Tuesday, September 14, 2010

Compelling Necessity

I have been digesting this for a few days now.  Since no amount of "digestion" seems to help, I will just get it off my chest in the usual way.

On 8,  Sept the 9th Circuit ruled that the state secrets doctrine bars a court action for torture.  That means that you (yes you, citizen!) can be dragged away in secret, held for years without charges, tortured etc etc and if the government wants to call their own law breaking a secret (meaning that there are "state secrets" involved) there is not fuck all that you can do.  Full stop.
This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court. 
From the Jeppesen Dataplan suit.

This is a big deal in that the same branch of the government that is breaking all these international laws, is the same one that defines what should be kept secret in the name of national security.  You do the math.

You can not tell me that the current administration is somehow innocent of this as well - they have pushed for a growth of executive privilege and pledged to ignore the self admitted crimes against humanity from the previous administration.

The ACLU’s Ben Wizner on the decision:
This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.
I need a fucking drink.

Monday, September 13, 2010

The tendency of a principle to expand itself to the limit of its logic.

In reading (whatever the hell I manage to read in my spare time), ran across this.  More to say about it, but want to get it down now.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.
Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. . . .
A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” * A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.
Justice Jackson, wrote this in his dissent from Korematsu v US (starting on page 322 US 243).

Friday, September 3, 2010


So I have been on hiatus for the past six months or so, trying to catch up on work and home and all the other things that people do besides complain to the great indifferent internets.

I have read many things in that time which have caused my blood to boil, yet one small comment from some ignorant fuckwit has pushed me over the edge.  As part of my non-pseudo-anonymous life I keep up with a number of computer security related things which is all good and fun.  Just a few days ago there was some shenanigans about some software put out by some big company - the details are really not all that important.  Looking over the comments I see:
It appears this flaw was irresponsibly disclosed, that is, the vendor was not consulted for producing a hotfix before dumping the details on the web. I think sw vendors should refuse to fix irresponsibly disclosed bugs or exploits and direct users to do whatever they want to the hackers in retaliation. Maybe corporates should even have a policy of hunting down vxers and hackers, who publish zero days. I can't see why a big company, richer than many small countries, shouldn't have the authority to dispose of their enemies with impunity, in the same way any small country can, if they have a secret service.

Anybody here see why big companies (or governments!) should not be able to dispose of their enemies with impunity?  Even if this is a contemporary Modest Proposal, I have had the misfortune of people share this very same notion after a drink or two.

Not sure exactly why this set me off, but with a little luck I might get a few things written in spite of myself.