Monthly Archives: December 2008

So Much for Safe Browsing (Temporarily)

Via Ed Felton, news of a medium-sized bombshell in Researchers Show How to Forge Site Certificates:

Today at the Chaos Computing Congress, a group of researchers (Alex Sotirov, Marc Stevens, Jake Appelbaum, Arjen Lenstra, Benne de Weger, and David Molnar) announced that they have found a way to forge website certificates that will be accepted as valid by most browsers. This means that they can successfully impersonate any website, even for secure connections.

This is a big deal. But as Ed explains, it is based on an making worse a known weakness in the “MD5 with RSA” hashing algorithm. It can be fixed by having Equifax, which uses this now shown-to-be-insecure hast, replace the hash with something better. And having Equifax (and anyone else using it) revoking all existing certs based on this now vulnerable hash. (Which will cause a new wave of people ignoring security warnings…)

And, as Ed wisely notes,

… this is a sobering reminder that the certification process that underlies web site authentication —- a mechanism we all rely upon daily —- is far from bulletproof.

Posted in Cryptography, Internet | 2 Comments

Sign of the Times (Cobb Salad Edition)

It's sort of a family joke, but every so often — not that often, but every so often, maybe a few times a year — I get a hankering for a Cobb Salad. For the past decade or more, when that happens I've dragged my wife, or sometimes the whole family, off to South Miami's Beverly Hills Cafe. I don't know how long it's been there, but 15 years at least. It wasn't expensive, and if wasn't super-cheap either, well they made up for it with big portions, fast and attentive service, and very nice hot rolls while you waited. And it was usually busy. Sometimes you had to wait. I even forgave them for expanding into the space formerly occupied by Joe's News, which, pre-internet was the best place to get out-of-town and international newspapers and magazines.

I got that Cobb Salad feeling today, and I took myself off to South Miami, just on the other side of US 1 from my neighborhood, but when I got to the Beverly Hills Cafe, so long a feature of Sunset Ave, there was a sign on the door that they're closed due to the recession. I don't know if it's the whole seven-location chain, or just the one near me, but either way, it was a surprise.

Then again, maybe it shouldn't have been a surprise. Most times over the years when I went there for lunch on a weekday, the place seemed full of local business types — especially real estate and banking folks. I guess they don't eat out so much these days.

(The parking lot behind the restaurant that used to have a guard and charge by the hour seems to have been taken over by the City of South Miami, and turned into city metered parking, which I suppose is the only tiny silver lining in the story. But they meter even on Sundays.)

Next best Cobb Salad that I know of in the area is at the Coral Gables Diner, in downtown Coral Gables, but it's further away and harder to park, the salad is smaller, not as nice, significantly more expensive ($15!?!), and their honey mustard dressing is lame.

Not to mention a lot of people must have lost their jobs, as the Beverly Hills was pretty big.

Posted in Miami | 8 Comments


I am grading. This makes me grumpy.

Posted in Law School | Comments Off on Grrrrrrrrrrrrrr

First Blog Post In History to Equate the Fed with Hello Kitty?

I think it's scary when this post (“Easy Credit”) from != illustrated with graphics such as this one …

… makes me think me think of a post on the 'future of fed policy' from Krugman, illustrated with this one…


Posted in Econ & Money: Mortgage Mess | 2 Comments

Pardon Update (Updated)

Seems like I may have wasted my time writing that pardon post (Bush “Revokes” A Pardon (When Do Pardons Vest?))… The New York Times has a statement from the White House on the pardon revocation:

Based on information that has subsequently come to light, the president has directed the pardon attorney not to execute and deliver a grant of clemency to Mr. Toussie. The pardon attorney has not provided a recommendation on Mr. Toussie’s case because it was filed less than five years from completion of his sentence. The president believes that the pardon attorney should have an opportunity to review this case before a decision on clemency is made.

If we can believe what the Bush administration says (can we?) this suggests pretty strongly that we were at what I called “step one” — nothing had been signed or sealed. In which case, legally, it's a non-issue.

Update (12/26): Brian Kalt argues, with some reason, that maybe I gave up too easy. The key fact — as I suggested half-heartedly above, but couldn't quite bring myself to believe — is that the White House may have been misleading us about whether a formal pardon was actually executed. Here's part of what Prof. Kalt writes,

The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn't purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”

Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn't hold up.

Could this be another example of what Brad DeLong says: “The Bush Administration: Worse than You Can Imagine Even Though You Know It Is Worse than You Can Imagine”?

Posted in Law: Constitutional Law | 6 Comments

Bush “Revokes” A Pardon (When Do Pardons Vest?)

Extraordinary (in the sense of rare and nearly unprecedented) piece of news today: Bush withdraws 1 of 19 pardons he issued Tuesday.

To a Constitutional lawyer, the interesting question is whether it is even possible to revoke a pardon once it is given. It is long-established that in the eyes of the law, a full pardon makes it as if the offense — not just the conviction — never happened. The Supreme Court said 125 years ago that “the pardon not merely releases the offender from the punishment prescribed for the offence, but that it obliterates in legal contemplation the offence itself.” Carlisle v. United States, 83 U.S. (16 Wall.) 147, 151 (1873). [Note, however, that some courts hold, controversially, that a pardon does not preclude the imposition of attorney discipline based on the underlying conduct, because a pardon “cannot work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen.”]

So, pretty clearly, once a full pardon is signed, sealed, delivered, and accepted by the recipient, that's it: you can't take it back. (So called-conditional pardons, which may have a condition precedent are a different animal, but that's not what we're talking about here.)

The AP's story is very scanty on the legally significant facts, saying only that Bush “revoked” a pardon, and then discussing the reasons for the sudden turnaround. That could mean almost anything.

If Bush had not formally signed a pardon document, then there's no legal issue: what's been revoked is an intention to pardon, and the public announcement doesn't create any legal obligation to actually do so. The cases are clear on that point.

But if the President actually signed a pardon, then changes his mind, all of a sudden we're in interesting territory, reminiscent of Marbury v. Madison but involving a completely contrary opinion by Chief Justice Marshall.

Logically there are four steps in a regular (as opposed either a general or conditional) pardon:

1. The President makes a decision.

2. The President signs a pardon, and (perhaps) it is sealed to show it's official.

3. The pardon is delivered to the beneficiary.

4. The beneficiary accepts it.

Everyone agrees that after step four under US law the pardon is unassailable.

It seems to me also that there's basically no debate that by then end of step three, the pardon is final and cannot be revoked, even if the beneficiary hasn't yet decided whether to accept it or not. And, as noted above, after step one, there's nothing to revoke except a legally meaningless promise.

The interesting case — which may or may not exist here, we don't yet know — is whether a pardon can be revoked after its signed (and sealed), but before it's delivered. It doesn't happen very often, but it's not unheard of.

I'd argue that the answer to that question ought to be no — once a pardon is signed and sealed, that's it, the thing is done forever unless the recipient of the pardon rejects it. Here's why: First, persons can be pardoned in absentia, by general proclamation, or even posthumously, in situations where delivery is impossible, or at least unnecessary. (On the other hand, as discussed further below, no one is obligated to accept a pardon; some might see it as an admission of guilt, or in the case of conditional pardons might find the conditions unpalatable.) Second, it would be bad to create a now-you-see-it-now-you-don't pardon that some future President Blagojevich could sign but not deliver, tricking someone into acts of reliance to their detriment.

There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall's in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official's commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President's Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:

President Andrew Johnson's offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy's agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. … Indeed, President George W. Bush's administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.

So, depending on the facts and especially how advanced the paperwork was, Robert Toussie of Brooklyn, N.Y. may have an interesting case, or he may have nothing.

Incidentally, according to Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. Rev. 947, 979 n.105 (2003), Bush decided to let Clinton's pardon of Marc Rich go through, despite doubts as to whether the paperwork was final: “President Bush considered the possibility of revoking this pardon but decided against it “to protect that privilege, not only for me but for future presidents, as well.” (citing John Riley, Bush Won't Revoke Pardon of Financier, Newsday, at A14 (Jan. 30, 2001)).

It's interesting that Bush's concern eight years ago “to protect [the pardon] privilege, not only for me but for future presidents” seems to have attenuated. What would Cheney say?

Posted in Law: Constitutional Law | 5 Comments