Discourse.net

More on the Cheney/Gonzales Indictment

2008-11-19T09:24:39-05:00

Political Animal says the indictment is a result of fairly crass local politics, and thus suggests it isn’t serious stuff.

But you can decide for yourself, as I’ve just been sent a copy of the indictment. I haven’t had a chance to read it myself; comments very welcome.

Cheney and Gonzales Indicted...by Texas State Court

2008-11-18T21:48:19-05:00

It seems that a South Texas grand jury has indicted Messers Cheney and Gonzales.

CNN, Cheney, Gonzales indicted for alleged prisoner abuse: Vice President Dick Cheney and former Attorney General Alberto Gonzales have been indicted on separate charges related to alleged prisoner abuse in federal detention centers, Willacy County, Texas, District Attorney Juan Angel Guerra told CNN Tuesday.

The indictment stems from Cheney’s investment in the Vanguard Group — an investment management company that reportedly has interests in the prison companies in charge of the detention centers, according to The Associated Press. It also charges Gonzales halted an investigation into abuse at the detention centers while he was attorney general.

You might think there are some federalism issues here. And there are. You might think there are some qualified/absolute immunity issues here, and there are. (Cf. In re Neagle, 135 U.S. 1 (1890) (creating federal officer immunity defense.)) But what you might not know is that there’s a federal removal statute that deals with state criminal prosecutions, 28 U.S.C. § 1442(a)(1):

§ 1442. Federal officers or agencies sued or prosecuted

(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

So step one will be a removal to the federal District Court.

Incidentally, the Supreme Court approved the constitutionality of criminal removal jurisdiction in Tennessee v. Davis, 100 U.S. 257 (1880), and discussed the modern statute in Mesa v. California, 489 U.S. 121 (1989), where the court concluded that “Federal officer removal under 28 U.S.C. § 1442(a) must be predicated upon averment of a federal defense.” (In other words, the defendant must be prepared to argue that acts underlying the charges were performed pursuant to his federal authority.)

Note that if the case is removed, state law continues to govern the substantive rules pertaining to the offense — but federal law supplies the procedural rules.

Mapstats Dead Again?

2008-11-18T13:05:56-05:00

Once again, I have to ask, Is Mapstats Dead?

The widget in the right column hasn’t updated in over a week. Do I take it down again?

Tales From the Bile Machine

2008-11-18T11:25:26-05:00

Milwaukee Magazine : Feature Story : Secrets of Talk Radio

This is why it might actually be a good idea to revive the Fairness Doctrine.

The right-wing is hyperventillating about the prospect of the Fairness Doctrine’s revival because (1) it would be very effective at curbing the main source of right-wing ability to whip up troops into (often misinformed) frenzy; (2) it’s what they would do if the positions were reversed.

But there’s no chance the Obama administration will do it. None. I wish I thought that their decision was due to the Constitutional dubiousness of the FD. But in fact, it’s due to a vision of how to govern that amounts to a high-stakes gamble: love your enemies and you will tame them. I don’t see that working on Rush Limbaugh, but then I didn’t just get elected President either…

Adobe Air: That's Not a License, It's a Straitjacket

2008-11-16T11:43:12-05:00

The Adobe AIR license agreement contains a number of onerous and non-standard terms.

I was going to give MiniTask a spin (”a light-weight task manager with a surprising number of features”), but having read these I don’t think I’ll bother.

3.1 Adobe Runtime Restrictions. You will not use any Adobe Runtime on any non-PC device or with any embedded or device version of any operating system. For the avoidance of doubt, and by example only, you may not use an Adobe Runtime on any (a) mobile device, set top box (STB), handheld, phone, web pad, tablet and Tablet PC (other than with Windows XP Tablet PC Edition and its successors), game console, TV, DVD player, media center (other than with Windows XP Media Center Edition and its successors), electronic billboard or other digital signage, Internet appliance or other Internet-connected device, PDA, medical device, ATM, telematic device, gaming machine, home automation system, kiosk, remote control device, or any other consumer electronics device, (b) operator-based mobile, cable, satellite, or television system or (c) other closed system device. For information on licensing Adobe Runtimes for use on such systems please visit http://www.adobe.com/go/licensing .
3.2 Adobe Reader Restrictions. Adobe Reader is licensed and distributed by Adobe for viewing, distributing and sharing PDF files.
3.2.1 Conversion Restrictions. You will not integrate or use Adobe Reader with any other software, plug-in or enhancement that uses or relies upon Adobe Reader when converting or transforming PDF files into a different format (e.g., a PDF file into a TIFF, JPEG, or SVG file).
3.2.2 Plug-in Restrictions. You will not integrate or use Adobe Reader with any plug-in software not developed in accordance with the Adobe Integration Key License Agreement.
3.2.3 Disabled Features. Adobe Reader may contain features or functionalities that are hidden or appear disabled or “grayed out” (the “Disabled Features”). Disabled Features will activate only when opening a PDF document that was created using enabling technology available only from Adobe. You will not access, or attempt to access, any Disabled Features other than through the use of such enabling technologies, nor will you rely on Adobe Reader to create a feature substantially similar to any Disabled Feature or otherwise circumvent the technology that controls activation of any such feature. For more information on disabled features, please refer to http://www.adobe.com/go/readerextensions .

…

6.1 Use of PDF Files. When you use the Software to open a PDF file that has been enabled to display ads through registration with the Ads for Adobe PDF service, your computer may connect to a website operated by Adobe, an advertiser, or other third party. Your Internet Protocol (IP) address is sent when this happens. The party hosting the site may use technology to send (or “serve”) advertising or other electronic content that appears in or near the opened file. The website operator may also use JavaScript, web beacons (also known as action tags or single-pixel gifs), and other technologies to increase and measure the effectiveness of advertisements and to personalize advertising content. Your communication with Adobe websites is governed by the Adobe Online Privacy Policy found at http://www.adobe.com/go/privacy . Adobe may not have access to or control over features that a third party may use, and the information practices of third party websites are not covered by the Adobe Online Privacy Policy.

…

8.3 Acknowledgement. You agree that (a) a digital certificate may have been revoked prior to the time of verification, making the digital signature or certificate appear valid when in fact it is not, (b) the security or integrity of a digital certificate may be compromised due to an act or omission by the signer of the document, the applicable Certificate Authority, or any other third party and (c) a certificate may be a self-signed certificate not provided by a Certificate Authority. YOU ARE SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO RELY ON A CERTIFICATE. UNLESS A SEPARATE WRITTEN WARRANTY IS PROVIDED TO YOU BY A CERTIFICATE AUTHORITY, YOU USE DIGITAL CERTIFICATES AT YOUR SOLE RISK.

8.4 Third Party Beneficiaries. You agree that any Certificate Authority you rely upon is a third party beneficiary of this agreement and shall have the right to enforce this agreement in its own name as if it were Adobe.

8.5 Indemnity. You agree to hold Adobe and any applicable Certificate Authority (except as expressly provided in its terms and conditions) harmless from any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorneys fees) arising out of or relating to any use of, or reliance on, any service of such authority, including, without limitation (a) reliance on an expired or revoked certificate, (b) improper verification of a certificate, (c) use of a certificate other than as permitted by any applicable terms and conditions, this agreement or applicable law; (d) failure to exercise reasonable judgment under the circumstances in relying on issuer services or certificates or (e) failure to perform any of the obligations as required in the terms and conditions related to the services.

I was particularly struck by the attempts to block use on anything other than PC, the attempt to block interoperability with other software, and the claim that a certificate offered by a CA is a worthless piece of paper (something I was predicting and complaining about way back in 1996, see The Essential Role of Trusted Third Parties in Electronic Commerce, 75 Ore. L. Rev. 49 (1996).

[Note: headline corrected, thanks to Tom Parmenter]

Why Don't We Bail Out Iceland?

2008-11-16T10:22:22-05:00

Here’s a serious question: Iceland has long been a strong ally and a NATO member, despite having no armed forces. As we all know, the Icelandic economy is suffering from a virulent case toxic shock.

Iceland’s economy is not, by US standards, particularly big, clocking in at about US $12bn GDP. A bailout would, I presume, take only a fraction of that? And their troubles are really not their fault:

So how did Iceland get in so much trouble? That’s the odd part of the story: it isn’t because its banks gambled on the worthless subprime securities that helped undo Bear Stearns and so many others. Iceland’s banks prudently avoided the subprime market, even as they embarked on a lending boom at home and expanded abroad. What got Iceland in trouble was something more subtle: its banks got their money primarily from international investors, making the Icelandic miracle heavily dependent on foreign capital.

In normal times, this might not have mattered, given the country’s solid economic fundamentals. But these aren’t normal times. The subprime crisis, in which investors realized that they had greatly underestimated the risks of lending to people with bad credit, has spawned a wider credit crunch: investors now suspect disaster behind every door, and even seemingly solid borrowers find credit much harder to come by. The subprime crisis was an earthquake that caused a tsunami: the quake has done plenty of damage on its own, but the tsunami looks set to do even more.

Iceland has been swamped by that tsunami because it trusted in the availability of global credit in time for that credit to evaporate.

So why not bail them out? There is of course no legal duty to do so; I’ll even stipulate that there is no moral duty to do so. It’s just a way, quite cheap in the grand scheme of things, to make friends abroad and mitigate a global crisis. The Icelandic people would, I would think, be grateful for a generation. And other people around the world might see in this willingness to help out a sign of hope, which might help combat some the psychological aspects of the current crisis.

So, how much would we have to make available as a special loan facility to bail out Iceland? Any arguments against this other than it might invite other governments to ask for bailouts too and we can’t afford them all?

Obama FCC Transition Team

2008-11-15T14:59:06-05:00

Susan Crawford isn’t here in New Haven because she has just gotten a new and better gig on the Obama FCC transisiton team:

Science, Tech, Space and Arts Team Leads | Change.gov: The Obama-Biden Transition Team

FCC Review Team Leads

Susan Crawford is a Professor of Law at the University of Michigan, teaching communications law and internet law. She was a partner with Wilmer, Cutler & Pickering (now WilmerHale) until the end of 2002, when she left to become a legal academic. Ms Crawford recently ended her term as a member of the Board of Directors of ICANN.

Ken Werbach is an Assistant Professor of Legal Studies and Business Ethics at The Wharton School, University of Pennsylvania, and the organizer of the annual Supernova technology conference (http://www.supernova2009.com). His research explores the legal and business dynamics of information and communications technologies. Formerly, he served as Counsel for New Technology Policy at the FCC during the Clinton Administration. He has also edited Release 1.0, a renowned technology newsletter, and founded Supernova Group, a technology analysis and consulting firm.

Both of these are great choices!

May do a little special pleading, friends? Let’s reverse the Brand X decision — odds are this will do more to help net neutrality than any regulations could.

Always Worse than Your Worst Expectations

2008-11-15T08:02:32-05:00

Just when you think you might have plumbed the depths of the abyss that it the Bush Justice Department, no, the Bush Administration, comes this:

More Allegations of Misconduct in Alabama Governor Case.

I might have suspected that a recused official would remain deeply involved in a case, but I would never have suspected illicit communications with a jury.

If recent history is any guide, there must be many more skeletons in the White House closets. The Bush team has worked hard to cover its tracks — see for example it wholesale evasion of the rules requiring the archiving of email — but who knows what else is waiting to be revealed.

Off to New Haven

2008-11-14T10:02:00-05:00

I’m off to New Haven for a conference in honor of the 10th anniversary of the Yale Information Society Project. I was very involved in the early days — I think I spoke at the first three or four conferences, but have been less involved recently.

The folks at the Yale ISP were kind enough to recently to make me an ‘Affiliated Fellow’ of the Yale ISP, so I hope to be involved more in the future.

I like to going to Yale events, as they are both substantive and nostalgic for me (Yale ‘82, Yale Law ‘87)…but I HATE the journey. Flying into New Haven is expensive and usually involves a long layover in Philly followed by a wind-up plane. Flying into Hartford gets you an easy drive…but the two direct planes a day are too early and too late, and why change planes just to drive afterward?

Flying into New York is quickest and cheapest…but then there’s the land portion. CT Limo is so appalling that I vowed never to use it again after last time. And the time before. And the time before that. So this time I’m going to drive.

The trouble with driving is that I get lost. Easily. I was never the most directionally intuitive driver, and I’ve gotten softer from years of being married to a very reliable navigator. I don’t own a GPS, although I’m thinking about it. I’ve asked for one in the rental car as a sort of, well, test drive, to see how I like it. (The other trouble is that I’m landing at 3pm, and will hit the Friday afternoon rush more than likely, but there’s not a lot I can do about that.)

Good Thing I Wasn't Expecting a Government Job

2008-11-13T09:15:15-05:00

NYT, For a Washington Job, Be Prepared to Tell All, reports on the very detailed questionnaire being required of applicants for jobs in the Obama admin. This is one group that will be vetted thoroughly! (Even so, given the numbers, odds are something on someone will slip through the cracks, and by the strange logic of politics, the fact that Team Obama took responsibility for vetting will mean that the press will treat the failure as more significant than if they hadn’t tried so hard. Go figure.)

The NYT article has this arresting graphic, which suggests that bloggers just might have a little trouble getting a policy (as opposed to blogger outreach) job:

The War Is Not Over

2008-11-12T12:48:05-05:00

Cute little video (well, a bit self-serving, but why not), by the pranksters who brought you today’s fake NYT, complete with headline announcing the end of the Iraq war.

New York Times Special Edition Video News Release.

Wish I could get one in Miami. And the web site seems totally slashdotted….

(Speculations as to who is behind it, from Gawker.)

Breaking: Bush Admin Official Apologizes For WMD Lies

2008-11-12T08:31:07-05:00

Rice Apologizes for W.M.D. Scare: 300,000 Troops Never Faced Risk of Instant Obliteration .

I think the apology comes more than a little belatedly, don’t you?

Yes, I know it’s….

UPDATE: And there’s more where that came from.

Rube Goldberg's Spirit Alive and Well in Miami

2008-11-11T09:17:15-05:00

This place really is amazing. This morning’s Herald had this beauty: Balloon birds = lights out,

A run-in between a singing Hannah Montana balloon and a flock of birds knocked out power to a Miami neighborhood Monday.

The incident unfolded about 7:30 a.m. outside Jose De Diego Middle School, 3100 NW Fifth Ave..

Fire officials said the balloon may have scared about 300 birds that roost on power lines near the school, knocking a line loose when the birds fled.

It caused a power outage in a five-block radius for a few hours, and forced the rescheduling of an event at the school with Superintendent Alberto Carvalho and Miami Mayor Manny Diaz.

All the birds survived.

The small pink-and-silver Hannah Montana balloon was the only thing that did not emerge unscathed — though it did greet Miami Fire Rescue personnel with the teen singer’s hit The Best of Both Worlds.

Rube Goldberg would be proud.

Power was out in my neighborhood for most of Saturday afternoon. I wonder if we had a balloon too?

Call Your Senator about Lieberman (UPDATED)

2008-11-10T13:48:18-05:00

Help remind your Democratic Senator that Lieberman should go (or at least pay a very serious price) for his election-season behavior.

Clicking above will take you to a tool that will ask you for your phone number. When you submit, it calls you, plays a recording with suggestions as to you how to frame your conversation, then connects you with your senator’s office. No actual phone dialing is required.

UPDATE: Not sure if this is worth the trouble in light of this news from the HuffPo: Obama Wants Lieberman To Remain In Democratic Caucus.

There is some daylight between “remain in caucus” and “remain unpunished” so I suppose it’s not yet an unmitigated disaster, but it will soon be.

I think this shows two things. First, that Obama will tack heavily to the right on many, most issues outside those few liberal issues he directly campaigned on. Rahm Emanuel may be only the beginning.

Second, I think it shows that the Obama people haven’t learned as much from the Clinton admin as they should — or are the Clinton admin!

Recall that President Clinton’s first controversy was over ‘don’t ask, don’t tell’. He’d said he was going to do something to increase gay rights in the military. Senior brass objected. Clinton backed down. The lesson learned by the Hill was that Clinton had no backbone as he could be buffaloed even by people who had to salute him. And the costs were soon seen as Clinton’s health care and other parts of his legislative package plan went down in flames (although there were substantive reasons for the health care plan to run into trouble, the political reality was that Clinton looked weak).

There’s a similar danger to Obama if the lesson learned from the Lieberman episode on the Hill is that there’s no cost to trashing Obama.

Latest will.i.am Video

2008-11-10T00:00:46-05:00

will.i.am, It’s A New Day:

But not quite ringtone material.