Thursday, March 29, 2007

REAL Spyware

Holy shit. I guess this shouldn't be that much of a surprise, but it's still shocking to see it spelled out in black and white. A few quotes:

The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone's microphone and using it to eavesdrop on nearby conversations.

The technique is called a "roving bug," and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family who were wary of conventional surveillance techniques such as tailing a suspect or wiretapping him.

Kaplan's opinion said that the eavesdropping technique "functioned whether the phone was powered on or off." Some handsets can't be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.

Nextel and Samsung handsets and the Motorola Razr are especially vulnerable to software downloads that activate their microphones, said James Atkinson, a counter-surveillance consultant who has worked closely with government agencies. "They can be remotely accessed and made to transmit room audio all the time," he said. "You can do that without having physical access to the phone."

A BBC article from 2004 reported that intelligence agencies routinely employ the remote-activiation method. "A mobile sitting on the desk of a politician or businessman can act as a powerful, undetectable bug," the article said, "enabling them to be activated at a later date to pick up sounds even when the receiver is down."

Surreptitious activation of built-in microphones by the FBI has been done before. A 2003 lawsuit revealed that the FBI was able to surreptitiously turn on the built-in microphones in automotive systems like General Motors' OnStar to snoop on passengers' conversations.

When FBI agents remotely activated the system and were listening in, passengers in the vehicle could not tell that their conversations were being monitored.


Friday, March 23, 2007

Executive Privilege

Bob Woodward and Carl Bernstein came to UT today to speak about Watergate and its ongoing relevance. I requested the afternoon off to attend both sessions of their discussion, it was granted, and I showed up early (doors were at 1:30 for the 2:00 session, I was there shortly after 1:00). We just barely missed getting seats, and then they tried to display it on a large screen in the atrium, but the sound wasn't working. It was an all-around debacle for many more reasons than that, and in addition to the details that were mishandled, I would like to know who had the idea to schedule such a large event (which was also open to the public for free) at an auditorium that barely seats 200 people. Sigh. I'm told I'll be able to catch it on C-SPAN.

Anyways, here is something that would have been relevant, from Knowledge News:

Friends, President Bush and Congress are on a constitutional collision course. At issue: whether high-ranking White House aides should have to give congressional testimony--in public, on the record, and under oath--over the firings of eight United States attorneys.

The White House has offered to allow the aides to testify in private, off the record, and "without the need for an oath." Congressional Democrats say that's not good enough--and that they're ready to issue subpoenas to compel public testimony. President Bush says he'll fight any such subpoenas in court, claiming "executive privilege."

What's executive privilege? Basically, it's the right presidents and their executive-branch cohorts claim to keep certain information secret, even from Congress. The phrase doesn't appear in the U.S. Constitution. In fact, it wasn't commonly used until the 1950s. But the idea goes all the way back to George Washington--and to foundational arguments about the "separation of powers" in American government.

So, in pursuit of perspective, we'll look back at how presidents Washington and Jefferson staked claims to executive privilege. Then we'll turn to more recent times, when President Eisenhower faced down Joseph McCarthy, and President Nixon got caught on tape.

George Washington Wouldn't Jay-Walk

By the 1790s, tension between the newborn United States and Great Britain had escalated to the point that many leaders feared a return to war. So, in 1794, President Washington sent John Jay--first chief justice of the U.S. Supreme Court, co-author of The Federalist Papers, and all-around American patriot--on a mission to England. There, Jay negotiated a treaty, now called the Jay Treaty, that more or less resolved the key disputes.

That was the good news. The bad news was that Jay's treaty was highly unpopular on the home front--especially with the Jeffersonians, who portrayed it (and Jay) as a sellout to England. Despite Washington's support, crowds burned Jay in effigy and threw stones at treaty entreaters like Alexander Hamilton.

Eventually, the House of Representatives sent a request to President Washington for documents pertaining to the Jay Treaty negotiations. Setting precedent, Washington effectively told the House to take a hike. Reasoning that senators had a constitutional role to play in the ratification of treaties, Washington agreed to share the documents with them, but not with representatives in the House. Simply put, it was none of their constitutional business.

Thomas Jefferson Got Stuck on Burr

Thomas Jefferson followed Washington's lead during Aaron Burr's treason trial in 1807. Burr had been Jefferson's vice president from 1801 to 1805, but by 1807 he had fallen far from any kind of grace. After killing Alexander Hamilton in a duel in 1804, Burr had plotted with James Wilkinson to invade Mexico and launch a western empire all their own. Wilkinson ratted Burr out to Jefferson, and soon the former VP was on trial for treason.

During his trial, Burr asked the court to compel Jefferson to turn over private letters concerning Burr, one of which Burr claimed would exonerate him. Jefferson said that producing the documents might jeopardize public safety. And anyway, it wouldn't be right to disclose "a mixture of rumors, conjecture, and suspicions." Sound familiar? Those are pretty much the two main arguments for executive privilege today: the need to keep the nation secure, and the need to keep executive-branch officials speaking freely and frankly to each other, without worrying that what they say is "on the record."

Nevertheless, Chief Justice John Marshall (the founding father of judicial review in the United States) ruled that Burr's Sixth Amendment rights--particularly the right to compel witnesses to appear at his trial--trumped Jefferson's claim of privilege. What's more, Marshall ruled, the Supreme Court should say whether revealing such documents imperiled public safety, not the president himself.

In the end, Jefferson produced the documents, but he made a point of doing so "voluntarily"--that is, he turned the letters over without admitting that the Court had the authority Marshall claimed for it. Incidentally, Burr was exonerated: nothing treasonous to the United States about launching an ill-advised invasion of Mexico, even if you are the ex-vice president.

Ike Says "Not Gonna Do It"

President Eisenhower is hardly famous for activist policymaking, but when it comes to executive privilege, he played a crucial creative role. Previous administrations had generally assumed at least some form of executive-branch privilege. But the Eisenhower administration took this largely tacit prerogative and turned it into an explicit policy position. They called it "executive privilege," and they used it first and foremost to fight Senator Joseph McCarthy.

McCarthy and Eisenhower were both Republicans, but there was no love lost between them. Ike once reportedly told his aides that he would not "get into the gutter with this guy." Yet in 1954, he did. McCarthy had set out to expose communists in the U.S. Army, and Eisenhower--the old general--thought that went too far. So, his staff got down-and-dirty by revealing embarrassing information about McCarthy's efforts to obtain preferential treatment from the Army for an aide.

McCarthy struck back, demanding to see documents pertaining to meetings between the Eisenhower administration and Army officials. Eisenhower's response was unequivocal: "It is not in the public interest," he said, for the administration to disclose "any . . . conversations or communications, or any documents" concerning the ongoing business of the executive branch. To a group of Republican lawmakers, he put the point even more bluntly: "Any man who testifies as to the advice he gave me won't be working for me that night."

McCarthy never mounted a legal challenge against Eisenhower's claim--possibly because, by the end of 1954, the Senate was censuring him for unbecoming conduct. The Eisenhower administration, however, continued to insist upon its "executive privilege." They denied congressional requests more than 40 times between 1955 and 1960, setting a record for executive-privilege claims that stands today.

Nixon Gets Caught on Tape

If Eisenhower expanded executive privilege, his former vice president, Richard Nixon, nearly discredited it. As the Watergate scandal unfolded, President Nixon repeatedly employed executive privilege as a means to stonewall the Senate investigation. First, he claimed executive privilege to prevent aides from testifying. Later, he tried to use it to withhold tapes of White House conversations that would ultimately prove his undoing.

When Watergate special prosecutor Leon Jaworski demanded that Nixon turn those tapes over in 1974, the case went to the Supreme Court, and the Court made its most definitive statement on executive privilege ever. In a unanimous 8-0 decision (with Nixon-nominee William Rehnquist abstaining), the Court ruled against the president, but explicitly recognized the validity of the executive-privilege claim.

"The president's need for complete candor and objectivity from advisors calls for great deference from the courts," wrote Chief Justice Warren Burger. Indeed, "the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties . . . is too plain to require further discussion." Nevertheless, "neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, . . . can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances."

In this case, the Court ruled that the specific interests of criminal justice and due process simply outweighed the president's generalized claim to privilege. Nixon was forced to turn the tapes over. He resigned a few weeks later.

--Steve Sampson


Good Call

is a good article on a recent First Amendment case. Basically:

A federal judge in Philadelphia yesterday ruled against a 1998 U.S. law that makes it a crime for operators of Internet sites to let anyone under 17 have access to sexual material, rebuffing the government's argument that software filters are ineffective and upholding earlier rulings that the law infringed on free-speech rights.
The crux of Reed's argument is that there is no effective way for a Web site owner to screen out minors, and to avoid risk of criminal penalties, the sites would self-censor. Free speech advocates say that could result in a loss of appropriate and valuable content for adults, including information about safe sex or art galleries with modern photography.

Well done. The article does a pretty good job of explaining the decision's sound reasoning, including this quotation from the judge: "Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection." I also like the comment by an ACLU lawyer, asking if we would really want "the entire Web [to be] homogeneous and bland so that a 6-year-old could read everything on the Web without anyone objecting." Succinct.

There have always been places which no responsible parent would let their child explore without supervision. Consider a construction site: while the site managers may very well be required to take some reasonable measures to secure their site from mischievous trespassers (and would probably have good economic reasons to do so even were it not required), if a determined kid gets in there and hurts himself, who else but the parents could you reasonably hold responsible? We all know that nothing is truly childproof, even with a far more restrictive definition of child than "anyone under eighteen". Accordingly we don't put the onus of complete protection (an impossibility) on the party who merely supplies the opportunity for harm, because kids should know better than to mess around there in the first place (a [parental] responsilibity). Why, then, should the common sense notion of parental responsibility not apply to virtual areas as well?

It also mentions that about half of the sexually explicit web sites on the net originate overseas, and are thus not subject to this law. So in terms of its ostensible goal of protecting children from pornography (I am tempted to put scare quotes around "protecting," since I and everyone I know have seen scads of porn and have not become raging sociopaths because of it, but I'll give them the benefit of the doubt and assume that porn is indeed the root ailment of my oh-so-depraved psyche), it is a purely symbolic gesture. However, in terms of its consequences for what is almost certainly our most valuable freedom, that which preserves all the others, it is deeply significant. The hypocrisy of the self-proclaimed champions of the children cynically using the emotional appeal of said children to promote a political agenda is tough to swallow.

One more thing:
Government attorneys are reviewing the decision and have not decided whether to appeal, Justice Department spokesman Charles Miller said.

The law was blocked from taking effect in 1998, and a number of courts since then, including the Supreme Court, have upheld the injunction. Reed's ruling comes after a four-week trial last October.

If the courts have spoken on this a number of times then how, and WHY, is it being revisited? The Constitution is going to win this one, guys. I suggest you focus on your parenting, because legal scholars you will never be.

Non sequitur PS: The Republicans pulled a dirty trick to prevent DC from getting a house seat. Taxation without representation!

Update: Back me up, fake person from The Onion.


Thursday, March 22, 2007

Apple to Sue Disney, Pirates, Homeless for Unauthorized Use of "Eye-Patch"

Deliberate misspelling a "transparent ploy," attorneys say

I've always wanted to write for The Onion. Yeah, that's all I got. I'll just stick to science.

Update: This ties in pretty nicely...


Wednesday, March 21, 2007

The Truest Betrayal

This is an incredible piece of journalism by George Packer. It is one of the most geniunely captivating portraits I have ever read, and it seemlessly blends investigation with ethnography, and above all, humanity. Even those of us who vehemently oppose the war in Iraq have, over the last four years, become somewhat inured to the tragedy that it entails. Although the violence in Iraq is not its main subject, this piece is a fine reminder that war is not just an abstraction or a campaign issue, it is hell.

A few quotes...

The Iraqis and I went up to a room on the eighth floor. Othman smoked by the window while Laith sat on one of the twin beds. (The names of most of the Iraqis in this story have been changed for their protection.) Othman was a heavyset doctor, twenty-nine years old, with a gentle voice and an unflappable ironic manner. Laith, an engineer with rimless eyeglasses, was younger and taller, and given to bursts of enthusiasm and displeasure. Othman was Sunni, Laith was Shiite.

It had taken Othman three days to get to the hotel from his house, in western Baghdad. On the way, he was trapped for two nights at his sister’s house, which was in an ethnically mixed neighborhood: gun battles had broken out between Sunni and Shiite militiamen. Othman watched the home of his sister’s neighbor, a Sunni, burn to the ground. Shiite militiamen scrawled the words “Leave or else” on the doors of Sunni houses. Othman was able to leave the house only because his sister’s husband—a Shiite, who was known to the local Shia militias—escorted him out. Othman took a taxi to the house of Laith’s grandfather; from there, he and Laith went to the Palestine, where they enjoyed their first hot water in several weeks.

They had a strong friendship, based on a shared desire. Before the war, they had both longed for the arrival of the Americans, expecting them to change their lives. They had told each other that they would try to work with the foreigners. Othman and Laith were both secular, and despised the extremist militias on each side of Iraq’s civil war, but the ethnic conflict had led them increasingly to quarrel, to the point that one of them—usually Laith—would refuse to speak to the other.


Whenever I asked Iraqis what kind of government they had wanted to replace Saddam’s regime, I got the same answer: they had never given it any thought. They just assumed that the Americans would bring the right people, and the country would blossom with freedom, prosperity, consumer goods, travel opportunities. In this, they mirrored the wishful thinking of American officials and neoconservative intellectuals who failed to plan for trouble. Almost no Iraqi claimed to have anticipated videos of beheadings, or Moqtada al-Sadr, or the terrifying question “Are you Sunni or Shia?” Least of all did they imagine that America would make so many mistakes, and persist in those mistakes to the point that even fair-minded Iraqis wondered about ulterior motives. In retrospect, the blind faith that many Iraqis displayed in themselves and in America seems na├»ve. But, now that Iraq’s demise is increasingly regarded as foreordained, it’s worth recalling the optimism among Iraqis four years ago.


When interpreters drove onto the base, their cars were searched, and at the end of their shift they would sometimes find their car doors unlocked or a mirror broken—the cars had been searched again. “People came with true faces to the Americans, with complete loyalty,” Ali said. “But, from the beginning, they didn’t trust us.”

Ali initially worked the night shift at a base in his neighborhood and walked home by himself after midnight. In June, 2003, the Americans mounted a huge floodlight at the front gate of the base, and when Ali left for home the light projected his shadow hundreds of feet down the street. “It’s dangerous,” he told the soldiers at the gate. “Can’t you turn it off when we go out?”

“Don’t be scared,” the soldiers told him. “There’s a sniper protecting you all the way.”

A couple of weeks later, one of Ali’s Iraqi friends was hanging out with the snipers in the tower, and he thanked them. “For what?” the snipers asked. For looking out for us, Ali’s friend said. The snipers didn’t know what he was talking about, and when he told them they started laughing.

“We got freaked out,” Ali said. The message was clear: You Iraqis are on your own.


Tuesday, March 20, 2007

You Got Away With It (A Tale of Two Fraternity Brothers)

Todd Snider is one of my favorite songwriters. This new album is pretty good, although I don't like it as much as East Nashville Skyline. But this song is pure gold. When I heard it I hoped there was a video, and he does not disappoint.


Thursday, March 15, 2007

Letter from the DNC

I'm sure they won't mind me reprinting it here.

On the heels of Libby's conviction, the 2 year-old memos detailing executive malfeasance and Alberto Gonzalez's compliance with a clearly inappropriate and abusive scheme are a BIG deal. This must be investigated, and thoroughly.

This administration has been extremely secretive in habitually circumventing the conventional channels by which executive power is regulated, and has emphatically claimed that our most essential forms of checks and balances are not applicable to its policies or personnel. It is time for transparency and accountability to be reinstated, and for the executive branch to be reminded that it is not above the law.

Take it away, Howard.

This could be George Bush's Watergate.

Eight U.S. Attorneys, fired because they wouldn't follow orders by the Bush Administration.

Fired because they refused to go on witch-hunts against Democrats, or ignored the Republicans' blatant disregard for the law. Fired so that they could be replaced by talking heads and loyalists of the Bush Administration.

When Scooter Libby was convicted, I said that this administration reminded me of Richard Nixon's administration -- more obsessed with their critics than with the jobs the American people entrust them with. But this latest White House scandal takes that comparison to another level.

Just what did George Bush, Karl Rove, Alberto Gonzales and the rest of the Bush White House and Republican senior staff know about the Justice Department firings -- and when did they know it?

Join us in our effort to use the Freedom of Information Act (FOIA) to try to cut through the White House's nonsense -- the finger-pointing, the lies, the cover-up. Americans have a right to access any and all records between the Republican National Committee, other Republican party committees, and the Department of Justice in order to get to the bottom of this investigation.

"I can accept that mistakes were made."

When Attorney General Alberto Gonzales uttered those words yesterday, he admitted what many had suspected: that eight U.S. prosecutors were improperly fired -- and, because of a Patriot Act provision slipped in by Congressional Republicans, replaced with Bush Administration cronies. The fired attorneys included:

Carol Lam, who prosecuted former Republican Congressman Randy "Duke" Cunningham for bribery, and who was actively investigating Republican House Appropriations Chairman Jerry Lewis at the time of her dismissal;
Paul Charlton, who was investigating Republican Congressman Rick Renzi for bribery and illegal land dealings, and who had publicly clashed with the Bush Administration over the merits of the death penalty; and
David Iglesias, a commander in the U.S. Navy Reserve and the basis for Tom Cruise's character in A Few Good Men, who was pressured by Republicans to indict Democratic politicians prior to the 2006 elections.

In January, Gonzales claimed that he would "never, ever make a change in a United States attorney for political reasons or if it would in any way jeopardize an ongoing serious investigation." Justice Department officials claimed the firings were part of standard personnel turnover.

But when questioned by Congress, Gonzales's deputy, Paul McNulty, claimed they were fired for poor performance -- even though most of the fired attorneys had received excellent performance reviews.

Karl Rove, Harriet Miers and President Bush himself were in contact with Gonzales's office about the attorneys. Just weeks after Bush spoke to Gonzales, they were fired.

Former Washington state GOP Chairman Chris Vance admitted to pressuring fired U.S. Attorney John McKay to investigate Democrats at the urging of the "White House's political office." And emails released yesterday show that White House deputy political director and former RNC opposition researcher J. Scott Jennings used an RNC email account to talk with Justice Department about the appointment of U.S. Attorney and former Karl Rove aide Tim Griffin.

These revelations raise even more questions -- and it's time for answers. Add your name to the FOIA Request, and demand accountability from the White House:

In an all-too-familiar scene, Gonzales's chief of staff, Kyle Sampson, resigned over the scandal. But we won't let Sampson be the fall guy for another Bush Administration cover-up.

Dick Cheney's chief of staff, Scooter Libby, already took the fall for the Bush Administration's orchestrated leak of a CIA agent's identity. And incompetent FEMA Director and Bush buddy Michael Brown took the fall for our president's disgraceful reaction to Hurricane Katrina -- while the Gulf Coast remains in shambles.

Just like the Nixon Administration, cronyism and corruption has hollowed this White House from the inside-out.

It's time for Republicans to stop spinning such a tangled web of deceit to get what they want. Some Democratic Senators have already called for Alberto Gonzales's resignation. But this is part of a much bigger problem.

The purge of U.S. Attorneys wasn't a "mistake," as Alberto Gonzales claims. It was part of a long, calculated effort by the Bush Administration and the Republican Party to silence its critics and remain above the law.

Help us use this FOIA request to go beyond the lies and reveal the truth behind the White House, Justice Department, and Republican Party's corruption. The American people deserve nothing less:


Governor Howard Dean, M.D.


Wednesday, March 7, 2007

Real Transformers!

Pretty awesome stuff. Japan is really leading the pack in robotics, especially of the humanoid variety.

There's also an interesting article on HSW about the feasibility of real-life transformers. I hate to burst the bubble of everyone who longs for the reincarnation (if you can say that) of Optimus Prime, but it's not gonna happen on a scale much larger than the video. Sorry.