectures. So while I was occupied in fixing the DSL line that, among other things, lets her surf the web, we talked US political basics. She absolutely couldn't understand how the US judicial branch survives with elected judges.

People don't understand the law, she maintained, how can they choose good judges? The reason, I replied, dated back to colonial days where certain judges simply made stuff up as they went along. After the revolution, the newly independent americans decided that they would never have that happen again and would elect judges in order to be able to have an ultimate check on a judiciary run amok. On the way back home, I recalled that a great many people opined that the old danger of a judiciary that just made stuff up was long gone with the british and it was time to do away with an elected judiciary.

They all swore it would never happen again.

Look around and tell me with a straight face that you can say that today. Whether it's the US Supreme Court permitting gross violations of freedom of speech in politics, pro-gay rights judges ignoring the law and permitting gay marriages to go forward in San Francisco by refusing to issue an injunction, or any of a dozen abuses that have angered both left and right, it's becoming clear that the time is come that we start electing more, rather than less judges.

Posted by TMLutas at 07:12 PM

February 26, 2004

Reasonable Data Center Searches I

I've been bothered by the item I wrote about yesterday on a data center search that removed data wholesale and impacted an unknown (but probably large) number of individuals and businesses not covered by the search warrant. This is exactly the sort of thing that outraged the colonists and created the fourth amendment in the first place.

So how should a data center search be conducted?

If somebody gets shot on the sidewalk in front of your business, you're not going to be doing much business until they clear the police tape away. That's not an unreasonable accommodation to the needs of law enforcement. An unreasonable accommodation would be to have them haul off the front wall of your store for blood spatter analysis instead of taking samples and photographs.

I think, for the US at least, a reasonable accommodation might be for large data centers to have a requirement to keep law enforcement apprised of what hardware they are using with what storage capacities. The information could be held by a judge and only opened up to the police as part of mandatory prep for a search. Thus the information provided can't be used for competitive business purposes, just in aiding a search to minimize disruption to innocent parties.

The police (local, state, federal) then have an obligation to come on site with high speed data copying gear of requisite capacity, a server set to respond to all relevant IPs and ports with relevant applications that explain the situation and the rights of innocent data holders and how they can monitor the situation for privacy violations. If there is a need to sieze physical drives, leave the data center (if they are not the actual target of the investigation) with some adequate loaners that they need to replace inside a reasonable period.

If you set things up well enough, the service outage shouldn't be anything more than a particularly ill-timed back hoe taking out a fiber optic cluster, something annoying but not particularly business threatening. Knowing what web site to visit, judge to call, and address to letter write or visit, means that people are apprised of their rights and they can address their worries in a timely fashion.

Any data taken should be held by a judge and turned over on the basis of meeting the criteria of the original search warrant and further data of other accounts should only be investigated if a separate search warrant is justified in the traditional way and the person to be searched is notified.

With the original case resolved, all irrelevant data not used in the case should be destroyed or given back to their original owners as if it were the fruit of an illegal search but without the civil suit rights that would attend an actual illegal search.

Posted by TMLutas at 08:59 AM

February 22, 2004

Rule of Law Warning Light II

It looks like California is belatedly realizing that a horrible precedent is being set in San Francisco and will be asking that the city obey the law. One of the things that really sends a shiver down my spine is the idea of introducing "fait accompli" as a principle of law in the US.

The conservative group that lost its bid for a restraining order on Friday had argued that the weddings harmed the 61 percent of California voters who in 2000 supported Proposition 22, a ballot initiative that said the state would recognize only marriage between a man and a woman.

Judge Quidachay suggested that the rights of the thousands of gay and lesbian couples who have traded marriage vows in San Francisco over the past nine days appeared to carry more weight at this point.

Try and take that reasoning and apply it to water rights in the Klamath basin and elsewhere across the West for example and you will see how destructive things can get and rather quickly.

Posted by TMLutas at 09:15 AM

February 20, 2004

Drawing the Line in War

There's been a great deal of bloviating over phantom rights violations in this War on Terror. Then again, cops do still cross the line. There is no requirement in the United States to have identification papers. If you're not engaged in an activity requiring a license, you don't have to have a license with you.

Dudly Hiibel is pushing this principle all the way to the Supreme Court. He was arrested in 2000 simply for not having an ID and ended up being fined $250.

A police officer had the right to stop him. There was a report that he had hit his daughter. A police officer had the right to temporarily confiscate his knife while he was being questioned for safety reasons. He even has the right to temporarily take events down to the station to sort things out in a controlled environment. But he didn't have the right to demand identification papers in order to do a background check absent any evidence of actual criminality.

Given that the police didn't even try to talk to his daughter until she got hysterical at seeing her father cuffed and hauled away, this is no sort of domestic abuse investigation. The fishing style question of "how did you get home yesterday" sounds suspiciously like there's a back story to this episode.

There's a video of the stop along with some audio so it's not just a case of conflicting verbal testimony. Clearly the arrest is over the line and it would still be over the line today. Martial law has not been declared. Rights have not been suspended. If we're even close to the level of threat requiring such emergency measures, no proper legal actions have been taken to invoke such powers (and thus also invoke the accountability for their use at the next election). I'd be as disturbed about the case if it happened post 9/11 as I am about it happening today.

Hopefully, we're going to see a 9-0 decision in favor of Mr. Hiibel.

HT: Slashdot

Posted by TMLutas at 06:57 AM

February 19, 2004

Gay Marriage Practicalities II

Stanley Kurtz has a sad commentary on the legal somersaults that gay marriage advocates are going through to get their policy preferences installed by hook or by crook. The judge refused to issue an injunction because of an incredibly small issue, the use of a semicolon. If the word or had been substituted, he would have permitted it, supposedly, but the judge did not permit the request to be rewritten and refiled even though it is patently obvious that the mayor's actions are illegal.

Kurtz' point is that judges are starting to not even bother to pretend that they are anything but political actors in their pet social reform causes. For people on the other side, this makes the act of going by the rules and peacefully submitting to the rule of law a bitter joke. Unfortunately, it's going to do tremendous damage to the system because you can't continually frustrate a majority. Eventually there will be an amendment that will neuter the judges and it will likely be ugly because the judges are smart and will work around anything less than a mandatory legislative procedure to impeach at the slightest provocation.

If privileges and immunities can be neutered, let's not kid ourselves here, a marriage amendment can be too. The key is judges acting as legislators.

Posted by TMLutas at 07:40 PM

September 02, 2003

Dust off the 3rd amendment

Out of all the amendments in the US Bill of Rights, the 3rd amendment has been the most successful. It's clear, precise, and for two centuries everybody understood what it meant. Only New York arguably managed to screw it up.

So why remark on this success story? It's because the dual protections it embodies of privacy from the eyes of government agents and a protection from the demands of supporting same are starting to be challenged. The government agent is no longer the loutish soldier who might rape your daughter and steal your horses but rather a tiny little microchip who will spy on your behavior while driving and robs a bit of gasoline in its upkeep.

This sort of thing, taken to much greater heights, was labeled one of the "Intolerable Acts" that caused the American Revolution. Now that it's starting to make a very modern comeback, we all need to nip this in the bud.

Posted by TMLutas at 09:54 AM

July 19, 2003

SCO, the boil on the rear end of the IT industry

Do you remember the annoying nerdy kid in high school? Now imagine him twice as annoying, dumb to boot, and with a plan to take over the world via lawsuit. That is today's SCO (Santa Cruz Operation).

SCO owns the rights to Sys V UNIX (at least probably) and claims that IBM (whose IP rights protection unit may outnumber SCO's entire roster of employees) illegally transferred technology licensed from SCO (really it's predecessor in owning the IP) into Linux, thus violating the terms of its license to make and distribute AIX, IBM's Sys V derivative UNIX.

Since IBM is laughing in their face over these violation of contract claims, SCO has announced it's pulled IBM's AIX license which means a good chunk of world industry does not have a valid license to run their mission critical systems if SCO is to be believed. Not many people believe.

So far, we have a very high stakes, garden variety contract dispute but for SCO it's all about the FUD. They have, at various times, referred to copyright, trade secret, and patent violations in Linux and have threatened to sue anybody who uses the stuff, though so far it's all legal threats and no papers have been filed against Linux per se.

Now, SCO proposes to create a Linux licensing program that essentially asserts that they won't sue anybody who pays them. In any country with a reasonable "loser pays" judicial rule, they would get few takers but they are aiming at the US which lacks such a rule and it's very easy to be bankrupt by frivolous legal action.

the Unix world has seen this all before with the USL v. BSD lawsuit that led to trivial changes in BSD (and in exchange for the USL violations of BSD copyright to be forgiven), the absolute stop of BSD's market momentum and the decision of a Finnish programmer to avoid lawyers and write a UN*X work alike instead called Linux. Oh well, it worked for awhile.

Back to SCO, it has to know that the practical effect of this renaissance of vicious UNIX litigation is to make none of the players win and the only winner be Microsoft. After all, that's what happened the first time around in the incredibly complex tale of the UNIX wars. It is unlikely that a judge will order a significant chunk of the biggest businesses on the planet to destroy or return all copies of AIX and thus take down their mission critical systems that depend on it. Given that SCO has not actually released the code that is allegedly infringing, it's very difficult to figure out whether the offending code had an AT&T pedigree or a BSD one. So what's SCO's game? It likely wants to be such a big annoyance that somebody buys them just to shut down the lawsuit machine.

Posted by TMLutas at 06:09 PM