government

Japan’s 99.8% criminal conviction rate

history, law, politics / /

From Hiroshi Matsubara’s “Trial By Prosecutor” (Legal Affairs: March/April 2003):

In 1990, a retired high-court judge gave an influential speech that indicted the criminal justice system [of Japan], citing the nation’s 99.8 percent conviction rate as evidence that prosecutors, not courts, decide the fate of criminals. Criminal trials, he declared, are merely “formal ceremonies” en route to conviction. …

Prosecutors are vested with tremendous authority, and courts routinely defer to prosecutorial judgment. The prosecutor, in collaboration with law enforcement, is expected not only to enforce the laws but to decide how to use them to serve the public good. He is given far broader powers of investigation than his American counterpart, including the ability to search, seize, and interrogate without the interference of defense counsel. Justice in Japan is often equated to cooperating with the prosecutor. One of the earliest changes made by legislators to the American legal framework was the addition of a “societal duty” to submit to questioning upon arrest.

Because of their importance in the Japanese system, prosecutors have an overwhelming need to be right. A single loss can end their career. Prosecutors nearly always go to trial with a confession in hand, meaning that criminal courts are rarely asked to decide guilt or innocence. At trial, the counsel for the defendant usually spends his time trying to demonstrate the client’s contrition, his chances of being rehabilitated, and the low risk he poses to society – factors that affect the sentence, not the verdict.

Even in contested cases, the outcome for defendants is bleak. In American federal courts, about one-fifth of all criminal defendants plead innocent – and of those, one-third are subsequently convicted (state numbers indicate a similar trend). Meanwhile, in Japan, despite the fact that only 7 percent of defendants choose to contest their prosecution, the conviction rate in such instances is still about 99 percent. …

But in the aftermath of this unlikely victory, the system turned on Mainali. A higher court stayed his acquittal and ordered him detained while the finding at trial was reconsidered. In the United States, where defendants are protected against double jeopardy, Mainali’s acquittal would have ensured that he went free. Japan has no such standard: The opportunity to appeal a criminal acquittal is just one more weapon in the prosecutorial arsenal. Critics have pointed out that the stigma of losing a case puts prosecutors under great pressure to appeal each and every acquittal. In the notorious Kabutoyama case, prosecutors spent 21 years unsuccessfully appealing not-guilty verdicts handed down against a teacher charged with killing one of her students. …

Japanese prison terms, for both violent and nonviolent offenses, are shorter than those for comparable crimes in the United States. Murder, for instance, can carry a sentence of as little as three years. What is indisputable, however, is that in failing to emphasize procedural justice – a system based on rights and vigorous advocacy – Japan entrusts the integrity of its system to the good judgment of its prosecutors.

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Social network analysis by the NSA

law, politics, tech in changing society, technology / /

From John Diamond and Leslie Cauley’s “Pre-9/11 records help flag suspicious calling” (USA TODAY: 22 May 2006):

Armed with details of billions of telephone calls, the National Security Agency used phone records linked to the Sept. 11, 2001 attacks to create a template of how phone activity among terrorists looks, say current and former intelligence officials who were briefed about the program. …

The “call detail records” are the electronic information that is logged automatically each time a call is initiated. For more than 20 years, local and long-distance companies have used call detail records to figure out how much to charge each other for handling calls and to determine problems with equipment.

In addition to the number from which a call is made, the detail records are packed with information. Also included: the number called; the route a call took to reach its final destination; the time, date and place where a call started and ended; and the duration of the call. The records also note whether the call was placed from a cellphone or from a traditional “land line.” …

Calls coming into the country from Pakistan, Afghanistan or the Middle East, for example, are flagged by NSA computers if they are followed by a flood of calls from the number that received the call to other U.S. numbers.

The spy agency then checks the numbers against databases of phone numbers linked to terrorism, the officials say. Those include numbers found during searches of computers or cellphones that belonged to terrorists.

It is not clear how much terrorist activity, if any, the data collection has helped to find.

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Colonialism at its most obvious

history, language & literature, politics / /

From Adam Goodheart’s “The Last Island of the Savages” (The American Scholar, Autumn 2000, 69(4):13-44):

Then [in the 1860s], suddenly, the hostilities [by the Andaman Islanders] ceased almost entirely. There was one cataclysmic battle – fifteen hundred naked warriors came charging out of the jungle, straight up against the guns of a British warship, with predictably ghastly results – and after that, only a few desultory clashes. Quite unaccountably, the natives started wandering out into the settlement and behaving like friends: odd, bright-eyed little people whose merry air suggested that they had forgotten there had ever been bloodshed. The Andamanese would ask for gifts (coconuts, bananas, and, before long, tobacco and liquor) and make amiable sport with the British soldiers, plucking at the brigadesmen’s red coats and pulling on their whiskers. They even began coming voluntarily to live in the “Andamanese Home,” an institution for their welfare that the British established on Ross Island.

But in some ways, their presence was now even more nettlesome than it had been before. The Andamanese had certain noteworthy talents, but few that could profitably be applied to the needs of a colonial settlement. They were excellent bow-men, amazingly proficient swimmers (some could even shoot arrows accurately while treading water), uncanny mimics, and skilled jungle trackers, able to communicate across miles of forest by banging out signals on the buttress roots of certain trees. So the British put them to use hunting down escaped convicts – a reasonable occupation, though hardly enough to occupy them full-time. A few of the natives were employed as nannies, since it was quickly noticed that they were remarkably affectionate with children, the Europeans’ as much as their own. Others were kept as objects of amusement in Port Blair households, to be dressed up and coddled – at least until their masters’ tours of duty ended, when they were left to fend for themselves. “The Government of [British] India,” one official noted approvingly, “[has] adopted a policy towards the aborigines of the Andaman Islands which has made them, above all races of savages, the most carefully tended and petted.” Here are some names given to Andamanese in the nineteenth century by the British, which I came across in various old documents: Topsy, Snowball, Jumbo, Kiddy Boy, Ruth, Naomi, Joseph, Crusoe, Friday, Tarbaby, King John, Moriarty, Toeless, Punch, Jacko, Jingo, Sambo, and Queen Victoria.

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Smallest state park in the USA

commonplace book, history, politics / /

From Gideon Lewis-Kraus’s “The Water Rush” (Oxford American):

Anywhere else, the four and a half acres of muddy, flat grass cross-hatched by asphalt paths and crowned by a green-pink-and-white gazebo would be the town park. Here in Berkeley Springs[, West Virginia], population 663, “the country’s first spa,” it is a state park. It is, in fact, the smallest state park in the nation. Along the embankment on the west side of the park is a camp of low-slung yellow-brick buildings that house the Berkeley Springs, font of the town’s hydrocentric entertainments. Besides the springs, the town’s attractions include antique malls, craft shops, acupuncturists, and a homeopathy museum.

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Soviet-style society & the US

politics / /

From Jim Marcinkowski’s “National Security: The Attack on the Constitution“:

Over the past 30 years, I have served this country in a variety of positions from the FBI to the CIA, and as a lawyer and a prosecutor …

We fought the Soviets and I fought the Soviets because they had a fatally flawed, intolerable system of government where (and think about this):

The government was always right and never apologized;

Any dissent was suppressed, ridiculed, banned or worse;

Secret prisons were denied and never acknowledged or spoken about;

The torture of captives (in Lubyanka) was condoned;

State incarceration was not subject to the checks and balances of a legal system;

Economic plans, like for oil, were established/determined in closed sessions between politicos, commissars and production managers, far outside public view, and where government claimed privilege in so doing;

Wages were set at the lowest common denominator, no matter what Bloc country you were in;

Government agents had access to your medical records, your library records, your telephone, and your e-mail.

A place where judicial power and judicial review were proclaimed concepts, but simply ignored in application;

Where criminal records of young adults were closed to all but the military;

Where a Constitution was a mere facade and ignored by state actors.

Any dissent, debate and protest were deemed unpatriotic;

The public media was bought, paid for, and provided by the state;

The military clandestinely and shamelessly influenced the national media and public opinion;

A place where wrong was declared right;

Where tapping a phone was like tapping a pencil;

Where lying was considered a patriotic skill;

The extraction of natural resources was paramount to any concern for the environment and the impact on the health of its people;

Where the use of “state secrets,” (those things embarrassing to the government) were confused with legitimate issues of “national security”;

A place where “secrecy” and “national security” were used to control debate;

Where legitimate secrecy, was subject to political use and abuse;

Where “legislators” were mere mouthpieces for and rubberstamps of whoever was in power;

Where you lived and died with the permission of the government;

A place where foreign policy was more important than domestic concerns;

Where fear was used as a political weapon and an acceptable means of control;

Where the best medical care was reserved for the influential;

Where wealth was concentrated in the top 5%;

A place where there was no middle class – just a small economic and political elite, and the working poor.

… Since 1995 the Republican Party and its friends in the American corporate structures that so vigorously contribute to and support them have – in the space of a decade – created in this country more than the beginnings of a system that this country spent 50 years trying to dismantle.

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Why it’s hard for prisoners to sue prison systems

history, law, politics, security / /

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

When inmates seek civil damages against the prison system, as [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] has done, they must prove not merely that prison officials should have done more to prevent abuse but that they showed “deliberate indifference” – that is, that they had actual knowledge that an inmate was at risk and disregarded it. Showing that a prison guard should have known is not enough, no matter how obvious the signs of abuse.

This standard was established by the Supreme Court in the 1994 case Farmer v. Brennan, in which a transsexual inmate imprisoned for credit card fraud sued federal prison officials for ignoring his rape behind bars. While the court affirmed that prison rape is a violation of an inmate’s constitutional rights and stated plainly that sexual assault is “not part of the penalty that criminal offenders pay for their offenses,” it set up formidable barriers to establishing the culpability of corrections staff. At the cellblock level, the “deliberate indifference” standard discourages prison guards from shining a light into dark corners. What they don’t know can’t hurt them.

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History & numbers on prison rape

history, law, politics, security / /

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

In his 18 months at [the maximum-security Allred Unit in Iowa Park, Tex.], [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] did time as the property of the Bloods, the Crips, the Mandingo Warriors, and the Mexican Mafia, all of whom forced him to have sex with their members. They also sold his services to other inmates, usually for between $5 and $10. (A cigarette in Allred goes for $1.50.) …

The prevalence of rape in prison is fearsome. Line officers recently surveyed in one southern state estimated that one in five male prisoners were being coerced into sex; among higher-ranking officials, the estimate was one in eight. Prisoners themselves estimated one in three. (Female prisoners are the victims of rape as well, though they are usually assaulted by male guards, not other inmates; the phenomenon of male-on-male prison rape is generally studied separately.) …

The traditional rationale for prison rape is the lack of women, but most psychologists consider this facile. They see prison rape mainly as a means by which people who have been stripped of control over the most basic aspects of their lives – when to eat a meal, take a shower, or watch TV – can reclaim some sense of power. As one Louisiana prisoner, Wilbert Rideau, wrote, “the psychological pain involved in such an existence creates an urgent and terrible need for reinforcement of [a prisoner’s] sense of manhood and personal worth.” Others believe that prisoners become rapists out of fear of becoming victims themselves; it’s a choice between becoming predator or prey. The psychologist Daniel Lockwood, in his study Prison Sexual Violence, calls this strategy “pre-emptive self-defense.” …

IN 1826, IN WHAT WAS LIKELY THE FIRST PUBLISHED MENTION of prison rape in the history of the republic, the Rev. Louis Dwight wrote that “Boys are Prostituted to the Lust of old Convicts” throughout the institutions he surveyed from Massachusetts to Georgia. Dwight, the founder of the Prison Discipline Society of Boston, a prison reform group, wrote that “Nature and humanity cry aloud for redemption from this dreadful degradation.” It was not until the 21st century, however, that the nation saw its first anti-prison-rape legislation.

Last year, Congress passed the Prison Rape Reduction Act, which allocates $60 million to support rape-prevention programs run by federal, state, and local corrections staff and to aid investigations and punishment of perpetrators. The bill, which enjoyed bipartisan support in the House and the Senate, also requires states to collect statistics on prison rape.

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Why courts don’t use legal-size documents any longer

history, law / /

From Suzanne Snider’s “Old Yeller” (Legal Affairs: May/June 2005):

The legal-size legal pad has been under attack since as early as 1982, when then Chief Justice Warren Burger banished legal-size documents from federal courts. One informal survey estimated Burger’s move saved almost $16 million through more efficient use of storage space. Several states followed the federal government’s lead …

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A history of the public notice

business, history, law, politics / /

From Sasha Issenberg’s “On Notice” (Legal Affairs: July/August 2005):

In the Middle Ages, the Crown designated a half-dozen sites in London where a herald would read proclamations from the king. These announcements first found their way into print in 1665 when the London Gazette, considered the first English-language newspaper (at least as we now understand the term), began publishing. It was the Crown that put out the Gazette, and thus the newspaper was little more than a broadsheet filled with public notices.

In the 1690s, private competition reached the London newsstand. Yet even those newspapers that were not published directly by the government continued to seek its consent and imprimatur. In 1704, across the Atlantic, a newspaper called The Boston Newsletter hit the streets of the Hub; like many early American newspapers, it bore the slogan, “Published by Authority.” Though newspapers had ceased to exist merely for the purpose of publishing government decrees, they continued to run the notices as proof of the papers’ journalistic credibility. “Unlike in our day, it was looked at as an act of authenticity,” says Charles Clark, a professor emeritus of history at the University of New Hampshire who wrote about early American newspapering in a book called The Public Prints.

Sometimes these announcements appeared under the rubric “Proclamations for Royal Government,” Clark explained, but usually papers “just printed the notices in what we would think of as the news columns – even though that distinction is a bit of a stretch for those days. In many instances the notices constituted the news.” (Toward the end of the 18th century, according to Clark, newspapers also began to feature private-sector legal announcements: creditors demanding payment were popular. “The most frequent things,” Clark said, chuckling, “are men putting in notices: ‘My wife is leaving my bed and board. I shall no longer be responsible for her debt.’ “) …

In 1789, among the acts of the first session of the Congress was a directive to the secretary of state to publish all bills, orders, resolutions, and votes in at least three newspapers.

For its efforts at transparency, the fledgling government was rewarded with an increasingly suspicious press. During the 1790s, the Philadelphia-based Gazette of the United States made it clear that government would not be left to speak for itself through notices; the paper placed a correspondent in Congress. “He reported what he saw, not the official words,” Clark said. After the election of George Washington, the colonial press that had cuddled with government gradually became American media that sought to establish distance from it. In addition to soliciting the government for announcements, the press began to cover the government journalistically. …

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The Mann Act as problematic law

history, law / /

From Roderick M. Hills, Jr.’s “The Federalist Capers” (Legal Affairs: May/June 2005):

BY CONTRAST WITH THE COURT’S RECORD IN ECONOMIC MATTERS, the pre-New-Deal court was oddly reluctant to impose any limits on federally sponsored cultural conservatism. The Mann Act, which prohibited any person from aiding in the interstate transportation of a “woman or girl” for “prostitution, or debauchery, or for any other immoral purpose,” provides a useful illustration of the limits that judicially enforced federalism will go to.

Congress enacted the Mann Act in 1910 by comfortable majorities, in the wake of a national furor over allegations that young women were being kidnapped by syndicates of brothels and forced to work as prostitutes. In retrospect, historians explain the panic over “white slavery” as largely attributable to anxieties over immigration (the syndicates were said to be run by foreigners, especially foreign Jews) and urbanization, which led to a rise in the numbers of unaccompanied single women visible in public places.

Although the act was inspired by fears of coerced prostitution, it was soon enforced by the federal government as part of a crusade against nonmarital sex in general. As David Langum has shown in Crossing Over the Line, a large majority of the FBI’s Mann Act investigations during the 1920s was for noncommercial offenses, typically prosecutions of unmarried but romantically involved couples who crossed state lines. Even the purpose of protecting women from coercion was soon dropped. The Department of Justice took the view that the female “victim” should generally be prosecuted as a co-conspirator if she consented to “immoral” travel. Charges were frequently foregone if the “victim” married the perpetrator, suggesting that the statute was really a federal effort to protect males’ control over their wives and daughters. Though the federal government abandoned the effort to enforce the Mann Act in the 1930s against noncommercial sex, J. Edgar Hoover later used it in raids on brothels to collect information about public persons, like Charlie Chaplin, whom he regarded as subversive.

In short, the Mann Act was everything that you would expect from centralized enforcement of sexual morality – oppressive, gratuitous, and subject to all the abuses of prosecutorial discretion. The regulation of interstate transportation was a thin pretext for federal intervention, given that the act’s authors surely were not concerned that the states were somehow incompetent to regulate sexual morality within their boundaries.

In light of all of these concerns, you might expect that the Supreme Court would have found the Mann Act to be an easy case for invalidation under principles of federalism. But the court unanimously upheld the act in 1913 in Hoke v. United States, and then also upheld its application to noncommercial consensual sexual liaisons four years later in Caminetti v. United States.

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Bird in Flight, Brancusi, & US Customs law

business, history, law / /

From Stéphanie Giry’s “An Odd Bird” (Legal Affairs: September/October 2002):

After a weeklong journey from France, crates of sculptures by Constantin Brancusi arrived in New York harbor on the steamship Paris, escorted by the artist Marcel Duchamp. It was October 1926 and the sculptures were to be exhibited in the city at the avant-garde Brummer Gallery. United States Customs officials opened the crates and uncovered 20 mysterious disks, eggs, and flame-like forms of carved wood, polished metal, or smooth marble. One work in particular left them dumbfounded: a thin, 4 1/4-foot-tall piece of shiny yellow bronze with a gently tapering bulge called Bird in Space. It didn’t look like a bird to the officials, so they refused to exempt it from customs duties as a work of art. They imposed the standard tariff for manufactured objects of metal: 40 percent of the sale price, or $240 (about $2,400 in today’s dollars). …

Under pressure, the customs office agreed to reconsider its decision. In the meantime, it released Bird in Space and other sculptures, on bond and under the classification “Kitchen Utensils and Hospital Supplies,” so they could be exhibited at the Brummer Gallery and then at the Arts Club in Chicago.

Both shows were successes, but in February 1927 the federal customs appraiser F.J.H. Kracke confirmed his office’s initial finding that any sculptures Brancusi sold in the United States, like Steichen’s Bird, would be subject to duty. In an interview with the New York Evening Post, Kracke explained his ruling: “Several men, high in the art world were asked to express their opinions for the Government…. One of them told us, ‘If that’s art, hereafter I’m a bricklayer.’ Another said, ‘Dots and dashes are as artistic as Brancusi’s work.’ In general, it was their opinion that Brancusi left too much to the imagination.”

The next month, Steichen filed Brancusi v. United States to appeal customs’ decision. Abstract Art was now on trial. …

Six influential figures testified for Brancusi: Steichen, who was an established photographer; the sculptor Jacob Epstein; Forbes Watson, the editor of the review The Arts; Frank Crowninshield, the editor of Vanity Fair; William Henry Fox, the director of the Brooklyn Museum of Art; and the art critic Henry McBride. The witnesses for the government, the sculptors Robert Aitken and Thomas Jones, now long forgotten, enjoyed great academic reputations at the time. Judge Young was new to the Customs Court. The 75-year-old Waite had been serving on it and its earlier incarnation, the Board of General Appraisers, for 25 years.

Also present in the courtroom as Exhibit 1 was the Bird, which sat on a table, shimmering and soaring toward the ceiling while the lawyers debated whether it was an “original sculpture” or a metal “article or ware not specially provided for” under the 1922 Tariff Act. For the Bird to enter the country duty-free under the act, Steichen’s lawyers had to prove that Brancusi was a professional sculptor; that the Bird was a work of art; that it was original; and that it had no practical purpose.

By 1927 and after four one-man shows in New York, there was little question that the 51-year-old Brancusi was recognized as a professional sculptor – controversial perhaps, but definitely well-known. There was also little question that the Bird had no utility, even though the customs office had released it under the classification “Kitchen Utensil.”

But because Brancusi had shown four other bird sculptures like Steichen’s at the Brummer show, it wasn’t clear whether Steichen’s was the only one of its kind. And it was far from clear whether the Bird could be called art, because it looked like nothing anyone had ever seen before.

During the hearing, Judges Young and Waite placed great emphasis on the Bird’s title. The Tariff Act didn’t require that sculptures be realistic, but under a 1916 Customs Court decision called United States v. Olivotti sculptures qualified as art works only if they were “chisel[ed]” or “carve[d]” “imitations of natural objects,” chiefly the human form representing such objects “in their true proportions.” …

When he was 26, according to legend, Brancusi set out on foot on the 1,200-mile journey to Paris; however he got there, in 1904 he enrolled at the prestigious école des Beaux Arts. The decade that followed was marked for him by poverty, hard work, and eventually a place in the avant-garde community among Duchamp, Ezra Pound, Amedeo Modigliani, and Erik Satie, who would become his friends and transforming influences. At an exhibit in Paris in 1906, Auguste Rodin, then the towering figure in sculpture, spotted one of Brancusi’s pieces and invited him to work in his studio. Brancusi declined because he believed “nothing grows well in the shadow of a big tree.” …

But to Thomas Jones, a professor at Columbia who testified for the customs office, the Bird was “too abstract and a misuse of the form of sculpture.” Robert Aitken, the government’s other witness, said that art should “arouse an unusual emotional reaction” and “[stir] the esthetics, the sense of beauty.” …

Every work [by Brancusi] was unique and made of a different material, with different proportions and a different harmony. Brancusi had carved variations of the Bird out of white, yellow, and black marble and bronze of varying composition, each time coaxing the stone or the metal to reveal something new about the form. As Brancusi explained, all of those pieces were part of the same search: “All my life I’ve been looking for one thing, the essence of flight.” …

The court’s sensibility favored Brancusi. In its decision of November 1928, drafted by Judge Waite, the court held:

The object now under consideration … is beautiful and symmetrical in outline, and while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental, and as we hold under the evidence that it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to, we sustain the protest and find that it is entitled to free entry.

Judge Waite’s decision was seen as a victory not only for Brancusi but also for avant-garde art, because it dismissed the Olivotti requirement and recognized the importance of a new school that “portray[ed] abstract ideas rather than … imitate natural objects.” …

But the decision’s focus on the decorative qualities of the Bird made the ruling just as perishable as the standard in the 12-year-old one it replaced. And its reliance on the judges’ personal taste made its application perhaps more arbitrary and restrictive. Many of the works that made the renown of Duchamp, the chaperon of the Bird on its trip to New York and one of its staunchest defenders, would not have passed the test, for example. Duchamp’s “ready-made” sculptures of a bottle rack (Bottle Dryer, 1914) and a urinal (Fountain, 1917), objects he borrowed from daily life and, with more than a hint of irony, labeled works of art, would not have satisfied Judge Waite’s taste for the “beautiful,” “symmetrical,” and “ornamental.”

The Brancusi decision may have done away with the requirement that sculptures must be figurative to be art, but it took years for customs law to shed other unreasonable limitations on the free import of artwork. In 1931, tapestries were deemed dutiable because they were made of wool – the material determined the artistic merit. In 1971, the customs court found that six carved door panels destined for a church were dutiable because, as part of the doors, they were utilitarian objects. It wasn’t for 61 years, until the Harmonized Tariff Schedule of 1989, that customs law allowed free entry to works that are both artistic and functional.

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iSee: online map of CCTVs in Manhattan

law, politics, security, tech in changing society / /

From Patrick Keefe’s “Camera Shy” (Legal Affairs: July/August 2003):

One extralegal solution is a project called iSee. Launched several years ago, iSee is an online interactive map of the locations of surveillance cameras in Manhattan. To use iSee, you simply open the map of Manhattan and double-click on your point of departure and your destination. After a few moments of computation, iSee generates the “path of least surveillance.”

iSee can be accessed through the website of the organization which created it, the so-called Institute of Applied Autonomy. IAA is a collective of artists, engineers, and scientists who design technologies for the “burgeoning market” of “cultural insurrection.” The organization presents itself as a tech-savvy civil libertarian answer to the Defense Advanced Research Projects Agency, a shadowy R&D wing of the Pentagon. DARPA has recently been in the news for developing the Terrorist Information Awareness project, headed by John Poindexter, which would monitor the everyday transactions of American citizens. Whereas DARPA uses what IAA calls “tools of repression” to take your autonomy away, IAA answers with another set of tools that are intended to give you your autonomy back. …

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Your job? Waiting in line for others.

business, law, politics, weird, writing ideas / /

From Brian Montopoli’s “The Queue Crew: Waiting in line for a living” (Legal Affairs: January/February 2004):

ON CAPITOL HILL, a placeholder is someone paid by the hour to wait in line. When legislative committees hold hearings, they reserve seats for Congressional staffers, for the press, and for the general public. The general-public seats are the only ones available to the so-called influence peddlers, the Washington lawyers and lobbyists whose livelihood depends on their ability to influence legislation. These seats are first come, first served, which is where the placeholders (also called “stand-ins” or “linestanders”) come in. Since most lobbyists and lawyers seeking to rub shoulders with lawmakers don’t have time to wait in line themselves, they pay others to do it for them.

Rather than use an independent contractor, most influence peddlers secure placeholders through one of the two companies that control about 80 percent of the market: Congressional Services Company and the CVK Group, both of which have rosters of on-call placeholders at the ready. Most of the time, placeholders are asked to wait for just a few hours, often arriving around 5 a.m. to wait for hearings scheduled for 10 a.m. If seats are in great demand, however, placeholders can be asked to get in line several days in advance. Congressional Services charges its clients $32 to $40 per hour for each placeholder, and the placeholders themselves make $10 to $15 an hour. …

For the sake of logistics and appearances, the lines usually form outdoors and stay there until a few hours before a hearing. …

Today, however, most placeholders are not nimble students out to earn a little spending money but older men and women trying to make ends meet. Jim Keegan is one of the “Van Gogh veterans,” a group of placeholders discovered by Congressional Services in 1998 when they were standing in line to get coveted free tickets to the Van Gogh exhibit at the National Gallery of Art. …

Now he said he has time to pursue his interests and get paid. “I’ll probably make $2,000 to $3,000 in a good month,” he said. “That’s more than I made at my old job.”

There is a collegial atmosphere among the placeholders – if you leave to go get something to eat, you aren’t going to lose your spot – but simple tasks like going to the bathroom present challenges. During the day, placeholders can go into the Rayburn Building, but after hours they have to make their way over to the public bathrooms at Union Station. Getting sleep is also a problem. Since the lines form on public sidewalks, placeholders are technically not allowed to sit down, and though the Capitol Hill police often ignore them, there are evenings when an overzealous officer will repeatedly wake them up and tell them to stand. …

Once, a group upset over banking regulations brought busloads of protesters to a hearing, only to discover that they wouldn’t be able to get in, thanks to the placeholders. A scuffle ensued, but the placeholders held their ground.

In general, however, most staffers and politicians don’t even notice the placeholders they pass on their way to work. …

Since hearings can be rescheduled or closed to the public at the last minute, the placeholding services insist on getting paid regardless of whether their clients succeed in getting in. Keegan and Herzog’s long wait, for example, ended before they could pass along their spots to their clients: The housing hearing was cancelled because of partisan infighting, and after two days and 20 hours of waiting, the placeholders were sent home on Tuesday at 6:30 p.m.

The next morning, however, after showers and a change of clothes, many of them were back, this time to wait for a healthcare hearing before the Commerce Committee. When I arrived at the Rayburn Building at 9 a.m., over 70 people were waiting to get into the hearing, and by 10, when it was scheduled to start, there were more than 200. The line began around the corner from the hearing room and snaked past elevator banks and Congressional offices. At the front were mostly placeholders, among them a bored-looking young man with red sneakers and a hat worn sideways and a woman in her late 30s wearing a frayed sweatshirt that read “OJ SIMPSON: JUICE ON THE LOOSE.” …

Thirty minutes before the hearing began, the clients started showing up. The placeholders were identified by placards or by assistant managers who worked the line. A bald white man in his 40s with a yellow tie and an expensive suit took his spot and thanked his placeholder. (Congressional rules prohibit tipping.)

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Modern mercenaries

business, history, law, politics, security / /

From Rebecca Ulam Weiner’s “Sheep in Wolves’ Clothing” (Legal Affairs: January/February 2006):

YOU WON’T FIND THE WORD “MERCENARY” on the homepage of the International Peace Operations Association, the trade group for the private military industry. While many of the IPOA’s member companies are staffed by elite former soldiers of the United States military who now make a living hiring themselves out, the so-called “M word” isn’t in the IPOA’s corporate vocabulary. Members are known as private military companies (often called PMCs) or military service providers, who specialize in “private peace operations.” …

In recent years, private contractors have increasingly taken on important military functions, operating in some 50 countries and earning an estimated $100 billion in annual revenue. They provide security to civilian aid workers, other contractors, and even military forces. They train local armies for combat, develop future American soldiers (the firm MPRI helps run ROTC), and interrogate prisoners. At times, they’ve engaged in combat. During the invasion and occupation of Iraq, the U.S. has relied heavily on their support – private contractors make up a workforce of about 20,000, double the British troop presence. …

During the Iraq war, contractors have run the computers that control Predator drones, operated guided missile systems on naval ships, and maintained aerial surveillance and communications systems. In the Persian Gulf war of 1991, the ratio of soldiers to contractors was 50 to 1. In the current Iraqi conflict, it is 10 to 1 and falling.

This proliferation has worried many – in the academy, Congress, the media, and, increasingly, the military – because contractors operate outside the military chain of command and most legal jurisdictions. PMCs have no clear place under the framework of the Geneva Conventions – they aren’t noncombatants, because they carry weapons, but they aren’t lawful combatants, because they don’t wear uniforms. Nor do they fit the anachronistic definitions of mercenaries found in international treaties and resolutions, because those definitions generally require engagement in direct combat.

Soldiers are subject to rules of engagement and can be court-martialed for breaking the law. Contractors are governed most directly by the terms of their contracts – their extraterritorial activities and corporate status make them virtually immune from federal law. …

Worse, critics argue, because the military has no direct control over its contractors, it won’t accept responsibility for their actions. And PMCs allow the Pentagon to evade accountability to Congress, because they circumvent caps on the number of troops approved for deployment and their casualties aren’t counted.

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James Jesse Strang, Mormon King of Michigan

history, politics, religion / /

From Geoffrey Gagnon’s “King James I, of Michigan” (Legal Affairs: September/October 2005):

One letter that isn’t on display is the one that James Jesse Strang said he received from Smith just before the Mormon leader was murdered in June 1844. In the letter, which now resides in a university library, Smith bequeaths the nascent Mormon Church to Strang – a new friend, a Mormon of just five months, and, of all things, a lawyer. “If evil befall me,” Smith wrote to Strang in the letter, “thou shalt lead the flock to pleasant pastures.”

Strang’s rivals, among them Brigham Young, dismissed the missive as a forgery and Strang as an unworthy successor to Smith. Yet a couple of hundred church members – Joseph Smith’s widow, mother, brother, and sisters among them – believed the letter was authentic and that it granted church leadership to Strang. A disgusted Brigham Young took his followers west to Utah and built what is now the fastest growing religion in the United States. Strang took his followers to a remote island in Lake Michigan and declared the place his sovereign kingdom.

Hold up the palm of your right hand and you’re looking at a map of Michigan’s lower peninsula. Thirty miles off the coast of your ring finger sits Beaver Island, a 55-square-mile island on the inland sea of Lake Michigan. Only one building survives from Strang’s sojourn, a museum in which Strang artifacts fill one room. …

An old metal press, long since disappeared, once filled the building’s big front room. Strang used the press to spit out the Northern Islander, the region’s first newspaper, and to print his magnum opus, The Book of the Law of the Lord. The long-winded tome of decrees includes what Strang described as the lost transcription of the meeting between Moses and God on Mount Sinai. …

He settled, for the time being, on being a lawyer. “I should rather be the best hunter in an Indian tribe than a commonplace member of the New York bar,” he wrote. But a decade of legal practice yielded little more than common accomplishments, and little more power than that which was afforded him in his capacity as the postmaster of Chautauqua County. …

Strang met the church’s leader after making the acquaintance of Smith’s brother Aaron, who lived near Strang in Wisconsin. Initially, he wasn’t impressed with Joseph Smith, describing him in his diary as a man of “meager education.” Smith, however, seems to have been smitten with Strang’s intelligence. Within weeks of meeting Strang, Smith baptized him, and just weeks after that, he named him a church elder.

Strang, who as a teen was tossed out of the local Baptist church for questioning its precepts, had called himself the “perfect atheist” before moving West, but once on the frontier he realized he might command from the pulpit the power that had eluded him. Strang didn’t bother to familiarize himself with Mormon doctrine until long after he was a church leader. …

In June of 1844, an anti-Mormon crowd killed Joseph and Hyrum Smith. At the instant Smith met his demise, Strang claimed that he received a visit from an angel who anointed his head with oil and declared him the leader of the Mormons. A few days later, a letter to the same effect, purportedly mailed by Joseph Smith before his death, arrived in Strang’s hand. His years as a postmaster, perhaps, had not been wasted. …

Strang and his followers arrived on Beaver Island in the spring of 1847 and spent three difficult summers recruiting followers before he was convinced he had enough subjects to make a respectable kingdom. In 1850, with 200 followers on hand in an unfinished log tabernacle, Strang enlisted a traveling Shakespearean actor named George Adams to muster all the pomp and circumstance he could. Strang appeared before an audience of several hundred on a moss-stuffed seat, wearing a giant red flannel robe trimmed in white. Adams came before the crowd and placed a makeshift crown on Strang’s head, anointing him King James the First. Taking hold of a two-foot wooden pole, Strang returned the favor and named Adams his prime minister.

IN THE SPRING OF 1851, NOT YET A YEAR after Strang had taken royal possession of Beaver Island, the sound of waves helped cover the midnight approach of a rowboat full of troops and U.S. Marshals. Carrying government-issue revolvers, the men slipped toward the glow of an oil lamp in a square log house. Expecting a fight, they instead found the small village of St. James asleep. Marines lay on the deck of the iron-hulled Michigan, armed and ready to charge the beach. But no shots were fired. Within an hour of coming ashore, the landing party had matter-of-factly taken the king into custody. …

President Millard Fillmore, who had entered office the day after Strang’s coronation, reportedly received news of the frontier king from his brother, Charles Fillmore, who lived in Detroit. He soon began hearing about the king from prominent members of his party as well, who pressured the president to take action. Among them was Abraham Lincoln’s 1858 Senate rival, Stephan Douglas, who was wary of giving the South a secession movement to point to in the North. Fillmore instructed his attorney general and the secretary of the Navy to arrest the king. …

Judge Ross Wilkins told the prosecution that because the king and his followers hadn’t engaged in war against the United States or aided enemies of the nation in doing so, the king couldn’t be convicted of treason. That left the federal government with charges against Strang of trespassing on federal land, counterfeiting coins, and obstructing the mail. …

The next morning they delivered a verdict of not guilty. …

STRANG RETURNED FROM DETROIT AND DECLARED HIS TRIAL VICTORY a mandate for his absolute rule. He modernized the kingdom with roads (the King’s Highway, recently resurfaced, is still traveled), managed a lumber export business and a booming fishing trade, and enacted progressive conservation laws (“Ye shall preserve the trees by the wayside. And if there be none, ye shall plant them”). He even appointed garbagemen to keep the kingdom clean.

A year after his win in court, Strang won election to the Michigan Legislature, representing the island and a huge swath of the northern woods, and he commuted to the mainland to serve a pair of two-year terms. He deigned to recognize Michigan’s government, he said, because he saw that as engaging in international relations with a neighboring country. …

After his court victory, Strang’s absolute power began to corrupt him, if not quite absolutely, then bizarrely. He had a fixation with fashion that led him to decree that, for reasons of health, women should wear only loose fitting, knee-length bloomers as opposed to anything that “pinches or compresses the body or limbs.” The king’s stance, and the resulting uproar, unraveled the kingdom. When a collection of outspoken wives refused to don their new pants, Strang had their husbands flogged with a willow whip for “endeavoring to incite mischief and crime.” He reprimanded his subjects in print as well. “We laugh in bitter scorn at all these threats,” he wrote, using the royal we, in what proved to be one of the final issues of the Northern Islander.

Less than two weeks later, a mob of angered husbands, still smarting from their willow lashings, ambushed the king. Strang was pistol-whipped and then felled by an assassin’s bullet. … When Strang fell, pillaging mainlanders flooded the island to drive the Mormons away. The kingdom was scattered and soon forgotten to all but a handful of us Michiganders.

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Posse Comitatus Act

history, law / /

From Geoffrey Klingsporn’s “The Secret Posse” (Legal Affairs: March/April 2005):

What do these scenarios have in common? Under current military policy, both fall under the heading of “Information Operations,” officially defined as “actions taken to affect adversary information and information systems while defending one’s own information and information systems.” …

The law that, in effect, prevents the Army from acting as a national police force is the Posse Comitatus Act, an 1878 statute that prohibits law enforcement officers from using military personnel as a posse comitatus—Latin for “power of the county” or, in the vernacular of the Old West, a “posse”—to enforce domestic law, except with the express authorization of the president or Congress. …

“The use of military forces to seize civilians,” wrote the U.S. Court of Appeals for the Eighth Circuit, “can expose civilian government to the threat of military rule and the suspension of constitutional liberties,” and can chill free speech and other fundamental rights, creating the atmosphere of an enemy occupation. …

Since the 1980s, though, the statute has been weakened by laws that allow the military to help address the problems of drug trafficking, natural disasters, and terrorist attacks. It is now routine for soldiers and sailors to help state and local police with training, equipment, and logistics; to detect and monitor suspected smugglers; and to keep order in disaster areas. … But the courts generally have ruled that it is well within the discretion of the president and Congress to allow the military to help in nonmilitary situations, including cases of terrorism. In 1988, a federal district judge in Washington, D.C., ruled that the Posse Comitatus Act was not violated when the FBI used the Navy to help capture a suspected terrorist in international waters and transport him to the United States.

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The TSA acts outside the Constitution

law, politics / /

From Ars Technica’s “Terrorist watch list follies, and my time in the TSA’s Constitution-free zone“:

So what are your rights if your name is unjustly on the watch-list, and you’d like to be able to move about the country without being singled out by airport screeners and possibly even traffic cops for extra attention? The answer is, unfortunately, that some of your basic Constitutional rights are effectively non-existent if you happen to get caught somewhere in America’s growing terrorist dragnet.

As of right now, there aren’t many rules to which you can appeal for redress—no laws aimed at protecting the accused, no binding judicial decisions, and few formal departmental protocols for addressing grievances. The kinds of rules and precedents that govern most of the other citizen-facing aspects of the federal bureaucracy just aren’t there when it comes to anything terrorism and/or TSA-related. …

To sum up, if you run afoul of the nation’s “national security” apparatus, you’re completely on your own. There are no firm rules, no case law, no real appeals processes, no normal array of Constitutional rights, no lawyers to help, and generally none of the other things that we as American citizens expect to be able to fall back on when we’ve been (justly or unjustly) identified by the government as wrong-doers.

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Matching identities across databases, anonymously

security, technology / /

From MIT Technology Review‘s’ “Blindfolding Big Brother, Sort of“:

In 1983, entrepreneur Jeff Jonas founded Systems Research and Development (SRD), a firm that provided software to identify people and determine who was in their circle of friends. In the early 1990s, the company moved to Las Vegas, where it worked on security software for casinos. Then, in January 2005, IBM acquired SRD and Jonas became chief scientist in the company’s Entity Analytic Solutions group.

His newest technology, which allows entities such as government agencies to match an individual found in one database to that same person in another database, is getting a lot of attention from governments, banks, health-care providers, and, of course, privacy advocates. Jonas claims that his technology is as good at protecting privacy as it as at finding important information. …

JJ: The technique that we have created allows the bank to anonymize its customer data. When I say “anonymize,” I mean it changes the name and address and date of birth, or whatever data they have about an identity, into a numeric value that is nonhuman readable and nonreversible. You can’t run the math backwards and compute from the anonymized value what the original input value was. …

Here’s the scenario: The government has a list of people we should never let into the country. It’s a secret. They don’t want people in other countries to know. And the government tends to not share this list with corporate America. Now, if you have a cruise line, you want to make sure you don’t have people getting on your boat who shouldn’t even be in the United States in the first place. Prior to the U.S. Patriot Act, the government couldn’t go and subpoena 100,000 records every day from every company. Usually, the government would have to go to a cruise line and have a subpoena for a record. Section 215 [of the Patriot Act] allows the government to go to a business entity and say, “We want all your records.” Now, the Fourth Amendment, which is “search and seizure,” has a legal test called “reasonable and particular.” Some might argue that if a government goes to a cruise line and says, “Give us all your data,” it is hard to envision that this would be reasonable and particular.

But what other solution do they have? There was no other solution. Our Anonymous Resolution technology would allow a government to take its secret list and anonymize it, allow a cruise line to anonymize their passenger list, and then when there’s a match it would tell the government: “record 123.” So they’d look it up and say, “My goodness, it’s Majed Moqed.” And it would tell them which record to subpoena from which organization. Now it’s back to reasonable and particular. ….

TR: How is this is based on earlier work you did for Las Vegas casinos?

JJ: The ability to figure out if two people are the same despite all the natural variability of how people express their identity is something we really got a good understanding of assisting the gaming industry. We also learned how people try to fabricate fake identities and how they try to evade systems. It was learning how to do that at high speed that opened the door to make this next thing possible. Had we not solved that in the 1990s, we would not have been able to conjure up a method to do anonymous resolution.

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Developing nations stand up to US/UN bullying on copyright

law, politics, tech in changing society / /

From “Statement by India at the Inter-Sessional Intergovernmental Meeting on a Development Agenda For WIPO, April 11-13, 2005” (emphasis added):

“Development”, in WIPO’s terminology means increasing a developing country’s capacity to provide protection to the owners of intellectual property rights. This is quite a the opposite of what developing countries understand when they refer to the ‘development dimension’. The document presented by the Group of Friends of Development corrects this misconception – that development dimension means technical assistance.

The real “development” imperative is ensuring that the interest of Intellectual Property owners is not secured at the expense of the users of IP, of consumers at large, and of public policy in general. …

The legal monopoly granted to IP owners is an exceptional departure from the general principle of competitive markets as the best guarantee for securing the interest of society. The rationale for the exception is not that extraction of monopoly profits by the innovator is, of and in itself, good for society and so needs to be promoted. Rather, that properly controlled, such a monopoly, by providing an incentive for innovation, might produce sufficient benefits for society to compensate for the immediate loss to consumers as a result of the existence of a monopoly market instead of a competitive market. Monopoly rights, then, granted to IP holders is a special incentive that needs to be carefully calibrated by each country, in the light of its own circumstances, taking into account the overall costs and benefits of such protection. …

The current emphasis of Technical Assistance on implementation and enforcement issues is misplaced. IP Law enforcement is embedded in the framework of all law enforcement in the individual countries. It is unrealistic, and even undesirable to expect that the enforcement of IP laws will be privileged over the enforcement of other laws in the country. Society faces a considerable challenge to effectively protect, and resolve disputes over, physical property. To expect that the police, the lawyers and the courts should dedicate a sizable part of society’s enforcement resources for protecting intangible intellectual property, is unrealistic. …

In conclusion, it is important that developed countries and WIPO acknowledge that IP protection is an important policy instrument for developing countries, one that needs to be used carefully. While the claimed benefits of strong IP protection for developing countries are a matter of debate – and nearly always in the distant future – such protection invariably entails substatial real an immediate costs for these countries. In formulating its IP policy, therefore, each country needs to have sufficient flexibility so that the cost of IP protection does not outweigh the benefits.

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