Author Archives: Michael Froomkin

Phil Carter Notes Probable Jurisdiction

Posted on June 18, 2004 by Michael Froomkin

Phil Carter points out that the Patriot Act usefully expands US criminal law jurisdiction to sweep in “crimes committed by or against any U.S. national on lands or facilities designated for use by the United States government”:

Sure enough, Sec. 804 of the USA PATRIOT Act … amends 18 U.S.C. 7, also known as the “special maritime and territorial jurisdiction” statute of federal criminal law, to include U.S. military bases and embassies outside of the U.S. Here's the relevant text of 18 U.S.C. 7

Of course, this is of no great value to parties wishing to file civil law suits, and the odds that a US Attorney is going to start investigating Guantanamo seem pretty low. Prosecutions at Abu Ghrabi are firmly in the hands of the military justice system, and it's too soon to tell whether the military honor reflex or the military cover-up reflex will dominate.

But, as noted on Intel Dump, this amendment has borne fruit in the prosecution of a civilian contractor in Iraq for an assault that lead to the death of a CIA detainee. Update: Washiington Post explains the background to the prosecution.

Posted in Guantanamo, Iraq Atrocities, Law: Criminal Law | 1 Comment

Smash The Ticking Time Bomb!

Posted on June 18, 2004 by Michael Froomkin

By The Power of Stipulation: I Have The Power!: Belle Warring at Crooked Timber's demolition of the TABNY scenario is much more enthusiastic than mine.

I am sick and tired of hearing about that ticking nuclear bomb in Manhattan. You know the one. Why? Because, if you let me put my thumb on the utilitarian scales, I can get you to agree that you have an affirmative moral duty to torture a three-year-old child to death.

I will utilitze my mighty powers of stipulation, thusly: the earth is invaded by a race of super-intelligent, but malevolent beings.

Go read the rest.

Posted in Readings | Comments Off on Smash The Ticking Time Bomb!

Why Brad DeLong is Not a Political Scientist

Posted on June 18, 2004 by Michael Froomkin

Brad DeLong has been doing a very very good line in posts directed at “Republican Grownups”. Although something of an endangered species, recent events prove that they are not in fact mythical beasts.

But Brad's latest, It's Not too Late for the Grownup Republicans demonstrates why, while he's a great economist, he'd be miscast as a political scientist:

It’s not too late for the grownup Republicans to act. There’s
still time for the House and Senate Republican caucuses to go to Bush
and force his and Cheney’s resignations. Then Hastert and Stevens can
decline the job, and the presidential succession passes to Colin
Powell.

This then gets us a president who:

  1. is a Republican.
  2. certainly does not have a smaller chance of winning in November than George W. Bush.
  3. would in all probability be good at the job.

It’s what would have already happened to any political leader in a
parliamentary system. It’s what the grownup Republicans owe the
country. And it may well be to the partisan political advantage of the
Republican Party to close down the current Clown Show as quickly as
possible.

On the one hand, yes, this would be an optimal solution for the nation, and probably for the Republicans (if you believe as I do that they look increasingly doooooooooooomed in the next election…although 'a week is a long time in politics' and the election is not next week).

On the other hand, while Brad's plan is good for the nation, it is so Not Going To Happen.

1. W is not a listening kind of guy. Any grownup who gets an audience with him will get the Wrath of W, not an attentive audience. And the Bush clan remembers its grudges.

2. Even if W goes, and even if Cheney passes up the chance to have the trappings of power as well as its reality, the chances that the hyper-ideological duo of Hastert and Stevens would (a) swallow all their personal ambition and (b) step aside for Traitor Powell (as they must surely see him) is so small we need a new number to describe it.

Of course, Brad knows this, so I suppose he's mostly jesting (and the part that isn't jest is wishful thinking), and by so doing demonstrating what a bind the dwindling band of mostly elderly Republican grownups find themselves in. Their choices are to sit back and do nothing, which is nearly criminal, or to commit party treason for which they will never be forgiven in their lifetimes.

Where are the Republican grownups? Mostly still in hiding.

PS. Why do I say this post shows why Brad isn't a political scientist? Because he bows in the direction of a parliamentary system. In fact, Parliamentary systems are like Republican-dominated government all the time. No checks and balances even on the good days. Yes, they can depose the irrational leader (e.g. the takedown of Thatcher). But that actually takes a very long time to happen. And parties in those systems often run awful leaders in elections (Michael Foot, William Hague, for example).

Meanwhile, the party majority votes in lockstep for fear of loss of preferment (poll tax!). No thanks.

UPDATE: Drezner has ideas, but they won't lead to results either…

Posted in Politics: US: 2004 Election | 10 Comments

Please, No US Gulag

Posted on June 18, 2004 by Michael Froomkin

Back in May we learned of allegations of excessive violence in a CIA-run secret prison and about the CIA's successful move to exempt itself from any restraints on questioning methods that might apply to the armed forces. (Then we learned about the various Torture Memos, which cast doubt on whether those restraints existed….)

Just yesterday we learned about one, then another, Rumsfeld-approved 'ghost' detainee, unpersons, hidden from the Red Cross, in violation of the 4th Geneva Convention. Oh, wait, it's today now, make that 13 ghost detainees.

It remains unclear how many of CIA prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them. Until now I had not seen an attempt to list the military prisons either.

Thanks to a report released yesterday, we now have a start on some numbers.

In Ending Secret Detention (.pdf), Human Rights First (formerly the Lawyers' Committee for Human Rights), compile a list of the US world-wide prison empire, a list dominated by military-run camps in Iraq and Afghanistan.

Consider it a first approximation. It's still a long list:

Continue reading →

Posted in Law: International Law, National Security | 1 Comment

The Iranian Code Enigma

Posted on June 18, 2004 by Michael Froomkin

Bruce Schneier is one of life's cool people and the author of Applied Cryptography, the book that introduced me to serious crypto. It took me almost a week to work through it, but I was hooked.

Bruce also does a newsletter on crypto and security more generally. The current issue of the Crypto-Gram has an intriguing item on the mystery of Chalabi and the Iraninan codes. Recall that the US is suppposed to have learned somehow that Chalabi told the Iranians we'd broken their code, possibly because the Iranians themselves mentioned this (disinfo??) in a communication they may have known the US could read:

So now the NSA's secret is out. The Iranians have undoubtedly changed their encryption machines, and the NSA has lost its source of Iranian secrets. But little else is known. Who told Chalabi? Only a few people would know this important U.S. secret, and the snitch is certainly guilty of treason. Maybe Chalabi never knew, and never told the Iranians. Maybe the Iranians figured it out some other way, and they are pretending that Chalabi told them in order to protect some other intelligence source of theirs.

…

If the Iranians knew that the U.S. knew, why didn't they pretend not to know and feed the U.S. false information? Or maybe they've been doing that for years, and the U.S. finally figured out that the Iranians knew. Maybe the U.S. knew that the Iranians knew, and are using the fact to discredit Chalabi.

The really weird twist to this story is that the U.S. has already been accused of doing that to Iran. In 1992, Iran arrested Hans Buehler, a Crypto AG employee, on suspicion that Crypto AG had installed back doors in the encryption machines it sold to Iran — at the request of the NSA. He proclaimed his innocence through repeated interrogations, and was finally released nine months later in 1993 when Crypto AG paid a million dollars for his freedom — then promptly fired him and billed him for the release money. At this point Buehler started asking inconvenient questions about the relationship between Crypto AG and the NSA.

So maybe Chalabi's information is from 1992, and the Iranians changed their encryption machines a decade ago.

Or maybe the NSA never broke the Iranian intelligence code, and this is all one huge bluff.

In this shadowy world of cat-and-mouse, it's hard to be sure of anything.

Cryptographers are often great people. Counter-intelligence people tend to be professional paranoids, and some are quite mad, because even they can't be sure…

Posted in Cryptography | 4 Comments

Jack Balkin Thumps the Pulpit

Posted on June 17, 2004 by Michael Froomkin

Balkinization today:

The torture memos, I firmly believe, show the corrupting influence of power, and the desire to advance one's political career by casting aside professional pride and telling one's superiors that they can do whatever they like, no matter how base or unjust it may be. In the Bush Administration, ambition and syncophancy have trimphed over professionalism, sound judgement and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn't have happened to a nicer bunch of guys.

It's probably too late to do anything about Bybee, alas. There seems to be a pretty strong tradition that after-confirmation discoveries of anything that isn't prosecuted don't count. See, e.g., Rehnquist .

On balance, and even though I don't like how it works here, I regret that I think this political stare decisis may be a good rule—do we want every litigant, or disappointed litigant doing oppo research on the judge? Furthermore, I think it unlikely that non-criminal pre-confirmation misdeeds meet the high bar set by the Constitutional impeachment requirement of “High crimes and misdemeanors.” (Perjury during a confirmation hearing would count because that's criminal, but there's no reason to believe Bybee would lie about it had anyone asked.)

I think that during his confirmation hearings, Bybee legitimately claimed that the content of his legal advice were covered by privilege. But I think his personal views were fair game. Unfortunately he dodged the few questions about this stuff during his confirmation hearings.

Posted in Law: Ethics | 5 Comments