U.S. Politics, 8

[Tormund Ukrainesbane]

It's not evidence that only he knows about.

Perhaps not in this case, but the precedent allows for it.

And yes, it has to be overseas, outside the legal jurisdiction of the U.S.

Who says? This is not covered under any existing law, so there is no requirement that it be outside the US. There is also nothing saying they can't grab you, take you out of the country, then kill you.

And you would know about it ahead of time so you'd be able to return to the U.S. and challenge the determination. He is free to do that.

How would you know? Do they phone you up and say "Hey, we're gonna kill you know kthxbye."? And the entire point of the article is that the White House has said you can't challenge the determination. You are not allowed to argue it in court, and even if you could, the evidence against you is secret and can't be presented in court.

Anyway, getting back to the question I was asking, I gather from your response that you do think that his status as an American citizen means that he should be immune from direct strikes against him, even if that's exactly what we'd do to anyone else engaging in that same activity. Right? Would your position change if he was in Afghanistan and running a Taliban headquarters?

No, I am against assassination in general. But I would like to hear from you in particular as to why an American citizen does not enjoy the protection of the 5th amendment, under whose plain text we can clearly see the President is prevented from acting as he is.

You are misreading that. The Authorization talks about going after the organization that planned that attack so as to prevent future attacks. The organization is AQ, and the Authorization does not say, as you seem to imply, that the only members of that organization who can be attacked are those members who planned 9/11. If this guy has joined that organization, he's fair game under that Authorization.

Once again, the evidence that this man is a member of AQ has not been presented in open court. Under the 5th amendment, he can not be deprived of life without due process, which he has not received.

[Shryke]

He's received some sort of review of his case.

"Open Court", as you seem to be using it, implies that the government cannot bring charges against someone without making them public, which could in some case compromise national security.

I'm sure there's some sort of provision in US law for cases like that, where the details can't be made public.

[Former Lord of Winterfell]

Perhaps not in this case, but the precedent allows for it....Who says? This is not covered under any existing law, so there is no requirement that it be outside the US. There is also nothing saying they can't grab you, take you out of the country, then kill you.

Yes there is -- the Constitution. That clearly controls withink U.S. jurisdictional limits. But the application of the Constitution overseas during time of war is a different issue.

It's like you're not arguing against this particular action, but against hypothetical future actions involving materially different facts. My position on those would be different. But in the case of a U.S. citizen publicly directing and encouraging the killing of other U.S. citizens from overseas.... Yeah, kill him.

How would you know? Do they phone you up and say "Hey, we're gonna kill you know kthxbye."? And the entire point of the article is that the White House has said you can't challenge the determination. You are not allowed to argue it in court, and even if you could, the evidence against you is secret and can't be presented in court.

This guy obviously knows, and one issue I mentioned earlier is that I think the names need to be public so that the person can come here and challenge it. Once the person is here, and not hiding overseas where law enforcement cannot grab them, and when imprisonment is impossible, they get due process. But if they are encouraging/directing attacks against U.S. citizens, and deliberately remaining outside our jurisdiction, I really don't think they're leaving us with much of a choice.

No, I am against assassination in general.

Oh, okay. Well then we just disagree on that fundamental issue then. So you think it was wrong to target and shoot down Admiral Yamamoto's plane during WWII? If not, what is the difference?

But I would like to hear from you in particular as to why an American citizen does not enjoy the protection of the 5th amendment, under whose plain text we can clearly see the President is prevented from acting as he is.

Because I don't think the Constitution applies to the same degree overseas. I think it was a document intended to set our laws here, and extra-territorial operations in defense of the nation were not intended to be covered by those exact same rules. I think in those cases, the Constitutional appointment of the President as "Commander in Chief" of the Armed Forces vests him with greater discretion than the normal limits of domestic legislation. The Constitutional protection against a President abusing that power is the Impeachment power of the Congress.

Once again, the evidence that this man is a member of AQ has not been presented in open court. Under the 5th amendment, he can not be deprived of life without due process, which he has not received.

He is free to obtain due process. All he has to do is submit himself to the jurisdiction of the court system. The government has said that publicly.

[Altherion]

To your first point, I know. That's what I'm saying. I think you're confusing me with LC there.

Yes. Sorry.

Second, presumably any system found to be noncompliant would be preemptively shut down, thereby eliminating any need for any back door to be provided. I realize there are many and it is hard to eradicate all of them, but that appears to the tack the government would like to take.

But that's the thing: it's not just hard, it's practically impossible. There is no central agency of cryptography that the FBI can go after. For example, all you have to do to make sure that your hard drive will not be read by anyone you don't authorize is install a copy of freely available (and not just from the US) TrueCrypt and choose a password not easily beaten by dictionary-based attacks. To send encrypted email, just download any popular client (Thunderbird and Evolution have it, I haven't used others in a while) and you'll have PGP or GPG or something similar at your disposal.

To go after this system, they'd have to restrict publication of source code and/or seize individual computers. Last time they tried restricting source code (by calling it "munitions"), the PGP author published it in a book and dared them to go up against the First Amendment. Encryption is not something a single government can easily fight and even if all governments banded together against it, they'd have a pretty tough time.

But, from what I'm understanding, the companies generally aren't even able to decrypt their own encryption, rendering that statement nonsensical. Is that correct?

It is correct for companies that handle important information. The reason is that if a company is theoretically able to access the information it conveys, in practice that means some individuals at the company is able to access said information. This is unimportant (if a bit weird) as long as all these individuals can do is spy on the email and chat logs of teenagers, but if the information in question contains the technicalities behind an unannounced billion dollar merger, random engineers being able to access it is rather problematic.

[Guest Raidne]

Yeah, that's more than fair. I'm sorry. Yet, even though it's a godsend for terrorists, it's a godsend for anyone, and criminals generally. What's the need to bring terrorism into it in particular?

Because the stakes are much higher, making the government's need that much more "compelling." Call it "subverting the possibility of acts of war on American soil" if you want - it's really about the same thing, except if we're being realistic, we're in just as much danger from McVeighs as we are from Al Qaeda, so I say "terrorism" instead of "acts of war of Al Qaeda" or whatever.

Why, before I've even done anything wrong, and before any warrant has ever been obtained to search any of my property, real or intellectual, should I be obligated to provide special access appertures just in case the government someday in the future decides they need to invade my privacy -- legal warrant or no?

These are weird issues that have to be worked out in the context of technology. It's a big, big problem, because the lawyers (Judges) involved don't understand the technology, and the people who understand technology don't understand how the law works. You tried to draw a real life analogy vis a vis a safe, but it's not a good analogy, because a safe is not a method of communication. You could say that a wiretap is a search so it's analogous to a search warrant for your safe, so that it's like having to give the government a key to your house, even, before you move in, and they just promise not to use it unless they get a warrant.

But it's not really the same, because there just isn't the same possibility that they won't be able to get into your house, or your safe, without that key.

I am inherently wary of attempts to write law for electronic communications by analogy to physical things. That way lies embarassment, ruin, and really, really bad law for all involved. See, e.g. the history and interpretation of the ECPA and the application of trespass law. I don't know, see, e.g. my entire Cyberlaw textbook, really.

And while I appreciated the article linked, I'm still a little wary of Wired and the objectivity of their reporting as they down on the side of internet exceptionalism long, long ago.

[Guest Raidne]

But that's the thing: it's not just hard, it's practically impossible...

Sorry for the double post - this is a good example of how technologically savvy people and those with lawyer-fu can talk past each other.

Here's the thing - it doesn't matter in all contexts. It matters when Congress is debating whether or not to pass the bill on its merits.

It does *not* matter in terms of figuring out whether or not the bill, if passed, would be an unconstitutional violation of privacy, whereas the argument about the vulnerability of a back door can be (somewhat) phrased to argue that on the grounds that it makes the government's approach insufficiently narrowly tailored, i.e. only certain types of "stupid" are relevant for the constitutional argument.

It is correct for companies that handle important information.

So, truly, the FBI is asking a for something nonsensical? Like, "No we're not trying to outlaw cheese by outlawing cheese. People can have cheese. They just better make sure it's not cheese first"?

[Shryke]

Sen. Jim DeMint (R-SC) is telling members that he plans to grind the already lethargic Senate to a complete halt at the end of the day.

DeMint's staff informed all Senate offices yesterday that he plans to hold all legislation that hasn't been "hot lined" by the end of business on Tuesday, forcing each piece of legislation the Democrats hope to address before the election to overcome days' worth of procedural obstacles.

http://tpmdc.talkingpointsmemo.com/2010/09/jim-demint-plans-to-grind-senate-to-a-halt.php

[Tormund Ukrainesbane]

Yes there is -- the Constitution. That clearly controls withink U.S. jurisdictional limits. But the application of the Constitution overseas during time of war is a different issue.

Under the constitution this is patently illegal. We aren't at war. Once again, this is a criminal matter, not a matter of war.

It's like you're not arguing against this particular action, but against hypothetical future actions involving materially different facts. My position on those would be different. But in the case of a U.S. citizen publicly directing and encouraging the killing of other U.S. citizens from overseas.... Yeah, kill him.

Yes I am arguing against this particular action, and any potential future action.

This guy obviously knows, and one issue I mentioned earlier is that I think the names need to be public so that the person can come here and challenge it. Once the person is here, and not hiding overseas where law enforcement cannot grab them, and when imprisonment is impossible, they get due process. But if they are encouraging/directing attacks against U.S. citizens, and deliberately remaining outside our jurisdiction, I really don't think they're leaving us with much of a choice.

See now I know you're being deliberately obtuse. He's hiding partially be cause he can't get due process. The White House has said that this ruling CANNOT BE CHALLENGED. He can't come here and challenge it because the President will not allow any court to hear the case, and he can't come here because if he tries he will be KILLED.

Oh, okay. Well then we just disagree on that fundamental issue then. So you think it was wrong to target and shoot down Admiral Yamamoto's plane during WWII? If not, what is the difference?

What the difference between killing a uniformed soldier during a declared war and a guy who we are (sort of planning to) charging with a crime? Is that a serious question?

Because I don't think the Constitution applies to the same degree overseas. I think it was a document intended to set our laws here, and extra-territorial operations in defense of the nation were not intended to be covered by those exact same rules. I think in those cases, the Constitutional appointment of the President as "Commander in Chief" of the Armed Forces vests him with greater discretion than the normal limits of domestic legislation. The Constitutional protection against a President abusing that power is the Impeachment power of the Congress.

You and John Woo. Fun company to keep.

He is free to obtain due process. All he has to do is submit himself to the jurisdiction of the court system. The government has said that publicly.

Hey dude, come over here. We'll give you a fair trial we swear! Oh yeah, we're going to kill you on sight. But you'll totally get fair treatment! But, you'll be dead. But it'll be a jury of your peers and everything!

[Altherion]

Sorry for the double post - this is a good example of how technologically savvy people and those with lawyer-fu can talk past each other.

Here's the thing - it doesn't matter in all contexts. It matters when Congress is debating whether or not to pass the bill on its merits.

It does *not* matter in terms of figuring out whether or not the bill, if passed, would be an unconstitutional violation of privacy, whereas the argument about the vulnerability of a back door can be (somewhat) phrased to argue that on the grounds that it makes the government's approach insufficiently narrowly tailored, i.e. only certain types of "stupid" are relevant for the constitutional argument.

I see. But I hope you understand that this is how we wind up with a lot of laws related to technology that impose costs and restrictions on ordinary people while having very little effect on those they are presumably targeting.

So, truly, the FBI is asking a for something nonsensical? Like, "No we're not trying to outlaw cheese by outlawing cheese. People can have cheese. They just better make sure it's not cheese first"?

Sort of. They are asking for the software to be rewritten in a way that allows access. In the case of, say, RIM (maker of Blackberry), this is probably not too difficult (RIM did it for the Saudis, UAE, etc.), but I have no doubt its customers would be extremely unhappy about such a change. In the case of Skype, it would mean a substantial rewrite from the ground up.

[Former Lord of Winterfell]

Under the constitution this is patently illegal. We aren't at war. Once again, this is a criminal matter, not a matter of war.

Where in the Constitution does it say this would be legal if there was a formal declaration of war? Based on your argument, that shouldn't make a damn bit of difference. He should get due process anyway.

See now I know you're being deliberately obtuse. He's hiding partially be cause he can't get due process. The White House has said that this ruling CANNOT BE CHALLENGED. He can't come here and challenge it because the President will not allow any court to hear the case, and he can't come here because if he tries he will be KILLED.

No, you're either misreading what is going on or misrepresenting it. If he voluntarily comes here, he gets due process. If he doesn't, he gets whacked.

What the difference between killing a uniformed soldier during a declared war and a guy who we are (sort of planning to) charging with a crime? Is that a serious question?

Yes. Are you saying that a refusal to wear a uniform while engaged in hostilities should give you more legal protection than wearing a uniform? That's rewarding conduct that violates the law of armed conflict. And why does "a declared war" matter so much to you? Point me to where in the Constitution it says that matters. You've got an Authorization of Force, which is more limited than a full declaration of war, voted on by the Senate. Why isn't that enough? And if not, would you be okay with it if there was a "Declaration of War" rather than an Authorization for Use of Force" on Al Qaeda? I don't see how a technicality like that addresses any of the substantive concerns you've expressed about killing this guy.

The problem with your objections is their logical consequence. If this guy was an field commander for the Taliban, not wearing a uniform, and routinely directing actions against U.S. troops, do you think it would be legal to target him and his headquarters with a Predator strike? You don't seem to want to address that, but I really can't see much of a difference between that situation and the one we face right now with this guy.

Hey dude, come over here. We'll give you a fair trial we swear! Oh yeah, we're going to kill you on sight. But you'll totally get fair treatment! But, you'll be dead. But it'll be a jury of your peers and everything!

No, they've already said that's not the case. What they're saying is that if he intentionally remains overseas, the order to bump him off can't be challenged.

[Guest Raidne]

I see. But I hope you understand that this is how we wind up with a lot of laws related to technology that impose costs and restrictions on ordinary people while having very little effect on those they are presumably targeting.

Actually, it's not. More commonly, IMO, we end up with judicial interpretations of laws related to technology that impose laws and restrictions that are very burdensome while having very little practical effect.

Congress, OTOH, has a much greater capacity to fact-find in committee, and hopefully will do so and will take the expert testimony into consideration. Presumably the agencies involved have also done investigations. All of this, while flawed, is vastly preferable to one person sitting around trying to decide what "intercept" means in relation to a Skype call. (And, by the way, they'd probably hold that when it's on one of the transmitting servers, it's not being intercepted because it's not in transmission, it's being "stored," such that it can be accessed without a warrant. Seriously.)

Honestly, you have no idea. I think I have a paper on this around somewhere. I understand that Congress might pass a bad law, but the idea of them clarifying what's already on the books is not a bad thing.

What really needs to happen is that the ALI should get a section of cyber-lawyers (such as they as) together and submit a recommended batch of laws. That happens sometimes - much better stuff comes out of that kind of process than the other options. There just really aren't that many lawyers with the requisite expertise.

Sort of. They are asking for the software to be rewritten in a way that allows access. In the case of, say, RIM (maker of Blackberry), this is probably not too difficult (RIM did it for the Saudis, UAE, etc.), but I have no doubt its customers would be extremely unhappy about such a change. In the case of Skype, it would mean a substantial rewrite from the ground up.

So it's not true that the bill, if passed, would end Skype altogether?

[Shryke]

Hey dude, come over here. We'll give you a fair trial we swear! Oh yeah, we're going to kill you on sight. But you'll totally get fair treatment! But, you'll be dead. But it'll be a jury of your peers and everything!

Uh, no Tormund. Unless something has changed since the original announcement, it's a kill or capture order.

He was already on the "capture" list, they just got authorization to potentially kill him if they couldn't easily capture him when they found him.

So no, he's no "kill on sight".

[Tormund Ukrainesbane]

Where in the Constitution does it say this would be legal if there was a formal declaration of war? Based on your argument, that shouldn't make a damn bit of difference. He should get due process anyway.

You kill enemy soldiers during war. That's what wars are.

We are not at war with this guy, or Al-Qaeda. They are criminals. They need to be treated as such.

No, you're either misreading what is going on or misrepresenting it. If he voluntarily comes here, he gets due process. If he doesn't, he gets whacked.

His father has hired a lawyer who is asking for a hearing. The government has said he can't have one. Why does the individual have to be present for due process to begin?

Yes. Are you saying that a refusal to wear a uniform while engaged in hostilities should give you more legal protection than wearing a uniform? That's rewarding conduct that violates the law of armed conflict. And why does "a declared war" matter so much to you? Point me to where in the Constitution it says that matters. You've got an Authorization of Force, which is more limited than a full declaration of war, voted on by the Senate. Why isn't that enough? And if not, would you be okay with it if there was a "Declaration of War" rather than an Authorization for Use of Force" on Al Qaeda? I don't see how a technicality like that addresses any of the substantive concerns you've expressed about killing this guy.

We aren't engaged in hostilities. I've said it a gazillion times. The Senate does not have the power to overrule the constitution. If we had a declaration of war, and he was a soldier for the other side we wouldn't be having this conversation. But we don't. We have charges of criminal activity. Thus, legal channels must be followed.

The problem with your objections is their logical consequence. If this guy was an field commander for the Taliban, not wearing a uniform, and routinely directing actions against U.S. troops, do you think it would be legal to target him and his headquarters with a Predator strike? You don't seem to want to address that, but I really can't see much of a difference between that situation and the one we face right now with this guy.

No, I don't. I find our entire exercise in Afghanistan to be noxious, evil, and without moral standing.

No, they've already said that's not the case. What they're saying is that if he intentionally remains overseas, the order to bump him off can't be challenged.

Which flies in the face of article 5 of the US constitution (which does not grant an exception for people overseas, as much as you want it to).

[Altherion]

So it's not true that the bill, if passed, would end Skype altogether?

It may; I don't know enough about the implementation of Skype to make that call. To the best of my knowledge, Skype works by using computers that are currently running Skype as relay nodes. This is very efficient because it avoids the need for a large number of servers in different parts of the world, but it also means that there is no obvious way to intercept a particular communication -- even if it was not encrypted, you could only reliably catch it at the two endpoints because you don't know what the path it takes in between is and you can't raid private PCs of random individuals (though in that case, said individuals could intercept random communications). Thus, there is no way Skype could work in the way it works right now. Whether they could figure something out to make it work with intercepts is a different question: Wikipedia says that they implemented something of the sort in China.

[Former Lord of Winterfell]

You kill enemy soldiers during war. That's what wars are.

We killed enemy soldiers during Korea, Vietnam, and everything since without a declaration of war. Are all those killings unlawful?

We are not at war with this guy, or Al-Qaeda.

I'll ask again. If there was a Declaration of War against Al Qaeda, this would be legal? Or not?

His father has hired a lawyer who is asking for a hearing. The government has said he can't have one. Why does the individual have to be present for due process to begin?

Because otherwise, the process serves no function other than to expose intelligence sources.

We aren't engaged in hostilities.

Yes we are. Whether it is lawful under the Constitution is a different question, but the fact that we are engaged in hostilities is inarguable.

I've said it a gazillion times. The Senate does not have the power to overrule the constitution. If we had a declaration of war,

Where in the Constitution does it say that there must be a Declaration of War before the President can order troops into combat?

A Declaration of War is an open-ended, all-out committment. The Constitution really has no mechanism to force a President to make peace after war has been declared. There's a war, and it's up to the President to end it. The Senate can ratify a peace treaty to end the war, but doesn't have the ability to negotiate or sign such a treaty. That takes the President. Now in lieu of declaring open-ended war, the political branches have come up with a mechanism to permit more limited war, under restrictions set by the Senate. That's these Authorizations of Force, or Joint Resolutions, or whatever. I see nothing in the Constitution saying that this method of waging more limited hostilities that maintain some restraints on presidential authority are unconstitutional means of authorizing military action. Now maybe you do, but I don't see it anywhere in the document. So I don't agree with your contention that we're not legally engaged in hostilities just because a Declaration of War was not passed by the Senate.

and he was a soldier for the other side we wouldn't be having this conversation. But we don't. We have charges of criminal activity. Thus, legal channels must be followed.

Well again, IF there was a Declaration of War against AQ, would that end your objection, or not?

[Serious Callers Only]

The descent into fascism of America continues.

None cares

[Starkimus]

Hey hey all!

Just wanted to stop in and say hello. It has been great entertainment reading the past few pages.

On a financial note: We are still paying 2 mortgages (going on 3 years now). So, the houseing market still sucks despite what any one says. Or, I am too damn stuborn to lower the price and not make a profit... I think I will just wait a while since (even though it sucks to pay two mortgages) we are not at a point of defaulting yet... And the reason for that is:

Stark got a job!! Wooohoo!! Everyone cheer now! Yes, things are still pretty crappy in the job sector here too in SC. I think our unemployment level in the state is just over 10%. I have been one of those folks not counted in unemployment since I never took benefits (hate hand outs), so I do not really help that number. Oh well. I got lucky as hell getting the position and still know many people who are out of work, or underemployed at the moment(and have been for at least a year). I pray for them daily, and hope others do as well.

So, now that I am working again, I do not have as much free time to take pot shots at the board, and I know everyone is feeling a little sad about that. But, I will be lurking now and again, so be on your toes!

Hasta!

Stark Out!