Jan 21

Elections have consequences

… and 8 years of Bush == an end to what little democracy we have left. The essence of the case is an emasculation of representative democracy, an increase in corruption, the overturning of long-standing precedent, and an opening of the floodgates to direct, corporate participation in campaign spending. From the NYT:

A bitterly divided Supreme Court ruled on Thursday that the government may not ban political spending by corporations, labor unions or other organizations in elections. The court’s majority in Citizens United v. Federal Election Commission swept aside a century-old doctrine in election law, ruling that the campaign finance restriction violated the First Amendment’s free speech principles. The dissenters said opening the floodgates to corporate money will corrupt democracy.

Well, I guess at least the corporate influence will be unmistakably obvious now. So we’ve got that. We’ve also got a near 0 probability of any reform candidate ever winning, and a near 1.0 probability of incumbent protection … leading to further ossification of our government and the strengthening of the oligarchy. On the other other hand, maybe this is outrageous enough to re-spur the reform movement … in another 100 years.

While I should add that I believe the definition of an “activist” judges is one who issues a decisions with which you disagree, this is an activist decision. There is nothing more “activist” than overturning a 100-year old precedent, which the Scalitothomasroberts group did. Thus, the Bush “minimalists” and “strict constructionists” and “originalists” are … activists.

Also, fuck you, Kennedy.

Dec 31

Finally some movement on Tasers

Hooray for activist judges! 9th circuit just issued a ruling articulating a standard regarding the acceptable use of tasers by cops.

A federal appeals court on Monday issued one of the most comprehensive rulings yet limiting police use of Tasers against low-level offenders who seem to pose little threat and may be mentally ill.

In a case out of San Diego County, the 9th U.S. Circuit Court of Appeals criticized an officer who, without warning, shot an emotionally troubled man with a Taser when he was unarmed, yards away, and neither fleeing nor advancing on the officer.

The San Diego County case is the latest ruling to address the issue.The court recounted the facts of the case: In the summer of 2005, Carl Bryan, 21, was pulled over for a seat-belt violation and did not follow an officer’s order to stay in the car. Earlier, he had received a speeding ticket and had taken off his T-shirt to wipe away tears. He was wearing only the underwear he’d slept in because a woman had taken his keys, the court said without further explanation.During his second traffic stop in Coronado, he got out of the car.

He was “agitated … yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes” but did not threaten the officer verbally or physically, the judges wrote.

That’s when Coronado Police Officer Brian McPherson, who was standing about 20 feet away watching Bryan’s “bizarre tantrum,” fired his Taser, the court said.

Without a word of warning, he hit Bryan in the arm with two metal darts, delivering a 1,200-volt jolt.Temporarily paralyzed and in intense pain, Bryan fell face-first on the pavement. The fall shattered four of his front teeth and left him with facial abrasions and swelling.

A three-judge panel of the 9th Circuit affirmed the trial judge’s ruling on Monday, concluding that the level of force used by the officer was excessive.McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan was mentally ill, as the officer contended, then there was even more reason to use “less intrusive means,” the judges said.”Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable,” Judge Kim McLane Wardlaw wrote for the court. “His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force.”

“Certainly the officer should be able to articulate the reason the force (was used), and a mere resistance to comply may not be enough,” said Sheriff John McGinness.

Feb 16

Eliminationis Rhetoric

Why is this not all over the news?

According to the FBI report, which was originally posted online by WikiLeaks, an organization that posts leaked documents, police also found a National Socialist Movement membership application filled out by Cummings. The NSM currently is the largest neo-Nazi organization in the country, with 69 chapters in 30 states.

Amber Cummings reportedly told police that her husband was “very upset” over Barack Obama being elected president, had been in contact with white supremacist groups, and that he’d been mixing chemicals in their kitchen sink while talking about dirty bombs

Imagine if it were a Republican president and Cummings was named Garcia or Sharif.

Oh, wait, I know why… let’s talk about steroids and LiLo’s new lips. Muuuuch more important these days, because everyone knows there’s no such thing as domestic terrorism.

Jan 25

Clemency, now

Texas is, surprise surprise about to execute a possibly innocent man on Tuesday. Sign the petition to try and get Gov. “Culture of Life” Perry to stop this travesty.

Four forensic pathologists agree that Larry Swearingen, set to be executed Tuesday, could not have committed the 1998 murder that sent him to death row.

The four include the medical examiner whose testimony helped secure Swearingen’s guilty verdict. That medical examiner now says college student Melissa Trotter’s curiously preserved body could not have lain in the East Texas woods for more than 14 days — and probably was there for a much shorter time.

The results mean Swearingen was in jail when the 19-year-old’s body was left behind, the pathologists say.

At the least there is significant objective doubt as to whether or not Swearingen could have committed this murder. All attempts to have the courts review this evidence or reconsider have fallen upon deaf ears. It is now down to appeals to mercy from a hangin’ Republican in order to extinguish all options.

Update: Fed court intervenes, grants appeal, execution is stayed. Fantastic!

Oct 09

Looks like the Straight Talk Express

is about to meet the Troopergate Corruption Freight Train

The Alaska Supreme Court refused to halt an investigation into Governor Sarah Palin’s firing of the state police chief, paving the way for tomorrow’s planned release of the findings.

The Supreme Court dismissed the case brought by five state Republican lawmakers who sought to stop the probe, claiming it was unconstitutional and tainted by partisan politics. The investigation, known as Troopergate, took on national importance after Republican presidential nominee John McCain picked Palin as his running mate.

The Alaska Legislative Council, a bipartisan committee of 14 lawmakers that conducts business when the Legislature isn’t in session, voted unanimously on July 31 to investigate Palin’s July 11 firing of Alaska Public Safety Commissioner Walt Monegan. The commissioner said he was dismissed for refusing to fire state trooper Mike Wooten, who was involved in a divorce and custody battle with Palin’s sister.

Aug 01

Elections have consequences

And the last two have resulted in the complete destruction of your basic civil liberties.

Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

Your data will never, ever be disappeared. This is essentially the newest ultimate expression of the fascist panopticon. Welcome to your GOP overlords.

Suggestions: If you must travel across borders with your laptop, use a high-security system (Linux, or in a pinch, a Mac) and if stopped, refuse to hand over your password or log in. You’ll almost certainly lose your laptop (for a bit), but your data will still be yours and what passes for privacy these days still secured… until quantum computers come out, that is.

Alternatively, pack a blank hard drive and hide your second. So long as your second (real) hard drive is still encrypted and not in obvious plain sight where it will be seized, you’ll be fully up and running as soon as you get out of Der Homeland’s sites… and they’ll be stuck with useless, false information.

I’m sensing a new business opportunity in database-destroying false information hard drives to savvy consumers. a) profit; b) privacy; c) civil liberties; and d) if we poison the database with bad information, it will lose all value. Any interested angel investors out there, give me a call.

I should point out that the policy is not all that new, just the publishing of it. Schneier has some other suggestions on how you can hide your data (encryption within encryption, among others)

Apr 10

War Criminals

The Bush Admnistration was directly involved in the method, extent, and forms of torture used against captured persons of (possible) interest.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of “combined” interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these “enhanced interrogation techniques” were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

The fact that these people are still (mostly) running our government instead of being behind bars is probably the most accurate snapshot, and indictment, of our country today. Ruled by a clutch of undemocratic totalitarians, the America I grew up with is gone and our moral authority with it.

Feb 05

Maybe this is what Saddam was working on

I found this in a bunker near Tikrit
Pop Its

Teen faces WMD charge after plastic egg explodes

An 18-year-old Elizabethtown man is charged with possessing a weapon of mass destruction and other offenses over a plastic egg explosion.

Police say he ignited a plastic egg filled with plastic air-gun pellets in a flea market, hitting at least five people and causing alarm. It happened Saturday afternoon at a Saturday’s Market in Londonderry Township, Dauphin County.

Ignoring, for the moment, the patent absurdity of charging someone with using a “weapon of mass destruction” when that “weapon” caused, and could cause, no destruction at all, let alone “mass destruction” and all of the negative reflections upon the state of our society and policing if this charge were indeed levied… is it even possible to lay this charge on the kid?


Pennsylvania statutes1 show that this incident probably meets the statutory definition … but only by the barest whisker, if at all. The statute allows for bring this charge if a person “without lawful authority to do so, intentionally, knowingly or recklessly possesses or manufactures a weapon of mass destruction.”2

Naturally, this begs the question: what is a weapon of mass destruction under Pennsylvania law?

I’m glad you asked, Johnny! Because the answer is in the same statute. A “weapon of mass destruction” is “A biological agent, bomb, chemical agent or nuclear agent.”

A plastic egg filled with plastic pellets is not a biological, chemical, or nuclear agent, leaving the only possibility of bomb. What is the definition of “bomb” under this statute? “An explosive device used for unlawful purposes.”

And that’s where the sliver of possibility resides. I’m pretty sure the egg went BANG and was used in the creation of calamity, thus it likely satisfies both elements of the definition. Absurd, but likely.

Now, this statute, or at least that provision, is certainly ripe for some constitutional void-for-vagueness challenges (a “bomb” is a weapon of mass destruction? Really? No matter how big?), which I’m certain we won’t see here as the strategy was likely one intended to make the kid take a plea bargain. By a similar reading of this statute, it would make no difference if the kid had a plastic egg, EFP, or a box full of Pop-Its that scared three biddies.

Welcome to the new GOP world of bedwetting fear. Make sure you carry spare undies for every time a gnat farts in your direction.

1. 18 Pa.C.S.A. § 2716

2. The article says charged with possession, but if he possessed here, he also used and likely manufactured.

Jan 27

Search Incident to Seizure in the age of the iPhone

There’s a paper on SSRN entitled The iPhone Meets the Fourth Amendment


Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone’s call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes.

I’ve read the paper and I think that the abstract above is incorrect as to what the paper states, but also Gershowitz’ conclusion overreaches. I think it clear and inarguable that the iPhone or other devices1 may be seized incident to arrest, but it is doubtful that they may be “searched” beyond data already stored on the phone.

A key difference between the cigarette pack search he refers to frequently and searching a technological device is that the officer may easily detect contraband or dangerous goods using one of their senses. This “closed container” doctrine has been upheld by courts already to allow officers to read text messages on phones on an arrested suspect and then use those text messages as evidence.

However with modern devices, much of the information that would be of interest to the police is stored on third party servers. A typical search that would yield indictment-worthy information is going to be email, IM messages, or similar which are under the control of third parties (such as email providers), not stored in the phone themselves.2 If you allow immediate mining of third parties, such as Yahoo email, that under any and every theory and ruling in American law (FISA bill and Bush administration excepted), then you have destroyed the Fourth Amendment for all intents and purposes (in laymen’s terms: you need the court’s permission to ask these providers for information. If you access this information without permission, you’ve just done an end-run around the Constitution. You must subpoena teh googlez!). It is as plain as the Newspeak nature of doughy pantload’s book – if you access third party services that would otherwise require a warrant, you have violated the Fourth Amendment.

Gershowitz addresses this in part, but also hand waives it away, using the example of an officer who gets access to a device’s password by accessing the owner’s email, finding the password there, and then using that password to open the device. Gershowitz argues that this search is permissible, whereas I would argue that accessing the user’s email is a clear violation of the Fourth Amendment and any subsequent searches on the phone would be excluded as fruit of the poisonous tree. Gershowitz also ignores the time and technical savvy required for an officer holding a suspect to do this. If the officer has time to do this, they have time to do it back at the station, after obtaining a warrant.

The paper does a typical journal article scattershot attack after that of potential theories to apply to the “new” situation, none of which is very revealing or realistic. As with most everything in law, the answer’s going to be shoehorn the situation into existing justifications, shoehorn + minor twist to address the truly novel part (which sometimes has the result of turning the existing justification on its head), or in about 1 out of fifty thousand cases “something new.”

Short response: somewhat interesting theory, but I remain unconvinced that the conclusion that such searches are “likely” to be upheld is the correct one. Much of this, of course, relies on which judge hears which case. Traditional jurisprudence would, I feel quite strongly, uphold the prohibition on accessing any off-device services to search the device. Given the radical authoritarian nature of the justices the Bush administration has placed on the bench, I am uncertain as to the actual outcome when this potential issue becomes a reality.

1. I’m just going to use “device” from here on out.

2. I don’t have an iPhone, so I don’t know if text messages are stored locally or on internet servers. I would assume locally just for end-user responsiveness and bandwidth issues.

Jan 22

Travesty of Justice

Jose Padilla sentenced to 17 years in prison

Jose Padilla, once accused of plotting with al Qaeda to blow up a radioactive “dirty bomb,” was sentenced Tuesday to 17 years and four months on terrorism conspiracy charges that don’t mention those initial allegations.

Padilla, an American citizen, was taken on U.S. soil (with Ashcroft holding a press conference to announce the grab of the dirty bomber), held without charges for 3.5 years,1 in solitary confinement, denied access to an attorney, and tortured.2 I’ve mentioned this before.

Without even going to the elements of what appears on the surface to be a Thought Crime more than an actual crime, there is no conceivable way by which this trial could be imagined to have been fair or Padilla’s civil rights upheld. Any one of the elements above would be sufficient in a system still beholden to the rule of law to create a mistrial; taken together the are a nightmare of coercion, duress, and authoritarianism.

This verdict is a black eye on the Department of Justice, the prosecuting attorneys who did not resign rather than try this case, the judge, the judicial system, the media, the Bush administration, and America.

Just fucking embarrassing.

I’m sure my shame and anger will comfort the now-physically and mentally broken Padilla while he’s in solitary confinement and on suicide watch for the next 17 years.

The Bush administration and the DoJ forwarded an argument in this case, and one that has apparently stood, that the President has the power to declare anyone – even a United States citizen – to be an enemy combatant and outside the jurisdiction of our system of laws. Again, I’ve talked about this before. Gentle reader, from the results of this case, you too could be deemed an enemy combatant. At any time. In any place.

I hope you like Uzbekistan. Or at least windowless rooms in hot climates. I also hope you aren’t too attached to your fingernails, skull, or skin.

Note: unlike John Cole, I don’t think this sentence is a rebuke to the Bush government. To reach that stage, you first have to accept the Bush-DoJ interpretation of enemy combatant and that this was a fair trial. A real rebuke would have dismissed the case. This is just mealy halfassed reasonableness by the judge.

1. Remember, the Bush DoJ held Padilla for more than 2 years in a Navy brig in order to keep him from the reach of US courts.

2. The tapes of Padilla’s interrogations have, naturally, vanished and could not be produced at his trial. Convenient, no?

Jan 21

Those Crazy Shredders

Wow, what a coincidence! It just so happens that the missing emails (related deletions discussed previously) from the records the White House turned over to Congress aren’t complete. Golly gee willickers! Whouda thunk that the emails turned over by the OVP would be missing 16 days worth of emails?

House Oversight Chairman Henry Waxman (D-CA) revealed that the White House failed to preserve emails for at least 473 separate days. Waxman’s report said “Vice President Cheney’s office showed no electronic messages on 16 occasions from September 2003 to May 2005.” Among the sixteen days for which email are missing from Vice President Cheney’s office “is Sept. 30, 2003, the same day the day the Justice Department and the Federal Bureau of Investigation announced they were investigating who outed former CIA officer Valerie Plame Wilson.”

INT. office – night

We revolve around a classic, quality desk largely cleared of papers. It’s dark wood exudes power and solidity. A single lamp spotlights the desktop and the two liver-spotted hands lightly touching at the fingertips. CHENEY, the man behind the hands, is in shadow. He may or may not be undead. Thunder BOOMS outside and rain DRUMS on the windows. The phone RINGS.


The data we provided to Congress is incomplete you say? And the missing days just happen to align with my Energy Task Force and the Plame records?


My, that is unfortunate.


How could that have ever happened?


Close up of a severe, old, possibly dead man’s eyes. Which are behind glasses. We slowly pan back until we can see all of CHENEY’S face. A corner of one side of his mouth curls up. CHENEY winks. The lamp CLICKS off.


Remember, this is the group that permanently deleted the pre-Iraq email backups. The group (especially Rove) that used RNC mail servers for official government business and then deleted those emails when subpoenaed. All of this is in violation of the Federal Records Act and we’re not even into conspiracy to obstruct justice territory or the substance of the underlying crimes yet.

And Congress apparently still thinks “impeachment” is a new cocktail from Georgia.

Jan 17

Fire up the Shredders!

Just like the Enron they so resemble and admire (and used to work for), the Bush administration just happened to destroy all records of pre-Iraq war emails. How convenient!

The White House has acknowledged recycling its backup computer tapes of e-mail before October 2003, raising the possibility that many electronic messages — including those pertaining to the CIA leak case — have been taped over and are gone forever.

The disclosure came minutes before midnight Tuesday under a court-ordered deadline that forced the White House to reveal information it has previously refused to provide.

Among the e-mails that could be lost are messages swapped by any White House officials involved in discussions about leaking a CIA officer’s identity to reporters.

Note that this, in addition to, you know, hiding the crimes, is almost certainly in violation of the Federal Records Act. To be in compliance with the FRA, records may only be destroyed under the authority of a records disposition schedule approved by the Archivist of the United States.

NARA issues a General Records Schedule (GRS) that gives record descriptions of records that are common to most Federal agencies and authorizes record disposals for temporary records. The Department is responsible for developing agency record schedules-with the approval of the Archivist of the United States-that are tailored to our own agency-specific records that are not provided for in the GRS.

Record schedules are mandatory instructions of what to do with records (and nonrecord materials) no longer needed for current Government business. The records schedules indicate how long a document must be kept before it is transferred to a Federal Records Center, destroyed or transferred to NARA for permanent preservation.

Now, gentle Congresscritters, who is going to be the first to query the record schedules to see if these documents were on the list? Who is going to be the first to issue a subpoena? Who is going to be the first to mention “criminal conspiracy to obstruct justice”?

I’m going with “no one,” but they should. Not only did Congress let the administration get away with rampant lawbreaking for 7 years… they’re going to let them destroy the evidence while they sit around and have bullshit investigations about fucking steroids in a sport?!? Jesus fuck that makes me want to find the nearest protruding object and run into it full force with my eyeball.

The sad part is, I remember when this behavior by the Busheviks used to surprise me.