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June 11, 2004

Posted by Teresa at 11:32 AM *

1. What are the odds that it’s always been within the law that the President has the right to flat-out ignore the law, but we’ve just never noticed it before? Wouldn’t Richard Nixon have noticed it, at the very least? All things considered?

(Sometimes, in extraordinary circumstances, Presidents have bent or broken the law, and had to square it afterward. There’ve been times when it didn’t square. Those were, not surprisingly, handled under the law. But there’s an unbridgeable gap between (a.) acting outside the law and having to answer for it, and (b.) declaring that you’re not answerable to the law for your actions. That second one is a breach of our entire legal system.)

2. When your local returns been tabulated on Election Day, what action can you take if you think the voting machines in your area have been rigged to give false results? Any suggestions?

3. Given that (a.) anyone who has any expertise in intensive interrogation knows that tortured prisoners will tell you anything they think will get you to stop hurting them; and (b.) given that it’s a disastrously stupid move to plan your operations and allocate your resources on the basis of such worse-than-nothing “intel”; and (c.) given that we have experts working in our government and military who know all those things in detail, what do you suppose was the actual point of getting advance permission to torture prisoners?

Comments on Questions:
#1 ::: C.E. Petit ::: (view all by) ::: June 11, 2004, 12:11 PM:

1. It's always been within the President's power to do so; within the law, though, it's the opposite. Look, for example, at Lincoln's success in suspending habeas corpus in Indiana during the Civil War—he did it, even though it was unlawful.

2. Move farther away from Chicago?

3. The object of power is power. That is, it's self-justifying.

#2 ::: Mary Kay ::: (view all by) ::: June 11, 2004, 12:15 PM:

1. Yeah, you'd think.

2. If it's a Diebold, no paper trail machine, I think there isn't anything. There is no way to recount. I suppose you could get on the phone to whatever city/county/state body supervises the local election administering entity.

3. That's a really really good question. Establishing cover for the murder of people the administration urgently doesn't want talking would be my guess. (Insert nutbar conspiracy theorist comment here.)


#3 ::: ElizabethVomMarlo ::: (view all by) ::: June 11, 2004, 12:20 PM:

I don't know what to do about 1 and 3.

For 2, I know that at least in my state (Missouri) there are lawyers on standby, either at hot voting places, or with flunkies and cell phones at hot voting places.

Last battle between Carnahan and Talant (the senate race) my mom (who was on the Carnahan campaign) told me that the Dems and Emily's List had legal guys ready that night, in case. If I remember correctly, they were polling people how they voted and watching to make sure the percentages matched. I'm pretty sure my mom mentioned that she could call headquarters and report problems on the ground.

We have a history of odd voting in MO though. In the previous senate race (2000, Carnahan vs. Ashcroft) there were legal battles. Carnahan was elected dead, which of course caused problems, but there were also disputes over some St. Louis voting irregularities. The polls remained open extra hours by order of a judge.

#4 ::: Jo Walton ::: (view all by) ::: June 11, 2004, 12:30 PM:

It's not just a breach of your legal system, it's a breach of the Rule of Law itself.

Or in other words, this isn't just against what was decided at your (1776) revolution but what was decided at our (1688) revolution as well. There shall be divine right of kings. Everyone is subject to the law. Nobody is above it or below it, or we have no law.

#5 ::: Ayelle ::: (view all by) ::: June 11, 2004, 12:36 PM:

1. Now now... he's only above the law with regards to terrorism, right? And that seems reasonable. After all he has to protect the United States. And terrorism is anything that threatens the United States. Or anything that threatens Bush himself, since, of course, he is the President of the United States... so anything that threatens him must be terrorism! Now doesn't that clear everything up?

Sorry that my first comment on this extremely intelligent blog is unhelpful sarcasm... I'm just so upset right now I'm having trouble coming up with anything useful to say.

#6 ::: bellatrys ::: (view all by) ::: June 11, 2004, 12:48 PM:

I see where you're going with #3. Yeah, that's where i've been Seeing since the Mayfield case.

As to #2 - there's a push to ensure this in lots of areas. (Army Times frex is watching it. The NYT today editorialized on the Supreme Court's apparent partisan unreliability in re elections.) As for us in the trenches - that's my this-months meme for harrassing my "representatives" in Washington. Given the Herseth victory, they have to know that they are vulnerable - and they have to have some fears for themselves, too.

"The imperial senate has been dissolved. Fear will keep the local systems in line, fear of this battle-station."

As to #1 - certainly Nixon would have. He tried, iirc.

#7 ::: mythago ::: (view all by) ::: June 11, 2004, 12:55 PM:

re #3, remember you're dealing with people who have Alan Dershowitz's mentality. "If you know the terrorist knows...." They spend so much time out of the real world that they do not really grasp (or want to grasp) the practical effects of a policy allowing torture. Hey, it works in theory!

re #2, better to pre-empt that crap now, instead of waiting for Election Day. Here in California, the Secretary of State decertified Diebold because of the huge public outcry. Find out how ballots are going to be cast in your area now. Complain. Talk to the ACLU. Harass local politicians.

#8 ::: Adam ::: (view all by) ::: June 11, 2004, 12:57 PM:

(1) As C E pointed out, it's possible, but isn't legal. Granted, that hasn't stopped The Simp Chimp yet...

(2) I've been pondering this very thing for a while. I suppose you could gather a bunch of like-minded thuggish types and storm the counting stations. Worked in Broward County, FL, after all...

(3) I could spawn a flamewar by drawing some comparisons to a middle-European government's actions in the last century, but I think it was basically a combination of a directive from above to "git tuff" and a desire from below to cloak said "gittin' tuff" in a flimsy veil of rationalized permission.

#9 ::: en_ki ::: (view all by) ::: June 11, 2004, 12:57 PM:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Lincoln was within the law, at least as far as the Constitution was concerned. Bush is emphatically not: there is neither rebellion nor invasion of the US right now, regardless of whether there is war, and he has surely acted in the US without regard to habeas corpus.

#10 ::: Kip Manley ::: (view all by) ::: June 11, 2004, 01:04 PM:

Of course, Nixon never asked for a legal opinion that stated no. 1 in so many words. He just groused about it after the fact on the Dick Cavett show.

Not sure if that makes it better or worse.

As for no. 3: well, heck. It works for Jack Bauer on that TV show.

#11 ::: Catie Murphy ::: (view all by) ::: June 11, 2004, 01:07 PM:

#2 -- I've been thinking about this a lot, as I suspect a lot of us have been. (Mm, a poorly constructed, repetitive sentence. Go go gadget writer!)

They can't refuse me the right to vote, correct? What if I refuse to use an electronic voting machine? Their argument would be that I refused my own right to vote by refusing the current technology, but I don't know if that would hold up. It strikes me as absolutely and utterly reasonable to refuse to vote in a fashion that doesn't leave a paper trail, so it seems to me that the government would be obliged (*snort*) to provide me with a paper ballot, because otherwise they're refusing me the right to vote.

Anybody know if I'm right? And how to convince everybody else in the world that the thing to do is refuse to vote on anything but a paper ballot?

#12 ::: Andrew Gray ::: (view all by) ::: June 11, 2004, 01:22 PM:

[not commented before, so appropriate noises of kowtowing in deference to quality, &c]

#1: (It's not my period, but I think Nixon claimed he had the right. It may be surmised how well that came off if he did.)

But... I've been dragging it out again, and I can't see how it's legally in his power.

As Jo Walton points out, in the original text, back in 1688:

"That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal" (Read the whole thing, if you can find a copy, it's quite cheering in places)

Article II charges him with "[taking] care that the laws be faithfully executed", and 'except some of them' strikes me as a very innovative interpretation. Especially when the framers were sufficiently aware of the '88 Bill of Rights to quote it essentially verbatim for at least one amendment, and that they were rebelling against the "...Establishment of an absolute Tyranny"...

#2: IANAL, but I've worked with (vastly more trivial though sometimes just as bitter) elections, and a good suggestion would be that if you think it's going to be dubious *challenge it now*, before the results are tabulated.

I'm not sure how the law works on this, and I suggest you ply a lawyer with food and beer for his thoughts, but a challenge to the validity of an election looks a lot less motivated by "we didn't win" if you make it before you lose, IYSWIM. Even if you're not directly involved, it's still going to make a court less inclined to listen.

Shout hard, shout loud, shout often; and sooner or later someone has to either listen to you or shut you up. Sometimes, it works. Speaking as someone who has to live with your elections and their knock-on effects without getting to influence them, please go shout...

#13 ::: Claude Muncey ::: (view all by) ::: June 11, 2004, 01:26 PM:

Taking things out of order, the answer to #2 depends on your local laws, as each state has a process for handling such challenges. The usual problem is establishing that you have standing as just being a voter may not be enough. #3 requires a separate, and rather depressing answer.

But #1 we can put away right now. No chance at all.

In a previous life I was a graduate student of public administration, and my studies included constitutional law for bureaucrats. This covered what you would expect in a semester survey, but paid special attention to certain laws and decisions such as the Administrative Procedures Act and in re Goldberg. One that we had to know cold was Youngstown Sheet & Tube Co. v. Sawyer (1952), otherwise known as the Steel Siezure Case. This is one of the truly great decisions, rating right up there with Brown v. Board and the Pentagon Papers case.

President Truman faced the threat of a steelworkers strike during the Korean War, but opposed the Taft-Hartley act (good man) and therefore would not use the mandatory cooling off period. Other existing means to intervene appeared too limited or clumsy to use, so he issues an Executive Order siezing the steel mills and instructing the Secretary of Commerce to operate the mills using the current managers (essentially replacing the boards of directors with the Department of Commerce). He based his claim of power to do this directly on the Constitution, in particular the Commander in Chief provision, and not on any particular law. Truman then reported the action to Congress, which declined to act to endorse or reject as Taft Hartley was available. This was taken to the Supreme Court, where Truman expected to win. He lost 6-3.

Almost everybody filed an opinion on this one as those who agreed that Truman had crossed the line, disagreed on just where that line really was. But the words that have endured are from Justice Robert Jackson. (added emphasis mine)

The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system

Treatment of prisoners, non-combatants, and the issue of torture are covered by treaties ratified by the Senate, as well as both military and civil law, both of which has been approved by Congress under their Article I powers. As both the Commander in Chief and the chief prosecutor, the President has discretion as to the manner and timing of their enforcement, but in no way has the power to nullify them either formally or informally, and the courts have been willing to intervene in such issues in the past during wartime, as in this case.

This is not some obscure ruling, it is one of the dozen or so basic court decisions about the limits of presidential power. The Walker working group report exhibits either a breathtaking ignorance of the basics of constitutional law or a brazen contempt for them, and I would like to see the report's author(s) disbarred.

#14 ::: Bryan ::: (view all by) ::: June 11, 2004, 01:39 PM:

1. Jefferson, Lincoln, and others, have done things that they knew were illegal, but then sought "legalization". The point is that they didn't claim they were right in what they did when they did it, but asked Congress to approve their action after the fact.

The difference with this administration is they insist that it is right because they decide it is right. They refuse to accept or acknowledge oversight.

2. Surely you jest, I live in Florida and vote at the convenience of the US Supreme Court, not the state of Florida. The system is not fixed.

3. As a former military linguist/interrogator and then a civilian criminal investigator I know from training and experience that you can elicit real information without duress, much less torture. I also know that you can't even effectively communicate through an interpreter.

The people who are in charge, who ordered this, don't understand the process. They have read too many novels and watched too many videos/movies.

Consider the reality: if their scheme was effective, why did it take years to discover that their were innocent people in Gitmo?

#15 ::: Matt Austern ::: (view all by) ::: June 11, 2004, 01:40 PM:

I think Jo is on the right track, but she isn't going quite far enough back. The power that Bush is claiming for himself is extraordinary; it's such an audacious claim that it's hard to notice just what it is. At first sight it appears that Bush has forgotten he is merely an elected official of a republic and that he is claiming the powers of a king. But in fact it's worse: he's not just claiming the powers of any king, but of an absolute monarch of a kind that hasn't existed in English tradition for a good long time.

The rule of law that Bush sneers at is was established by the barons' rebellion against King John in 1215. He really is trampling on things that are that fundamental.

#16 ::: sennoma ::: (view all by) ::: June 11, 2004, 01:47 PM:

Good questions all.

1. As I understand it, as a practical matter the President has always been able to push laws aside in extreme situations. It's just that no President has ever tried to make it legal, nor has any President ever done it without accepting responsibility for the consequences -- trying to square things afterwards, as you put it. The difference here is that Shifty George is not in an extreme situation, and he has no intention of being called to account.

2. I don't have a clue as to what you could do afterward. The vital thing is to act ahead of time: vote by mail if you possibly can, volunteer for vote watch efforts (moblogging anti-thug committees standing watch over voting booths), drive people to polls if you have a car, and so on. It would also be a good idea to find out exactly what kind of ballots you'll be using in November, and if they are the Diebold kind, start screaming blue bloody murder right now.

Here's a further question: how does one become one of the people doing the actual counting, in those instances where there are still physical ballots to be counted?

3. The problem here seems to be related to a disconnect between a+b and c: that is, the experts were ignored. I still don't know whether stupidity or malice is more to blame for the actions of this administration, but in this instance I am leaning away from conspiracy theories of the "first the POWs, then our own citizens, then I'm dictator for life" variety. My guess is that Shifty and Rummy and company are simply so inept and amateurish and arrogant that they failed to understand what a fundamentally useless set of tools (torture, unlimited detention, etc) they were trying to use. They actually buy into their own B-grade "gettin' tough on terra" rhetoric, is what I'm saying. For me, that is still (marginally) easier to believe than the conspiracy theory.

#17 ::: Claude Muncey ::: (view all by) ::: June 11, 2004, 01:51 PM:

Bryan, Jefferson and Lincon both took actions that were outside the envelope of what Congress had authorized, or even concieved of authorizing. Their excues in both cases was unforseeable circumstances and both submitted their actions to Congress, which agreed with Jefferson (on the Louisiana Purchase) and conditionally agreed with Lincoln (it's complicated and was not resolved until after the war).

It was Jackson who ignored a Supreme Court decision, reportedly saying "They can enforce it", meaning that he would not. Today, the situation is not that simple, and the legal consequences can be a bit more dire.

#18 ::: Andrew Gray ::: (view all by) ::: June 11, 2004, 01:53 PM:

sennoma: in .ukia, the counters are (I believe) mostly local government employees - certainly everyone I've spoken to who'd counted had been corraled into it that way. Try finding the address of the relevant returning officer, and writing to them to offer your services.

(election counts are really quite surreal yet practical experiences; I commend everyone to work their way into one somehow)

for those who read usenet, the everwonderful comp.risks generally keeps itself abreast of The Voting Machine Farce, and is worthwhile reading in that context.

#19 ::: mythago ::: (view all by) ::: June 11, 2004, 02:01 PM:

What if I refuse to use an electronic voting machine?

Depends on your district--there may, or may not, be paper backup. Otherwise, if you didn't cast an absentee ballot, you are probably SOL. You could, of course, file a lawsuit about the use of touch-screen balloting, but you don't have an absolute right to fill out a ballot in whatever means you choose.

I am a lawyer, and while I do not specialize in elections law, I can tell you that it is way, way easier to make a fuss before than after.

#20 ::: Adam Rice ::: (view all by) ::: June 11, 2004, 02:09 PM:

Forgive my simple-minded reading of the US Constitution, and my even simpler-minded dedication to it, but

1.A The president swore this oath "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

1.B Article II, Section 3 of the constitution describes the president's responsibilities. It is very short, and includes "he shall take care that the laws be faithfully executed"

If the laws of this country forbid torture--and I think they do--then he is in violation of Section 3, meaning he broke his oath (as every other president from Washington on down probably has). The language seems pretty clear, and doesn't allow any wiggling to set aside the law.

#21 ::: James D. Macdonald ::: (view all by) ::: June 11, 2004, 02:36 PM:

They can't refuse me the right to vote, correct? What if I refuse to use an electronic voting machine? Their argument would be that I refused my own right to vote by refusing the current technology, but I don't know if that would hold up.

This recently came up.

In at least one district people who weren't comforta ble with the new electronic voting machines were allowed the choice of using paper ballots. Those ballots were then destroyed uncounted.

#22 ::: Clark E Myers ::: (view all by) ::: June 11, 2004, 02:43 PM:

Jack Balkin - - has the best discussion I've seen pointer courtesy of that guy in Colorado who goes nameless around here.

Quoting on the notion that Nixon did notice:
In any case, I thought I'd offer some historical perspective on the controversy. To begin with, here, (reprinted from my constitutional law casebook), is Richard Nixon making arguments remarkably similar to those in the torture memo. These come from an interview with David Frost following his resignation as a result of the Watergate scandal:

Mr. David Frost: So what in a sense you're saying is that there are certain situations . . . where the President can decide that it's in the best interests of the nation or something, and do something illegal.
Mr. Nixon: Well, when the President does it, that means that it is not illegal.
Mr. Frost: By definition.
Mr. Nixon: Exactly. If the President, for example, approves something, approves an action because of national security, or, in this case, because of a threat to internal peace and order, of significant magnitude, then the President's decision in that instance is one that enables those who carry it out to carry it out without violating a law. Otherwise they're in an impossible position.

Nixon argued that the President is not above the law because the President determines what the law is, and subordinates who follow the President's orders are thereby immunized. It follows that if the President determines that torture does not violate the law, it does not violate the law, and if he orders his subordinates to torture people, they are immunized from later prosecution.

On the poll watcher question I'd ask a poll watcher. Closest I've come to personal involvement is feeding agreed count punch card ballots to my shredder as a favor to a poll-watcher friend.

#23 ::: Bill Higgins-- Beam Jockey ::: (view all by) ::: June 11, 2004, 03:31 PM:

Andrew Gray writes:

for those who read usenet, the everwonderful comp.risks generally keeps itself abreast of The Voting Machine Farce, and is worthwhile reading in that context.

I second the motion. RISKS is an education in itself, not only about voting but about many another stage upon which the dance of humans and machines is danced. It offers a parade of folly, but also a chance to learn from our collective mistakes.

It is certainly a place where you will read about the latest developments in the VMF.

The RISKS forum started on ARPANET in 1985, but has become available, not merely to Usenet readers, but to most corners of cyberspace. It's on the Web. It's on an FTP site. I think it has an RSS feed.

Point your browser to to read recent issues, and to find archives of old ones.

#24 ::: James D. Macdonald ::: (view all by) ::: June 11, 2004, 03:37 PM:

So we have two people, Richard Nixon and G. W. Bush, saying words to the effect of "The president's word is law"? And that was Nixon after he had already resigned in disgrace, trying to justify himself, not making an argument in a court of law.

Holy L’État, c’est moi, Batman! Divine right of Presidents?

At least when Nixon tried to subvert the Constitution he was ashamed of it and tried to hide his actions.

#25 ::: Andrew Gray ::: (view all by) ::: June 11, 2004, 04:09 PM:

James: Or 'divine light of precedent'? I mean, when your first-glance precedents encpmpass James II Stuart (not to be confused with James II Stewart, or possibly the other way around) and Richard Milhous Nixon, it's usually time to reassess the situation... ;-)

#26 ::: Xopher ::: (view all by) ::: June 11, 2004, 04:10 PM:

Well, James, maybe Dubya heard about how it was really the coverup that got Nixon, so...

#27 ::: Lenny Bailes ::: (view all by) ::: June 11, 2004, 04:22 PM:

Josh Marshall weighs in on Question No. 1 here.

Now, there are some possible exceptions -- ones of an extra-constitutional nature. If memory serves, Thomas Jefferson -- when he was later thinking over the implications of his arguably unconstitutional Louisiana Purchase (and again this is from memory -- so perhaps someone can check for me) -- argued that the president might find himself in a position in which he might have the right or even the duty to disregard the law or some stricture of the constitution in the higher interests of the Republic.

Jefferson's argument, however, wasn't that the president had the prerogative to set aside the law. It was that the president might find himself in a position of extremity in which there was simply no time to canvass the people or a situation in which there was no practicable way to bring the relevant information before them. In such a case the president might have an extra-constitutional right (if there can be such a thing) or even an obligation to act in what he understands to be the best interests of the Republic.

The clearest instance of this would be a case where the president faced a choice between letting the Republic be destroyed or violating one of its laws.

But that wasn't the end of his point. Having taken such a step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circumstances he had faced and leave it to them -- or rather their representatives or the courts -- to impeach him or indict those who had taken it upon themselves to act outside the law.

As for Question No. 2, I've been wondering whether there have been any recent (well-written) fictional explorations around the premise of real failure in the U.S. electoral system. (All I'm coming up with in my mind's eye is Terry Gilliam's Brazil.)

#28 ::: Bob Webber ::: (view all by) ::: June 11, 2004, 04:25 PM:

I kinda think that if Reagan had thought that a president could break the law with impunity, he'd've stood up during his second term and say that the Iran-Contra dance was his idea and he was running it.

I kinda think the bit about clearing torture was because there are people in the "intelligence community" who don't agree that torture always produces bad information.

#29 ::: bryan ::: (view all by) ::: June 11, 2004, 04:40 PM:

3. Actually I have been of the opinion for at least a couple months that certain high level members of the administration are perverts and have formed a secret sex club in which various decadent acts of sado-masochism are played out. In order to fuel their orgiastic lifestyles they invaded another country under a phony pretext in order to get a steady supply of child pornography and snuff films to masturbate to. These individuals are as follows:
George Bush, John Ashcroft, Dick Cheney, and Donald Rumsfeld. Although most of the administration are sexually degenerate these are the only ones I actually believe are involved in this conspiracy.

As an aside have you ever noticed that Carter was often derided as living in la-la land and caring more for human rights than hardnosed public policy. And after he left office he devoted his life to helping out human rights and doing charitable work for people. I fully expect that as soon as Bush leaves office he will begin travelling the world raping non-white children and killing their parents.

#30 ::: CHip ::: (view all by) ::: June 11, 2004, 04:55 PM:

My reaction to #3 was past sennoma's, amounting to "Don't attribute to malice what can be explained by incompetence."

We know that this administration believes that expert opinion is for sale (cf global warming, the recent post on water, the scientists' protest, ...); we've specifically seen in the case of the Iraq invasion that its response to experts who don't tell it what it wants to hear is to fire them and get some new experts. (Of course, that means they actually asked the first experts for an opinion, or at least couldn't gag them in advance; the people who knew better in this case may not have been asked at all.) The worst malice I can find in this is that this administration felt it had to be seen to be working hard against terrorism, and even thought it could secure its electoral base by being brutal with suspects.

Mind you, it is possible for stupidity to be so brutal that it looks a lot like malice -- but the thing about conspiracy theories is that they assume the alleged conspirators are smart, which is just what we're not seeing here.

#31 ::: mythago ::: (view all by) ::: June 11, 2004, 05:23 PM:

Good point, Chip.

#32 ::: Clark E Myers ::: (view all by) ::: June 11, 2004, 05:36 PM:

Jefferson possibly, Lincoln certainly - 1863

You ask, in substance, whether I really claim that I may override all the guarantied rights of individuals, on the plea of conserving the public safety when I may choose to say the public safety requires it. This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require, in cases of Rebellion of Invasion. The constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power, and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hand, to be dealt with by all the modes they have reserved to themselves in the constitution.

Notice some (I think John Yoo?) argue it was an academic discussion in the current administration never generally implemented. The writing certainly shows the willingness of counselors, like all consultants, to deliver what the client wants rather than good judgement. Nina Totenberg on NPR has pointed that the Administration in the office of the Solicitor General was arguing the opposite position in the Supreme Court during the the same time.

I must say that although W's cousin Prescott Bush is the only member of the family I have any experience of at all I nevertheless doubt very much the sort of conspiracy mentioned above. Not defending reports of Neil Bush's actions in that area.

I'll settle for dry drunk behavior as an adequate explanation.

#33 ::: Marilee ::: (view all by) ::: June 11, 2004, 06:38 PM:

Catie, in Maryland, people who refused to use the electronic voting machines were given paper ballots, but were not told that the paper ballots would be thrown out uncounted.

My city is so conservative that the only way I'd question the voting machines is if Independents started winning (we had one Democrat run in the past 20 years -- he lost, of course) and since I generally vote for the Independents, I don't know that I'd bring it up.

When I voted in the city elections last month, it was the first time for the electronic voting machines. They turned out to be jab-screens, not touch-screens, I had to hit the screen hard enough to hurt my finger. The way the ballots were laid out was really awful, but I suspect that's local, not Diebold. And it did remind me twice at the end that I hadn't voted for one race, was I sure I was done? (The incumbent was running unopposed.) It showed me my final choices and then I approved them. I would like a print-out, though.

#34 ::: Fontana Labs ::: (view all by) ::: June 11, 2004, 06:39 PM:

1. Just as an aside, I wanted to note that there are other cases in which something is constitutionally protected and we just never noticed. The string of privacy/neutrality decisions (like Griswold, Roe, Lawrence, etc.) sure seemed surprising at the time, and lots of people will still claim to find them completely ridiculous. Most of those people will have no idea what the decisions say, but that's another story. So I guess the general idea that the President might have some new power that we didn't know about doesn't strike me as all that crazy. That he should have this new power, the power to do just about anything because there can be no restraint on the Commander-in -Chief, strikes me as insane (for steel seizure reasons, among others).

2. Huh. Follow-up question: what do you do to restore public confidence in voting once suspicion, fuelled by Diebold-inspired concerns, seeps deeply enough into the electorate that it's no longer entirely crazy to wonder if they're even counting the votes at all? Even if, you know, they are?

#35 ::: Avedon ::: (view all by) ::: June 11, 2004, 07:10 PM:

I'm just about certain that if Kerry wins so overwhelmingly in November that even screwing the vote up doesn't stop him, the Republicans are sure to claim it was a fix.

#36 ::: Linkmeister ::: (view all by) ::: June 11, 2004, 08:28 PM:

"...the Republicans are sure to claim it was a fix."

That's as may be, but I wonder if SCOTUS wants any part of jumping into a mess again, after their vilification last time.

I remember seeing Souter or Breyer(sp) at a public appearance (on C-Span) a few months after Bush v. Gore, and whichever it was expressed absolute dismay and shock at the anger directed toward the Court after that decision.

#37 ::: Erik V. Olson ::: (view all by) ::: June 11, 2004, 10:09 PM:

I don't think that the five in power in the SCOTUS care. Souter and Breyer may care about the vilfication of the court -- but they're in the minority. Indeed, the very first non procedural line of Breyer's dissent is simply this:

The Court was wrong to take this case.

And the Court was. And the Court *deserves* vilification for a decision so odious that it itself declared that it would not be bound by it in the future. After all, should this happen again with Kerry in

#38 ::: Graydon ::: (view all by) ::: June 11, 2004, 10:27 PM:

The only fix for the voting machines is physical destruction before the polls open; really emphatic and public destruction, preferably by large mixed parties of clergy in full canonicals.

You have to have a full-up paper ballot ready to go, and it has to have at least some local Republicans and some local Democrats and some local independents willing to get up in court and defend it, and there have to be scrutinizers in place who will accept the change, but once the Diebold (et al., the companies are all connected) machines are used, they will elect Bush, and there aren't enough states that aren't using them to get him out of there anyway.

#39 ::: Terry Karney ::: (view all by) ::: June 11, 2004, 11:10 PM:

Hrmn... In re the use of interpreters, I disagree, a great deal of useful communication can be had with them, but I think they would be completely non-useful in situations where torture is being used.

I think the real reason for that memo was to make it a legal order, and so force people to carry out tortures (the drastic re-definition of torture seems to point to this... after all smacking someone around a little, or shaming him doesn't rise to the level of real torture, so, "suck it up and ask the questions soldier."

Needless to say, I am disgusted.

#40 ::: Hal ::: (view all by) ::: June 11, 2004, 11:41 PM:

I came here after reading the notes of the Sy Hersh talk over at J. Bradford DeLong's blog. Perhaps the worst part:

He said that after he broke Abu Ghraib people are coming out of the woodwork to tell him this stuff. He said he had seen all the Abu Ghraib pictures. He said, "You haven't begun to see evil..." then trailed off. He said, "horrible things done to children of women prisoners, as the cameras run."

He looked frightened.

In regards to #3, at this point I can only guess that they wanted to engage in the most monstrous behavior possible without risk of repercussion in order to...on second thought, I really don't know.

Nothing --but NOTHING-- justifies torturing children.

And Alan Dershowitz can go f**k himself.

#41 ::: James D. Macdonald ::: (view all by) ::: June 12, 2004, 01:41 AM:

Alan Dershowitz. Yes.

I have secret information that Alan Dershowitz is a member of al Qaeda. Further, that he has personally hidden a nuclear device somewhere in the Boston metro area, and that the clock is ticking.

I want to take Alan Dershowitz into custody and torture him until he confesses his membership in al Qaeda, the names of the other members of his cell, and the exact location of that bomb.

May I?

#42 ::: Graydon ::: (view all by) ::: June 12, 2004, 02:04 AM:

The entire underlying desire of the modern American 'conservative' movement, the radical cabal of thugs and theocrats currently in administrative control of the country, is to be in a position where no one can tell them what to do.

The rhetoric which attempts to dismantle the fifteen hundred year old idea of the 'common burdens', the legal framework and underpinning for the taxation that came about with the replacement of the tribal land tenure system where the King owned everything and rented it to you if, and only if, you served him, is part of this.

The rhetoric of race war, of xenophobia, of cultural gotterdamerung, is part of this, may be the root and resting cause of this, as a great many people decided that a federal government which would use force of arms to insist that a black man was their equal under the law had no right to exist.

The dismissal of the possibility of anthropogenic environmental change is part of this; the related general dismissal of consequence of choice and actions is part of this.

This is what it's all about -- the purpose of power is not power, but escape.

Escape from the idea that the world is bigger than they are, escape from the idea that they cannot have what they most want, and escape from the idea that naked will isn't materially operant, that wishing will not make it so.

#43 ::: Dave Bell ::: (view all by) ::: June 12, 2004, 03:01 AM:

There's enough wiggle room in the responsibility for the torture memo that Bush may escape censure in a court.

But maybe he ought to ask, "What did you do in the war, daddy?"

#44 ::: squiddy ::: (view all by) ::: June 12, 2004, 03:11 AM:

Looks like we're learning from the US with the total fubarred mess that was postal voting yesterday; imposed upon the electorate despite warnings from the Electoral Commission, pre the vote there have been numerous reports of proxy vote fraud, postmen being offered huge sums to hand over bags of blank ballot papers, and, in Walsall, a full ballot box was found under a table after the count was completed. The votes were counted, then the Returning Officer decided not to include them, as in her opinion 'They wouldn't have made any difference to the outcome'.

In the London Assembly election the antiwar party Respect missed having Lindsey German elected to the Greater London Assembly by half a percent, around 5,000 votes (Respect polled more than 87,000 votes, nearly five percent of the total vote in London), after almost 100,000 votes were disqualified mostly for double checking the candidate box: the form was marked at the top ''Make two votes'' ( first and second preference). Many if not most of Respect's London voters were non-English speaking Moslems, did not understand the overly complex system, and were thus effectively disenfranchised.

It's all one with the general culture of personality,impunity and the blinkered view of the true believer: their cause is right, they are right, therefore anything they do is right, therefore we must accept it, from manipulation of the polls to waging illegal wars, up to and including the setting aside of domestic and international law (not to mention basic humanity) at Presidential or Prime Ministerial fiat.

A supplementary to the 3 original questions: What do we do about the illegal actions of our government when the polls are manipulated - when the ballot bocx has no power, where do we go?

#45 ::: in medias res ::: (view all by) ::: June 12, 2004, 03:16 AM:

RE: James D. Macdonald ::: (view all by) ::: June 11, 2004, 02:36 PM:
"They can't refuse me the right to vote, correct? What if I refuse to use an electronic voting machine? Their argument would be that I refused my own right to vote by refusing the current technology, but I don't know if that would hold up.

This recently came up.

In at least one district people who weren't comfortable with the new electronic voting machines were allowed the choice of using paper ballots. Those ballots were then destroyed uncounted."

This is such a great discussion, but sorry, I am fixated on this claim, and the link is broken. Can anyone say more? Give me a working link? The voters were given paper ballots which were then were destroyed uncounted?? I am stuck here in awe and fury.

#46 ::: Linkmeister ::: (view all by) ::: June 12, 2004, 03:40 AM:

Well, the link was to the Baltimore Sun, and if it's Maryland elections in which this came up, that paper should be covering it; so should the WaPo, I'd think.

The link works for me: the lead says:

"Paper ballots from 100 may go uncounted
Officials say judges erred in offering alternative to new machines in primary; 21 from Howard County affected; Protesters demand votes be tallied, question use of touch-screen devices"

By David Nitkin
Sun Staff
Originally published May 20, 2004

"About 100 Maryland voters who requested paper ballots for the March primary because they did not trust the state's new touch-screen voting machines may never have their votes counted.

"The provisional ballots they filled out at their polling places during the primary election have been rejected by local elections boards, which determined that they could not be used for that purpose. State officials say that county election judges erred in offering the paper alternative."

#47 ::: Lois Fundis ::: (view all by) ::: June 12, 2004, 04:11 AM:

1. According to the transcript, Nixon's infamous statement, "If the President does it, that means it's not illegal," is followed by, "If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position."

In other words, giving people the ability to say "I was only following orders" lets off not only them but the one giving, or approving, the orders?

I don't think so.

2. If you think it's beyond the city or county level: each state has an official in charge of the overall election process. In most states, I think, this official is called the Secretary of (the) State.

Here in West Virginia, the current Secretary of State, Joe Manchin, is also the Democratic candidate for Governor this year. Ergo, he has a vested interest in the election not being fixed in favor of the Republicans. And Democrats likewise are in the majority in most state offices.

So that's where I'd start.

And that, by the way, is why the paranoid scenario of the Bushies finding a way to "postpone" the election wouldn't work. It's not just the Presidency that's up for election. The U.S. system doesn't work that way. You've got the whole House of Representatives, a third of the Senate, a large number of Governors and other state officials, many if not most state legislators, numerous local officials -- in our area all the county offices from county commissioner to assessor -- and special issues like taxes or bond issues for schools and libraries and state constitutional amendments. If there was no November election, come January no one would know who was who in D.C. or in county courthouses and state capitols all over the country. Elections would happen. People would notice.

And there's precedent: even during the Civil War, with rebellion and battles raging and his own re-election looking doubtful, Abraham Lincoln did not exercise any attempt to postpone or cancel the election.

3. See #1. If the President says it's legal, then it must be all right. Otherwise it wouldn't be legal. Right? Besides, it's not my fault, I'm just following orders. Right?

#48 ::: Yonmei ::: (view all by) ::: June 12, 2004, 05:00 AM:

if their scheme was effective, why did it take years to discover that their were innocent people in Gitmo?

What makes you think it took them years to discover that many of the prisoners were innocent?

It took them years to release some of the innocent prisoners held there, that's all.

#49 ::: Adrian Bedford ::: (view all by) ::: June 12, 2004, 05:37 AM:

This is a fascinating discussion, and I, here in Australia, am getting a lot out of it. Particularly because what happens in the US has huge effects on what happens to us.

So. Would someone please explain this "habeus corpus" thing? And why it would be advantageous to a president in a time of crisis to suspend it?

As for the voting machine issue: we have a federal agency, the Australian Electoral Commission, which runs all our national, state and local elections. We use paper ballots, and mark them with pencils, according to a proportial distribution system, where you assign a "1" to your first preference, a "2" to your second preference, and so forth. The system works very well, there is a minimum of informal voting, and of course, voting is compulsory (though there are a few folks who object to the whole thing).

So when we see what happened in Florida in 2000, it seems like madness. I realise the United States is set up to reduce the power of the federal government, and retain as much power for states as possible (we have similar issues here between the federal and state governments), but the Florida 2000 thing, I'm pretty sure, would never have happened here. When I've talked about our voting system with Americans previously, I get these horrified reactions. How can we tolerate such a tyrannical system? Compulsory voting? How could that possibly work? We end up with a situation where I can't understand why Americans accept the way voting happens in their country, and they can't accept the way it happens in my country.

As for what I'm seeing coming from the White House in recent times: I've never been more terrified of a government than I am today. I remember Nixon; I thought he was a dodgy, evil bastard (and don't get me started on Kissinger). These current guys, by contrast, with their contempt for pretty much everything, are breathtaking to behold, at least from here. This business about "setting aside the law", and all that goes with that, leaves me stunned and shocked out of my tiny gourd.

What can we do? I mean, those of us not in the US, but who are desperately worried about your country (and the way our own country seems only too keen on doing whatever the US tells us). I feel helpless.

Thank you for providing such a rich and open forum for the discussion of these crucial issues.

#50 ::: Kathryn Cramer ::: (view all by) ::: June 12, 2004, 07:11 AM:

Regarding #3, they get to feel like legends in their own minds, getting the intell that those law-abiding liberals were too wimpy to extract. There's an emotional payoff, firmly rooted in the filmic tradition.

#51 ::: Chad Orzel ::: (view all by) ::: June 12, 2004, 08:11 AM:

Erik Olson wrote:
And the Court was. And the Court *deserves* vilification for a decision so odious that it itself declared that it would not be bound by it in the future. After all, should this happen again with Kerry in

I knew it would happen sooner or later. Erik's head finally exploded mid-comment. Graydon, take note...

#52 ::: Andrew Gray ::: (view all by) ::: June 12, 2004, 08:22 AM:

Adrian: In the simplest possible terms, which coincidentally are the only ones I can ever manage to remember - 'Habeus Corpus' translates as something like 'having the body', and a writ of habeus corpus is a court order to present a body.

(well, a *specific* body, and still alive...)

The intent is that if someone is being held, or detained, you can go to a court and that court has the power to demand they are brought to court - not always in the sense of a trial, but just "presented". AIUI, IANAL, &c

#53 ::: Connie ::: (view all by) ::: June 12, 2004, 09:51 AM:

3. I would guess pretty much the same reason that elected officials would okay the execution of a retarded =and also= insane prisoner despite the recommendation of parole boards for commutation to life imprisonment: because it "looks tough" and plays well to the voters who have a nasty taste for bloody vengeance. (C.F. recent execution in Texas, where once again the prisoner =did not seem to comprehend that he was actually being executed.=)

Also, it's not that hard to find people who are almost 'religiously' convinced that torture =does= work as a method of getting intel, much the way you can find UFOlogists and who will end up in positions of power where they can do that because the belief is self-perpetuating -- like gamblers who once hit a big jackpot, so they believe =the next prisoner they torture= is going to be a goldmine of intel. Sometimes broad sweeps actually do get a few guys who know something, who actually spill it promptly during light torture =and= whose information is actually more or less in accord with what the torturers want to hear. Like with gambling, the occasional big jackpot justifies all the many many failures.

And as Kathryn Cramer above says, it's vastly cinematic and he-man-ish, and is totally in accord with the Administration's view of itself.

#54 ::: Elric ::: (view all by) ::: June 12, 2004, 10:54 AM:

The statement of authority of Law over the king goes back well before 1688. The precept that only God and the Law are above the king was in existence, if not during the reign of Henry II in England, then soon thereafter. (This is the foggy memory of an aging history major working without a net.) I believe that it was the dissemination of this concept that helped encourage those disgruntled barons to draft Magna Carta.

I don't have any easy answer to number 2. An author who is our mutual friend would probably agree with the statement that machine guns are the answer to many questions.

3. Punishment doesn't count unless it hurts. If you also happen to punish the innocent, well, that'll just encourage other people to not do anything to make them look guilty. And this is all okay when you're God's Annointed Instrument. Kids, don't try this at home.

#55 ::: Karen Sideman ::: (view all by) ::: June 12, 2004, 11:38 AM:

In terms of #2:
On beyond exit polling, I think we should think about ways of creating as a complete as possible an _unofficial_ auditable paper trail.

Encourage each voter to at least write down who they voted for and save the paper, with the knowledge that it might somehow be collected and tallied if a fix was suspected.

With more organizational effort, various GOTV-type groups might get notaries as close to polling places as is legal and have them sign, seal and date the back of this piece of paper. Other methods of creating date-stamped records (fax the thing somehwere? Take a digital picture of the voting screen and email it to someone?) could also be useful.

Obviously, proving the uniqueness of each vote record might require the voter to identity themselves in some way. Personally, I would trade the right to a secret ballot for the right to a fair one this election.

Collecting and counting these things would be a nightmare (volunteers near the site site with locked collection boxes seems way beyond reach). But the undertaking might produce reasonable anecdotal evidence of tampering. We could at least create a PR nightmare for any cheats, and at most discredit unauditable electronic voting systems.

OK you all can call me naive now.

#56 ::: James D. Macdonald ::: (view all by) ::: June 12, 2004, 12:00 PM:

For the link on the Paper Ballots Not Counted thing, try this.

For other action, again, we as citizens need to write to our elected representatives and to the newspapers, telling all and some that electronic voting machines without a paper trail are unacceptable, and that alternative paper ballots must be provided in all elections.

The time to protest is now. The time to take action is now. Get your own independent exit polls set up and ready to run, with the promise of a lawsuit for vote fraud in any district where the exit poll differs from the tabulated results by more than x%.

The alternatives are ... well, I have my own opinions.

Oh, on the torture question: There are two, and only two, reasons for torture. One is revenge, the other is to frighten the still-free members of your opponent's side. Any other claims of justification for torture are bogus.

(P.S. Intelligence gathered from multiple credible sources indicates that Alan Dershowitz is an al Qaeda commander with access to nuclear, chemical, and biological weapons. He plans to set off a dirty bomb during the Republican Convention in New York City. The only way to find out where it is and how to stop it is to question him. If he refuses to answer or claims ignorance, the methods approved by the president are authorized. Pass it on.)

#57 ::: julia ::: (view all by) ::: June 12, 2004, 12:15 PM:

I want to take Alan Dershowitz into custody and torture him until he confesses his membership in al Qaeda, the names of the other members of his cell, and the exact location of that bomb.

May I?

No, you may not, but it certainly does seem that you can.

#58 ::: Erik V. Olson ::: (view all by) ::: June 12, 2004, 12:37 PM:

No, head still attached. They thought Shub-Internet was dead. They were wrong. I just forgot to add line padding for the Old One.

In short -- the reason for the refusal to bind itself is to make sure that, should they need to make the opposite call, they can simply say so, without the dangerous idea that they've reversed themselves, and thus destroyed the basis of the 2000-2004 administration.

Personally, here's the scary thing.

*The President has asserted that he can make law at wil.*

If five members of the Supreme Court, and 40 senators agree with him, then he has just assumed the powers of a dictator, in a completely and utterly legal fashion under our system. If the Congress does not object (and 40 GOP senators means the Congress will not.) and the Supreme Court doesn't declare otherwise, then his statement is de facto law.

Does this viloate the spirit of the constiution, and the very concept of rule of law, and everything this country fought for? Yep.

Does that mean that it isn't dotted i/crossed t legal? Nope.

Does this mean we've lost? Quite possibly. We'll know when they cancel the election or somesuch.

#59 ::: Randolph Fritz ::: (view all by) ::: June 12, 2004, 01:41 PM:

1. In practice the law is, basically, what the courts say it is. The courts have never said it is within the law for the President to exercise arbitrary power.

2. Let's throw the voting machines into Boston Harbor! Failing that, making sure there's an exit polling system and raising hell when the results are out of line is a pretty good idea.

3. Allowing the people committing the acts to believe they were not responsibile, of course.

#60 ::: James D. Macdonald ::: (view all by) ::: June 12, 2004, 02:14 PM:

I also want to "question" Alan Dershowitz until he confesses that he personally murdered Nichole Brown Simpson and Ron Goldman.

Any voting system that can't be verified is pretty much a fraudulent voting system by definition, isn't it?

You know the thing about history repeating itself? One thing to do right now is study history. What worked before, what didn't? See, for example, An Honourable Defeat: A History of German Resistance to Hitler, 1933-1945 by Anton Gill.

No need to reinvent the wheel.

#61 ::: mythago ::: (view all by) ::: June 12, 2004, 03:06 PM:

and 40 GOP senators means the Congress will not

The fact that they are Republicans doesn't mean they are willing to give up their own power. Which is what approving the Anti-Magna Carta memo would mean. Ditto SCOTUS. You can be their buddy, but God help you if you mess with their turf.

#62 ::: Scorpio ::: (view all by) ::: June 12, 2004, 04:10 PM:

Question #2 interests me.

Is it a real remedy to sue Diebolt the day after? Make them submit their code and circuit design to independent experts? Class action suit to recover the funds that a new, paper election will cost?

Even if one's district is Diebolt Delivered, the voting rolls themselves -- that is, the place where one signs in and either is affirmed or denied as a voter -- is probably still in hardcopy. It seems to me that if a recount is required, those voters who signed in should be given paper ballots and another vote if a recount is required. :)

Expensive? Yes, but not more expensive than the cost of losing our votes ot malfeasance -- and making Diebolt pay for it would be more than just.

#63 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 12, 2004, 04:11 PM:

Chad gets two points on the objective laugh-o-meter.

Onward. Is anyone out there organizing these ballot-watching efforts? If so, do they have advice on how to do it? Suggestions? Links? Rumors?

I think it's extremely unlikely that we'll see elections suspended or cancelled, because that's a signal everyone understands. What a lot of people don't understand is that, in a lot of cases, you don't have to engage in massive vote fraud to throw elections. Electronic ballot tampering can do it much more subtly, altering patterns and percentages.

I wish this were hypothetical, but there really is a conspiracy, and one of the projects they've been working on for years is controlling the vote via electronic balloting. If they succeed in rigging the coming election, the one after that will be much more thoroughlly nailed down.

If you're really feeling paranoid, consider Jim Macdonald's observation. Just for the sake of the point, let's assume that things really go down the drain. Now is the time to be thinking about organizing resistance. The bad guys don't yet have the manpower to keep track of everyone at once. Just as an illustration, and not because I think it's likely to happen, let's assume they closed the borders. You'd come under a lot more scrutiny if you suddenly took up wilderness hiking after that happened than you would if you did it now. An up-to-date passport is always a good thing to have. So's a new silkscreen for your Gestetner and some extra cases of paper, if you're so inclined. You should assume that all codes are breakable, but now's a good moment for you and those closest to you to set up innocuous-sounding signals for things like "I'm in trouble," "don't believe what I'm saying here," and "my date's a demon who's trying to kill me."

#64 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 12, 2004, 04:24 PM:

Sorry, meant to say this earlier: Can we do "you should have shot them already" on some later occasion? I consider it a legitimate observation, but it's not time-constrained, and organizing for the coming elections is.

#65 ::: mythago ::: (view all by) ::: June 12, 2004, 04:33 PM:

The EFF on e-voting

Center for Voting and Democracy

Also, it's worthwhile to contact your Secretary of State and local officials to let them know you don't want Diebold or Sequoia deciding who gets elected. It was massive public outcry that worked in California.

Programmer acquaintances of mine point out that the problem of altering the audit log--and the Diebold memos support this--is in large part the result of lazy programming and crappy quality control. Yes, changing the audit log allows you to hide vote fraud. But from the perspective of the people writing the code, it also lets you cover up mistakes and make a pretty demo to the nontechies buying your stuff.

That's not to say that Diebold isn't all about delivering votes to the GOP, merely that ignorance here goes along with the malice.

#66 ::: Andy Perrin ::: (view all by) ::: June 12, 2004, 07:10 PM:

TNH said:
Just for the sake of the point, let's assume that things really go down the drain.

I'm about ready to ditch this timeline. *revs Delorian*

Meanwhile, I'm making sure all my friends and relatives know about the evils of Diebold machines (and any others that don't have paper printouts). Last year my Mom had never heard of the EFF. She has now.

While we're getting paranoid, here's something to chew on. Has anyone else noticed how many ATM machines are manufactured by Diebold? Penn may be atypical in this regard, since PNC Bank does most of our ATMs.

#67 ::: James D. Macdonald ::: (view all by) ::: June 12, 2004, 07:27 PM:

Heck, ATMs give paper receipts. Gas pumps give paper receipts. What's so tough about voting machines giving paper receipts?

#68 ::: Jo Walton ::: (view all by) ::: June 12, 2004, 08:09 PM:

Shooting them wouldn't help and might well make things worse -- they'd have a martyr and an excuse.

A few years ago, I was involved in an online discussion in which the question "Quis custodiet" was answered with "CNN". If you throw the things into Boston Harbour, Jim, make sure you do it with maximum publicity. It would be beautifully symbolic, and you need to do it on a slow TV day.

#69 ::: Andy Perrin ::: (view all by) ::: June 12, 2004, 08:09 PM:

James Macdonald said:
Heck, ATMs give paper receipts. Gas pumps give paper receipts. What's so tough about voting machines giving paper receipts?

I'm guessing that the engineering issues are (1) mechanical reliability, and therefore (2) cost.

(1) If an ATM or a gas pump won't spit out a receipt, tough noogies and no harm done. With voting machines, it's different. To do it properly, you would want some redundancy in the design, as with space shuttle components. Each machine should have at least two spare printers standing by, a la Rendevouz with Rama.

(2) If you want high reliability, that means doing lots of tests to make sure the printers work right, and to find out how they fail. This costs. Any design modifications that you have to make also cost. Re-certifying the machines...You get the picture. All of the above are a pain in the butt, too.

My feeling is that Diebold is greedy and lazy. They may also be malicious.

#70 ::: Andy Perrin ::: (view all by) ::: June 12, 2004, 08:13 PM:

Make that, "It may also be malicious."

#71 ::: Yonmei ::: (view all by) ::: June 12, 2004, 08:20 PM:

What's so tough about voting machines giving paper receipts?

I read somewhere (can't remember where, sorry) that effectively the Diebold voting machines are just single-function ATMs, and could very easily produce a paper record of each "transaction" (each vote). Clearly this paper record could easily be produced, and voters could be required to drop their paper record in sealed boxes, which would then be counted if there was any dispute over the electoral result.

But... the open objective of the Diebold machines is to avoid having to count paper ballots. (Why, I don't know. We still do it in the UK, speedily and accurately, and I'm not too worried about the slight degree of traceability that exists under the system.)

Obviously, if the paper slip is being used as a means of checking the electoral result, the people responsible for counting the votes are going to have to be prepared to produce vote-counters, who must be both efficient and trustworthy, to check and tabulate all the paper records. And (I have seen it argued elsewhere) this is apparently not considered to be a good thing in the US.

I'd be the first to admit that the UK electoral system is a long, long way from being perfect. But the means of recording votes is simple, straightforward, and checkable.

(Though I did spent a little while after voting on Thursday working out how it might be possible for a candidate to cheat zirself into a larger share of votes...)

#72 ::: Randolph Fritz ::: (view all by) ::: June 12, 2004, 08:52 PM:

"Now is the time to be thinking about organizing resistance."

As a start, let me suggest that everyone get PGP keys and start using them. This will not provide a high degree of security, but it will discourage mass eavesdropping. Many common e-mail clients support PGP.

Let me also suggest that the ANC provides a good model of successful resistance.

"Has anyone else noticed how many ATM machines are manufactured by Diebold?"

Speaking professionally, I can say that their electronic transaction facilities are not very secure. However, bankers, being more sensible than election boards--it's their money on the line, after all--verify every transaction with paper.

It is not particularly hard to design a reliable, secure election system--all that is lacking is the will. If quick electronic counting is desired, this can be provided, with the physical records of votes as an audit.

It's "all our sins remembered" time. If our political leaders and populace, in the majority, truly believed in democracy we would not have this problem at all; that we have this problem highlights a sad reality: we are not, in fact, very democratic despite all our rhetoric.

#73 ::: Graydon ::: (view all by) ::: June 12, 2004, 09:39 PM:

The other approach to the voting machines is to make sure that they return a trillion votes each for Mickey Mouse, Donald Duck, and Marie of Roumania.

That's much harder to arrange, and less reliable, but it's probably worth doing too, as an additional step to make it clear to everybody that the results are not to be trusted.

Video surveillance to multiple third party locations for the computers and space that are doing the tabulation, too; a packet level record of what hits that computer would be a very useful thing to have.

Fundamentally, though, Jim's right -- pressure on the representatives. It needs to be very clear to them that they must come out and put the full weight of their office and prestige on the side of verifiable ballots.

#74 ::: Erik V. Olson ::: (view all by) ::: June 12, 2004, 09:44 PM:

As a start, let me suggest that everyone get PGP keys and start using them. This will not provide a high degree of security, but it will discourage mass eavesdropping. Many common e-mail clients support PGP.

And PGP is trivial to break. It's called "Rubber Hose Cryptography." The fact that you are sending PGP encrypt messages is clear. A platoon shows up, with pliers and torches, and makes it very clear that one of two things *will* happen.

1) You will type your passphrase or

2) You will spend several days dying in agonizing pain.

Better yet, you can't lie. When you tell them a passphrase, they'll try it. If it doesn't work, they'll burn off a couple more toes and ask you again.

And again.

And again.

That's presuming, of course, you use PGP properly. If you use it on your typical computer attached to the internet, they'll just install a keylogger remotely, and save torch fuel.

PGP, and other encryption technologies, will only help against the regime if

A) You know how to keep you computer secure from remote intrusion.

B) You destroy your secret key the moment you realize you might be comprimised. I suggest a thermite charge.

C) You realize that the Regime will not belive you when you tell them that you destroyed the secret key, and you will spend the rest of your life in incredible pain, while the Regime's technicians pick apart what's left of your computer -- and the computers of *everybody* you emailed (While, of course, torturing them for thier private keys), in an effort to find that key.

If you want to discourage the masses, use a cryptosystem that doesn't unambigously point out that you are one part of the conversation. At least you can try and claim that the AES-128 encrypted email that went out from your computer came from a worm running on your drive.

But a messages sent to your public key mean they are meant for *you*, and nobody else. In finance, this is a bonus. In resistance, this is death. And god help you all when some fool saves everyone's public keys to a keyring, and the Regime scores that.

They want you to use technology. That's *easy* to subvert.

#75 ::: Larry Brennan ::: (view all by) ::: June 12, 2004, 10:02 PM:

Where I live, in San Mateo County, CA, we vote with complete-the-line ballots. Misvotes are reasonably obvious (and easily corrected with a replacement ballot) and recounts can be done visually. Voters insert their ballots into scanners which beep reassuringly when the ballot has been fully ingested.

It's easy, simple, and just a little fun. Not as much fun as pulling the handle on old voting machines, but still viscerally satisfying. And more easily validated.

Of course, even if we had touch screens here, I doubt Diebold would dare to tilt our votes rightward. It would be just too obvious. It's the areas (and states) that are balanced on the razor's edge we should worry about. Like Florida.

Still, I'm not going to freak out just yet about governmental black hats (or black shirts for that matter). Unless the crew in power right now makes a much smoother perma-power grab than they seem capable of, anything they try will be so clumsy that it's doomed to fail. It may be bloody and divisive, but it will fail. (It's perhaps my one article of faith, and I'm sticking to it until I need to take up arms.)

#76 ::: Graydon ::: (view all by) ::: June 12, 2004, 10:20 PM:

Larry --

They succeeded last time.

Don't mistake their general competence for their compentence with autocracy. That's what they're good at; that's what corporates do, fundamentally, and the one thing this lot of gallows bait really understands.

#77 ::: mythago ::: (view all by) ::: June 12, 2004, 10:27 PM:

Larry, one county over from you we have the stupid touch-screens. That's why I vote absentee.

#78 ::: Larry Brennan ::: (view all by) ::: June 12, 2004, 11:01 PM:

I'm no Pangloss. I'm not going to pretend that all's well until I'm presented with my own demise, or the demise of those I care about. That said, what I lack is a course of action that will be effective, rather than feel-good.

The simple fact is that the Bay Area is not the front lines in this struggle. Contra Costa might go red (so to speak.) Santa Clara, possible, but less so. If and when the hammer falls here, it will be sudden and if it gets this far, it'll have a great deal of momentum. But the tipping point lies elsewhere.

One thing I won't do is blame corporations. Corporations, like other social institutions, are composed of people. Not all of the people who run corporations (even the large ones) love the current regime. I'm much more worried about the military, which seems to be building its own subculture, with its own brand of state Christianity, a la Boykin and Ashcroft.

BTW - mythago, I started voting absentee with the last election, JIC San Mateo went touch screen. I still don't think anyone would mess with the returns here, I'm more worried about places like Ohio and Florida, which could go either way. A rigged election here would be too obvious.

#79 ::: Lois Fundis ::: (view all by) ::: June 12, 2004, 11:22 PM:

Hot off the AP wire: Here's another case of electronic ballots malfunctioning. In -- no surprise here -- Florida.

TALLAHASSEE, Fla. - Touchscreen voting machines in 11 counties have a software flaw that could make manual recounts impossible in November's presidential election, state officials said.

A spokeswoman for the secretary of state called the problems "minor technical hiccups" that can be resolved, but critics allege voting officials wrongly certified a voting system they knew had a bug.

The electronic voting machines are a response to Florida's 2000 presidential election fiasco, where thousands of punchcard ballots were improperly marked. But the new machines have brought concerns that errors could go unchecked without paper records of the electronic voting.

The machines, made by Election Systems & Software of Omaha, Neb., fail to provide a consistent electronic "event log" of voting activity when asked to reproduce what happened during the election, state officials said.

Officials with the company and the state Division of Elections said they believe they can fix the problem by linking the voting equipment with laptop computers. Florida's two largest counties — Miami-Dade and Broward — are among those affected by the flaws.

Rep. Robert Wexler, D-Fla., has asked state Attorney General Charlie Crist to investigate whether the head of the state elections division lied under oath when he denied knowing of the computer problem before reading about it in the media. A spokeswoman for Crist said he was reviewing the request.

The elections chief, Ed Kast, abruptly resigned Monday, saying he wanted a change of pace.

I guess so!

I'm snipping the rest but there was one bright bit of dialogue readers might enjoy:

"These are minor technical hiccups that happen," said Hood spokeswoman Nicole DeLara. "No votes are lost, or could be lost."

"How do you know that any votes were lost if your audit is wrong?" asked Lida Rodriguez-Taseff, chairwoman of the Miami-Dade coalition.

Hood being Glenda Hood, the current Fla. Secretary of State.

#80 ::: bellatrys ::: (view all by) ::: June 13, 2004, 12:28 AM:

The NYT lead editorial today is demanding that electronic voting be subject to the same stringent controls that already exist in Nevada to certify the accuracy of electronic slot machines...

CNN had a thing on how there may be an internal insurgency and the president of the League of Women Voters deposed over the issue of a paper trail.

My own following is concerned about this and keeping it alive and in the public eye, and discussing verification options as well, as are we at Billmon's Bar.

*It's* not going away either, no matter what the govt hopes.

#81 ::: Marilee ::: (view all by) ::: June 13, 2004, 12:43 AM:

Larry, Diebold has said in print that they'll do everything they can to re-elect Bush. It went along with a donation, but it's easy enough to consider they're screwing with the machines.

Speaking of the League of Women Voters, they were asked to handle the ballots of a co-op vote at the Watergate (yes, that one). About half of the owners want to sell the Watergate Hotel to a developer to make more co-ops, about half don't. Famous names were called (only rich people live at the Watergate) and petitions were signed. The ballots were counted and the people who wanted to keep the hotel (restaurant, etc.) won by a slim majority, and then the board voted 3-2 to sell.

#82 ::: Larry Brennan ::: (view all by) ::: June 13, 2004, 01:10 AM:

Marilee - I'm not questioning the potential for Diebold-based malfeasance. But, if and when it happens, it'll happen here (SF Bay) at the end of the wave, not the beginning. I don't know what I, personally, can do about it. BTW - I was one of the multitude who sent a paper letter to Kevin Shelly (CA Secy of State) to express my opposition to unauditable voting technologies. I think that the letter-writing campaing definitely had an impact on his decision.

The Watergate thing is really interesting - it's a microcosm for how representative democracy works. Be careful who you elect - they may not do what you want them to. (Sometimes this is a good thing, sometimes it isn't.)

#83 ::: mythago ::: (view all by) ::: June 13, 2004, 01:35 AM:

The simple fact is that the Bay Area is not the front lines in this struggle.

Sure. But the Bay Area is capable of making a lot of noise on this matter, and has enough techies able to say why this is a dumbass idea. That push gets the Secretary of State's attention, which gets public hearings, which gets news to the rest of the country. (I'm not trying to say that Santa Clara County is the savior of voting rights, only that while it's true we're not in great danger, we can still do a lot to push back the forces of scum.)

#84 ::: Dan Boone ::: (view all by) ::: June 13, 2004, 02:00 AM:

Here in Alaska, we went to fancy electronic ballot counters in 1998 or so. You fill out a good old fashioned paper ballot with a good old fashioned #2 pencil, blackening an oval to the right of the candidate you prefer. Then you put it into a cardboard sheath, walk out of the voting booth, and (in full view of election officials and random citizens) feed the end of your ballot into a scanner. The scanner sucks in your ballot, reads the ovals, and deposits your ballot in a locked ballot box for use in case of recounts. An unreadable or otherwise scumbled ballot is rejected into your hands, and you may (if you wish) then have it destroyed by the election officials and be given a clean ballot before returning to the booth to try again. As soon as the polls close in your precinct, the totals are electronically compiled by the state division of elections and become available immediately -- with a full set of paper ballots, locked securely away and untouchable by local election officials, available in case of any recount.

Tell me again why we *need* electronic voting machines?

Not that this makes an iota of difference to national politics, since Alaska always gives its three paltry electoral votes to the Republican candidate. Me, I'm just glad the Alaska Independence Party is still on the ballot.

#85 ::: Charlie Stross ::: (view all by) ::: June 13, 2004, 07:36 AM:

Yonmei: And (I have seen it argued elsewhere) this is apparently not considered to be a good thing in the US.

I'd be the first to admit that the UK electoral system is a long, long way from being perfect. But the means of recording votes is simple, straightforward, and checkable.

The problem is logistics: Americans vote for too many things for a paper count to be easy.

About a decade ago an American co-worker showed me her postal ballot. I couldn't believe my eyes; this thing was about the size of a broadsheet newspaper page spread, had about six columns, and listed maybe twenty different votes on the same sheet of paper in different boxes.

Now, when there are multiple ballots in a British election, they all come on separate (differently coloured) sheets of paper that go in separate (differently coloured) boxes. When the boxes are sealed and escorted to the count -- typically held in an indoor sports hall or similar -- they're opened and the contents for a specific election go to a table or tables of counting staff (usually civil servants being paid to do the job on their day off) while election officers and representatives from all the parties circulate to keep an eye on things and ensure there's no skullduggery. Some of the counters sort ballots into piles for the different candidates, and then pass these piles on to other staff who count the number in each pile (and double-check that no bloopers have slipped in.)

The British system is very efficient, but I don't think it would scale well to more than about five or six simultaneous votes. It relies on separate, easily-distinguished ballots for different elections. When there are twenty or more things being voted on in parallel, from the President down to the Dog-Catcher's Assistant, the logistics of a manual count become harder to organize. And I suspect most Americans would [rightly] be very skeptical about any proposal to reduce the number of items they're expected to vote on.

#86 ::: Charlie Stross ::: (view all by) ::: June 13, 2004, 07:58 AM:

Erik, in a whistling-past-the-graveyard mode, if I was going to organize any type of conspiracy today that was likely to be targeted by the authorities, Rule #2 (after the Fight Club "Rule #1") would be: "use no communications or information technology invented after 1970". Or preferably 1930.

You can't install a keystroke logger in a manual typewriter. You can't do a keyword scan on every hand-scrawled postcard in the postal service. If you need to copy text, almost all the components of a jelly duplicator can be disguised as innocent household supplies. Black-and-white film developing is a not-uncommon hobbyist skill, and hunting for microdots under postage stamps is not something that's been taught in spook colleges for a generation. Travel by train or bus rather than plane, using tickets paid for in cash, via multi-leg routes -- it'll take much longer, but make it much harder for them to spot your traffic patterns.

If you avoid information technology that is designed to automate searching, you force the other side to use labour-intensive (and fallible) human searches.

Of course if things reach the point where you're serious about this sort of stuff, you need to leave the country now (or at least get your family to safety). The easiest way to crack a conspiracy is to crack a member and roll it up via their contacts, and the easiest way to do that is to threaten their family.

#87 ::: Nancy Lebovitz ::: (view all by) ::: June 13, 2004, 09:34 AM:

Just a couple of odds and ends: the Australian system of voting on paper for preferences sounds very sensible to me. I can't see what's gained by compulsory voting (if someone doesn't want to vote, they presumably aren't thinking about who they vote for or else they're handing in a blank ballot), but I assume it could be detached from the rest of the system.

I like the Alaskan twist of machine-checked paper ballots--I think it works better than expecting people to accurately proof-read a ballot that's printed from their touch-screen choices.

Someone up-thread said that a lot of the rot has spread to the US military. My impression from blogs is that a good bit of the military is disgusted with how the current administration has handled the war. There isn't any single institution (not the federal government, nor business, nor religion, nor the press) which has gone completely or even substantially sour. Ok, well maybe the prisons, but that's about it.

As for the rest, I'm just busy panicking. If I have any ideas about something that might help, I'll let you know. To be blunt, I think we're talking about a coup--a coup against a highly illegitimate administration--but still a coup. I'm not sure how you increase the odds of either a successful takeover/retaking or getting a sane process of succession afterwards.

Meanwhile, does anyone have a feeling for how many people are serious Bush et. al supporters? I'm not talking about people who vote for Bush or argue for Bush--I'm talking about those who'll do what's necessary to keep the current bunch in power.

#88 ::: Charlie Stross ::: (view all by) ::: June 13, 2004, 10:00 AM:

Coups are inherently destabilizing. A democracy with solid foundations can recover from one, but rebuilding institutions is clearly less desirable than not destroying them in the first place.

What worries me -- as a non-American -- is the nagging suspicion that the root of the rot goes down a long way below the level of the 2000 election. What about the 1960 election? Sure Nixon is no poster child for democracy, but I can see the closeness of the 1960 race and the allegations of gerrymandering in Chicago engendering a general disrespect for democracy in young right-wingers watching their first election ... the very generation who're in the White House today.

What I can see from here looks a lot like slow institutional rot, symptomatized by allegations of vote rigging, gerrymandering of electoral boundaries, negative campaigning driven by huge corporate donations, and sub-50% voter turn-outs. Compared to these problems, the question of whether Diebold voting machines print a receipt or not is like rearranging the deck chairs on the proverbial sinking liner. And even if you get Bush out of the White House and nail down the voting machines, you still have to deal with these problems.

#89 ::: Charlie Stross ::: (view all by) ::: June 13, 2004, 10:03 AM:

Sorry, don't mean to preach. I'm just getting a bit upset looking at the prospect of the Beacon of Democracy guttering and smoking ...

#90 ::: Graydon ::: (view all by) ::: June 13, 2004, 11:12 AM:

Charlie's list is much of why I was commenting about corporates.

The essential thing about large corporations as the ~70% of the whole population who work experience them is that they're completely autocratic.

They don't have to be; they argueably should not be, because the other organizational models work better, but, here and now, they are.

Which means that a fundamental tennet of democracy -- that anybody's opinion is as good as anybody else's -- is obvious nonsense as people live their actual lives. It wasn't ever true, in some strict factual sense, but the idea that everybody should be asked and listened to, the right of refusal, the obligation to make a sensical case for policy, is emotionally out the airlock for a big fraction of the people whose daily sustenance has required them to make an accomodation with total autocracy.

They just plain don't believe their opinion has much worth, or weight, or necessarily even ought to.

Charlie --

So far as I can tell, there's two things going on (besides the corporate-autocracy thing, which is a general and nearly universal problem); one is that there are a bunch of folks who concluded that any government that would use force of arms to make them treat black people as equals is illegitimate and has to be destroyed, and the other one is the utter determination to keep relative social place despite massive technological change.

The latter happens all the time; it usually succeeds, which is why the Rise of Europe remains such a stunningly unusual thing, historically. It's disturbing that there are fewer public voices demanding the benefits of change, or that even Nancy Regan can't get "stem cell research might have helped Ron" reported as a fact, rather than the deluded, over-hopeful assertion of the grieving widow.

The former, though, that's the thread that unites the whole of this gang who aren't in it for the oil. (and the old-style social status from the old-style wealth.) If we evolved, we all have black ancestors, and being of the tribe of pale pink people makes us mutants, and late and geographically isolated mutants at that, to cope with cold foggy places; if genes are real and science meaningful, there really aren't any significant differences of capability between one ethnicity and another, and a whole edifice of justification for social status collapses into a cloud of dust. (Next time you wonder why the total commitment to creationism, even when they know they're lying, think about that.)

I think this is where the attack on the common burdens comes from, too; taxes are illegitimate because an illegitimate government, one which won't support the morality which supports "our" social supremacy in perpetuity, collects them.

#91 ::: Erik V. Olson ::: (view all by) ::: June 13, 2004, 11:21 AM:

Worse, the Beacon of democracy has the ability to destroy any city, any where, at any time. While we're a democracy, or even a republic, this is okay. (Not good. Okay.) Now that we're becoming an empire?

Imagine Rome with nukes. Carthago delenda est.

Which is why I keep telling people from 'advanced' civilizations like Canada, Japan, and Australia one thing.

You need nuclear weapons. Now. Not chemical, not biological, and you can't afford conventional. The only way to truly be safe from the BushCo empire is to be able to destroy it.

#92 ::: Stuart ::: (view all by) ::: June 13, 2004, 11:29 AM:


I think you are correct about the depth of the rot. Remember that Heinlein predicted in his future history that the US would go through a period of fundamentalist religious dictatorship. He grew up in the American mid-west and I think he had a good feel for how his neighbors viewed the world and where our society would go over time.

I live in Texas now and the people here scare me.

#93 ::: in medias res ::: (view all by) ::: June 13, 2004, 12:03 PM:

Linkmeister: Re: "Paper ballots from 100 may go uncounted..."--thanks for the follow-up. The link takes me to the Sun which lets me know that the url may have changed. So I searched by the reporter's name and up came pages of stories, but curiously not the one you cite from May 20th. Not listed at all. Hmmmmm. Wonder what happened there?
[] takes you to the relevant page.
Nutbar conspiracy theory, anyone?

#94 ::: Alex von Thorn ::: (view all by) ::: June 13, 2004, 12:13 PM:

1. What are the odds that it’s always been within the law that the President has the right to flat-out ignore the law, but we’ve just never noticed it before? Wouldn’t Richard Nixon have noticed it, at the very least? All things considered?

Unfortunately, the scary truth of any democracy is that the leadership can do anything if the people don't object. Laws may only be relevant when and if an issue comes to court.

Which makes democracy itself the ultimate check and balance. If a chief executive screws up, you can toss the bastard out.

2. When your local returns been tabulated on Election Day, what action can you take if you think the voting machines in your area have been rigged to give false results? Any suggestions?

One of the fundamental processes of any democratic system that actually works is that partisan scrutineers from all parties can directly observe all parts of the process except for the secrecy of the ballot itself. Political parties station people at polling places and watch everyone coming in and out, every identification of voters, the setup of the polling place and the ballot count afterwards. Because these people are not allowed to display any political affiliation, it is often not clear to voters that these people are partisan, and that is as it should be. Most voters do not realize this happens. I don't know exactly how this works in the US, but I do know that the parties have plenty of volunteers.

In fact this is exactly how the system works. A broad-based political party should have enough people that if the vote itself is interfered with, the scrutineers get the message to the parties and the parties get the message to the voters directly through volunteers known personally by individual voters, not through the media.

This is one of those meta-constitutional natural law issues. Having the process be visible to the parties ensures transparency. This doesn't guarantee that electoral irregularities won't happen, it only ensures that people will hear about it when it does. This is why international inspectors are needed in new democracies that don't have these traditions. As per your first question, it doesn't really matter how the law itself is written; this is not a process created in law (though election laws often regulate it), it is a process which must exist in advance in order for the entire political and legal structure
to function democratically.

3. Given that (a.) anyone who has any expertise in intensive interrogation knows that tortured prisoners will tell you anything they think will get you to stop hurting them; and (b.) given that it’s a disastrously stupid move to plan your operations and allocate your resources on the basis of such worse-than-nothing “intel”; and (c.) given that we have a fair number of experts who know all those things who are working in our government and military who know all those things in detail, what do you suppose was the actual point of getting advance permission to torture prisoners?

Obviously, this is not about military intellience. This is about political posturing. It doesn't matter if the military operations are based on sound information; the point is simply to have military operations.

On the first anniversary of 9/11/01, the Bush administration came under attack from the political right for "not taking action against terrorism". The Iraq invasion was the response to that criticism, they needed to find an enemy who (a) they could easily beat and (b) who could be linked to the terrorist attack (through propaganda). As there are no real military objectives in Iraq, even false intelligence is useful because it provides reasons for photo-op military actions. As the objective is purely domestic and political, even actions which have the result of bringing new recruits to the Iraqi resistance help the US cause by creating an enemy to fight. By this kind of propaganda logic, every American soldier that dies demonstrates how dangerous the Iraqis are, and this provides a justification for ongoing military action. The real objective is simply to keep the Bush regime in power; a "war president" has no value if there's no war.

This is one of those issues which makes an election a kind of national IQ test. The facts are available, the question is whether the people are smart enough to understand what they can see instead of trusting what they are told.

#95 ::: Charlie Stross ::: (view all by) ::: June 13, 2004, 01:26 PM:

Graydon: thanks, I hadn't mentally connected young-earth creationism with anti-democratic pressure before but it makes sense. (One to add to your radar: posthumanist ideologies that insist AIs or uploads that think faster/better than us unreconstructed humans are better than us naked apes. Ahem, please excuse me, I write SF for a living. OK?)

Erik: I like you folks, but it doesn't stop me wishing that Blair would announce that he's scrapping the UK's Trident subs ... and replacing them with a cheaper deterrent (say, nuclear warheads on Storm Shadow missiles carried by Tornado/Typhoon 2) that doesn't come with a made in USA sticker. If your weapons belong to someone else, then you're as good as unarmed.

Personally, I'm hoping the American electorate is smart enough (pace Alex's comments) to respond to events the way the Spanish electorate did, if there's an October Surprise. I don't believe Americans are, in the mass, any stupider than the citizens of any other first-word democracy. I just hope I'm not being over-optimistic here ...

#96 ::: Graydon ::: (view all by) ::: June 13, 2004, 01:49 PM:

Charlie --

I take the whole 'geek rapture' thing as evidence that technical competence does not free one from the sort of bad insecurity management which results in constructing uncontexted hierarchies of worth, which entirely co-incidentally have one's own sort of person at the top.

Hierarchies of worth which are task based make sense, in as much as when you have an engine to fix, you'd rather have a mechanic than botanist; it's when these hierarchies are said to reflect something fundamental about reality, or to construct permanent social order, that thinking has wandered off into la-la-I-can't-hear-you territory.

Yes, the Greek philosophy which so thoroughly influenced Christianity, and pretty much all subsequent Christian thought, axiomatically assume hierarchies of worth; that doesn't mean they were right, just certain.

(Oh, and about those Tridents? The last time Congress asked a US Admiral if the UK could use them to hit 'arbitrary targets', his response, unwound from the polite phrasing, amounted to "how stupid do you think they are?")

#97 ::: Larry Brennan ::: (view all by) ::: June 13, 2004, 01:53 PM:

Erik - I guess that means that we're going to have to count on France and their indy nukes to come to the rescue of the Renaissance Civilization. Zut, alors! Better brush up on those non-ironic recipes for Freedom Toast!

The wheels may have come off the bus, but the bus hasn't gone off the cliff yet. More nuclear powers will be worse than fewer, pretty much always. Sure, our post-WWII allies plus the more upscale ex-Warsaw pact countries are probably stable enough to not go about settling old scores with nukes. But still, the fewer fingers on the button, the better.

Charlie - thanks for the bit of optomism. I, too, hope that the electorate will come to their senses, surprise the punditocracy, and kick this lot out of office. Despite whatever ballot-box shenanigans might happen.

One thing we forget. Ballot rigging is not new. Disenfranchising minorities is not new. We've dealt with it before, and sad as it is to say, we'll probalby have to deal with it again. If there's a system, someone will game it. Thankfully, our system is reasonably self-correcting.

#98 ::: Larry Brennan ::: (view all by) ::: June 13, 2004, 02:11 PM:

Oh, and re: British military independence: I can imagine, during the run-up to the Iraq war, GWB calling Downing Street and saying, "Hey, Tony. I hear London's a beautiful city, lotsa history. It'd be a real shame if something happened to it."

#99 ::: Andrew Gray ::: (view all by) ::: June 13, 2004, 02:22 PM:

Larry - just a picky note... ex-WP countries? There's only the one with The Bomb, Russia. At least, only one that anyone thinks has it...

Belarus, Kazakhstan and the Ukraine all inherited them from the USSR - the Ukraine technically becoming the third largest nuclear power in the process. Belarus declared itself non-nuclear and disarmed by late 1996, Kazakhstan had all of them out of the country by mid-1995, and the Ukraine seems to have got rid of all its warheads by mid-1996.

Romania had a small nuclear program, but it didn't produce any weapons as far as anyone knows - and Soviet policy, AIUI, was quite firmly against giving nuclear weapons to the satellite states.

At the moment... us, France, you, Russia, China, India, Pakistan & Israel makes up the list. (Plus, of course, the three where the presence or absense of nuclear weapons seems to be a function of ones political alignment at the time...)

#100 ::: Larry Brennan ::: (view all by) ::: June 13, 2004, 02:33 PM:

Andrew - I think I may have expressed myself poorly. I was referring to Erik's advice to "advanced" nations that they'd better get the bomb if they don't want to get bullied into the American Empire. In short, a hypothetical Polish or Czech bomb bomb doesn't scare me. Many of the countries that have nukes (e.g. Israel, Pakistan, possibly N. Korea) do scare me. Which is why I said that fewer fingers are better.

#101 ::: Robert Glaub ::: (view all by) ::: June 13, 2004, 02:44 PM:

I and supervise and work with a mostly military shop, made up of all services. My people, especially my senior NCOs, are very upset with how this conflict is being run. They are especially discussed with the events in Abu Ghraig and elsewhere. They believe that the theme came from the very highest levels, even if there were no direct orders given. They can cite chapter and verse as to what laws and treaties have been broken (they are very knowledgeable about the Geneva Conventions, the US Code, and the Uniform Code of Military Justice, as well as the Law of Armed Conflict). They basically want to see court martials and trials and prison sentences, up as high as it goes.

Very few of them will be voting for George Bush in this election.

As for myself, I cannot in good conscience support George Bush for re-election. (waiting to hear sound of TMH plotzing )

Plus there is the fact of the misuse of intelligence. In the intelligence community, everything comes with qualifiers and caveats as to the quality of the information and the veracity of the source, so the recipient can judge the worth of the information for themselves. It appears that a lot of highly dubious information was passed along with the caveats and assessments stripped off and presented as fact. Actions such as this should have severe consequences.

#102 ::: mythago ::: (view all by) ::: June 13, 2004, 03:20 PM:

Tell me again why we *need* electronic voting machines?

For a certain segment of the voting population, the SAT method (filling in an oval with a pencil) is difficult or impossible. Among the few voices for e-voting here, other than local registrars who'd sunk money into Diebold machines, were advocacy groups for the disabled. A talking touch-screen machine is better than Braille if you're blind; if you have problems with your hands or arms, tapping a big square is much simpler than blacking in an oval neatly.

I should note that none of those groups were pro-black-box.

#103 ::: Andrew Gray ::: (view all by) ::: June 13, 2004, 03:28 PM:

Larry: Aha. In that case, I can't help but concur - I wouldn't sleep any less soundly if I found Brazil or Estonia had The Bomb, but on principle, probably not a good idea...

#104 ::: James D. Macdonald ::: (view all by) ::: June 13, 2004, 04:03 PM:

Travel by train or bus rather than plane, using tickets paid for in cash...

The last time I had to travel to Boston by bus, to my surprise, I was asked to provide picture ID even though I was paying with cash. The nice fellow at the all-night convenience store where I bought the ticket dutifully wrote down my name. This was new since the last time I took the bus, a couple of years before.

I suppose this makes us all safer. Either that or it means the terrorists have already won.

Though I suppose that it wouldn't be too tough to make picture ID that would pass with a high-school student at five in the morning, when the National ID Card that they run thorugh the scanner arrives getting around even by bus or train will be that much tougher.

#105 ::: Graydon ::: (view all by) ::: June 13, 2004, 06:42 PM:

Mythago --

The proper, lo! I am not a scamming theocratic lowlife, fix for accessibility is a touch screen, all right; it's a touch screen and a printer, which has been set up to print the lines in on the ballot card.

Which you then take -- the printer has just spat it into your lap -- and examine by eyeball. If all is well, you take it and put it in the optical scanner, which counts it, and stuff it in the ballot box. The scanner that reads the votes into a headphone for the blind is also available, though none of this is in every polling place.

This is utterly COTS tech; Toronto and Vancouver (and I presume other Canadian cities, but those two I'm utterly sure of, having voted in them recentish) both use such systems.

#106 ::: mythago ::: (view all by) ::: June 13, 2004, 06:59 PM:

it's a touch screen and a printer, which has been set up to print the lines in on the ballot card

Er, yes. My comment was addressed to Dan's question about why we would need e-voting when hardy Alaskans get by fine with pencils and paper.

#107 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 13, 2004, 08:02 PM:

Small point of history: Kip Manley is confusing Dick Cavett with David Frost.

#108 ::: James D. Macdonald ::: (view all by) ::: June 13, 2004, 08:15 PM:

For those who need 'em:

The documents of the Nuremberg War Crimes Trials.

I don't suppose it's an accident that the graphic shows a white rose.

Meanwhile, y'all remember PFC England, she of the dog leash? Her defense attorneys have come up with a witness list a hundred names long, topped by Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, Stephen Cambone, and Alberto Gonzales. Looks like they're planning to use the "I was only following orders" defense.

#109 ::: Dan Boone ::: (view all by) ::: June 13, 2004, 11:47 PM:

Er, I think Greydon has just explained how the auditing benefits of a scanned paper-and-pencil system can be extended to the disabled, without any e-voting at all.

As far as I know, in Alaska no such high-tech solutions for the disabled exist; but election officials are available to help anyone who needs assistance filling out their ballots. Obviously that comes at a cost to secret balloting and is not a perfect solution.

#110 ::: Marilee ::: (view all by) ::: June 14, 2004, 12:05 AM:

The WashPost has released a pdf of the 1 August 2002 torture memo:

click on the Exclusive Text link in the right box

#111 ::: Randolph Fritz ::: (view all by) ::: June 14, 2004, 01:26 AM:

"I'm just getting a bit upset looking at the prospect of the Beacon of Democracy guttering and smoking ..."

Charlie, haven't you figured out, yet, that your idol had feet of clay? Up to 1970 or so, things like the Florida election were business as usual in the South. In the 1980s John Ashcroft was cited by a federal court for obstructing efforts to end racial segregation.

Erik, don't be an ass. What wide use of PGP does is make mass monitoring of e-mail difficult, and I said that in the original post. I agree that any individual's system is unlikely to be secure--even without threats, very few home systems are physically secure.

Finally, a ray of hope: cooked elections or no, I expect the Bushies to be out of power by 2010. There are too many problems in the offing, things beyond their control involving currency, climate, ecology, and international politics, that are likely to bring them down.

#112 ::: Raven ::: (view all by) ::: June 14, 2004, 02:08 AM:

Teresa Nielsen Hayden wrote:

What are the odds that it’s always been within the law that the President has the right to flat-out ignore the law, but we’ve just never noticed it before? Wouldn’t Richard Nixon have noticed it, at the very least? All things considered?

If the authority to set aside the law were truly "inherent" in the President, then on what grounds was Bill Clinton impeached?

Indeed, on what grounds could any President ever be impeached, since be definition he could never commit "High Crimes [or] Misdemeanors" — unless he chose not to set aside the particular laws he was violating?

In other words, this memo's assertion contradicts the premise of the impeachment section (Article II, section 4) of the Constitution... not to mention the bit about "he shall take Care that the Laws be faithfully executed" (Article II, section 3).

Alex von Thorn wrote:

Unfortunately, the scary truth of any democracy is that the leadership can do anything if the people don't object. Laws may only be relevant when and if an issue comes to court.

Which makes democracy itself the ultimate check and balance. If a chief executive screws up, you can toss the bastard out.

What are the odds that the Bush Administration, or the Republican Party, would invest this much unrestrained and unaccountable power in the office of President — and then chance letting the opposition party take it away from them?

Aside from the risk of having all that power turned around against them, they'd also risk being held accountable for the crimes they ordered during this term.   Is it at all likely they'd take such a risk by allowing an honest election?

They showed no qualms at all about blatantly lying, or breaking rules, or using every power and opportunity they possessed, to manipulate the outcome of the 2000 election.   They have even more at stake now, and more power to use.

Realistically, what basis is there to expect a sudden outbreak of honesty, openness, and fairness among them, in how the votes are counted this time?

#113 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 14, 2004, 08:39 AM:

Charlie Stross wrote:

"I'm just getting a bit upset looking at the prospect of the Beacon of Democracy guttering and smoking..."

And Randolph Fritz responded:

"Charlie, haven't you figured out, yet, that your idol had feet of clay? Up to 1970 or so, things like the Florida election were business as usual in the South. In the 1980s John Ashcroft was cited by a federal court for obstructing efforts to end racial segregation."

The worry Charlie expresses is a long-established one. Corny though it may sound, American democracy is in fact a source of hope to much of the rest of the world, and when our system sputters, they worry. A lot.

In the decades after the failed revolutions of 1848, America was pretty much the main source of hope for a generation of European reformers. America wasn't their "idol" and they didn't have any illusions over whether it had "feet of clay"; nonetheless, the continued progress of the American experiment was an ongoing encouragement to opponents of kings, Popes, and tyrants.

Likewise, today millions of people worldwide look to America for hope and worry when America malfunctions. It doesn't mean they're naive or stupid, and it definitely doesn't mean they need to be lectured about elementary recent history. To suggest that Charlie Stross, of all people, regards America as his "idol" would be offensive even if Charlie were a stranger. Given Charlie's long record of being demonstrably well-informed, it's doubly so.

I personally think conversations about the current emergency would be vastly improved by a general moratorium on the "What, You Just Figured That Out, Where Have You Been?" rhetorical gambit. Indeed, what that particular routine indicates most clearly is that the speaker is more interested in striking a pose than in actually forming a useful alliance.

#114 ::: Michelle ::: (view all by) ::: June 14, 2004, 08:44 AM:

Dan Boone:
As far as I know, in Alaska no such high-tech solutions for the disabled exist; but election officials are available to help anyone who needs assistance filling out their ballots. Obviously that comes at a cost to secret balloting and is not a perfect solution.

It is my understanding that the lack of secret balloting is precisely the reason that the disabled want electronic voting--so they can vote on their own without having to rely upon anyone else.


It seems to me that it would be entirely reasonable to have one (or several, depending upon the size of the town/city) area set up for electronic voting, and have a van service that ferries those who are disabled to that central location (if they need/want it.)

This would allow those who were disabled to vote by themselves while not forcing the rest of the population to change to electronic voting.

#115 ::: Michelle ::: (view all by) ::: June 14, 2004, 08:45 AM:

Dan Boone:
As far as I know, in Alaska no such high-tech solutions for the disabled exist; but election officials are available to help anyone who needs assistance filling out their ballots. Obviously that comes at a cost to secret balloting and is not a perfect solution.

It is my understanding that the lack of secret balloting is precisely the reason that the disabled want electronic voting--so they can vote on their own without having to rely upon anyone else.


It seems to me that it would be entirely reasonable to have one (or several, depending upon the size of the town/city) area set up for electronic voting, and have a van service that ferries those who are disabled to that central location (if they need/want it.)

This would allow those who were disabled to vote by themselves while not forcing the rest of the population to change to electronic voting.

#116 ::: Michelle ::: (view all by) ::: June 14, 2004, 09:43 AM:

Oops. Sorry about that double post.

#117 ::: Charlie Stross ::: (view all by) ::: June 14, 2004, 09:47 AM:

Another thought:

Part of what's going wrong here can be summed up in one word: monoculture.

Severely disabled folks want electronic voting machines because it means they can vote secretly. Some of us want postal votes so we can vote when we're away from home. More of us want paper ballots with an audit trail so we can authenticate our votes. And so on.

If we temporarily set aside our worries about gerrymandering and conspiratorial politics, what's really objectionable about Diebold et al and their infernal machines isn't simply the nature of the technology (although they need a swift kick in the pants on quality control, security, authentication, and audit trails), but that fact that they're being pushed in as the only solution to a host of different problems.

I think that in the longer term (than this election) a healthy emphasis on enfranchisement over method is in order.

Part of the reason this is worrying me, even though I'm not American, is that there's a strong tendency for the rest of the world to imitate American ideas, even when they're really bad ideas. If you like, chalk it up (as Patrick says) to the folk memory of the time when the USA was the only real working example of democracy in action. The whole e-voting thing is spreading internationally, frighteningly fast. If the worst excesses are curbed in America before they're exported, that's more than fine by me.

(Patrick fingered my concerns perfectly. America isn't the biggest democracy on Earth, or the oldest, richest, or free-est -- nor is it now exceptional, in a decade when more than half the UN seats are democracies. However, for a long time it was the biggest, richest, free-est game in town. And if the American system of democracy collapses, that will be a uniquely disquieting experience for everyone else. The prevailing political orthodoxy of the late 20th/early 21st centuries says that first-world democracies don't go to war with one another and don't collapse without external pressure. If that doctrine turns out to be untrue, it's a disaster.)

#118 ::: mythago ::: (view all by) ::: June 14, 2004, 10:14 AM:

Er, I think Greydon has just explained how the auditing benefits of a scanned paper-and-pencil system can be extended to the disabled, without any e-voting at all.

I guess that depends on what you mean by "e-voting." Certainly, as Michelle pointed out, it's better to have a touch-and-print system (a la lottery-ticket machines) than a system where disabled voters can either violate the secrecy of their ballot, or risk a spoiled ballot because they have difficulty filling it out alone.

#119 ::: Bbruce Adelsohn ::: (view all by) ::: June 14, 2004, 10:30 AM:

I don't think printers by themselves are adequate to solve the issues of e-voting.

Personally, I would like to see ALL e-voting machines tied into high-speed connections (yes, this is a serious point of vulnerability). After each vote, the machines send the data of the vote to three sites: (1) the Secretary of State (or whomever is responsible for tabulating the vote in the state); (2) the state Republican Party; and (3) the state Democratic Party. If all three numbers match at the end of the evening AND if those numbers match with the tabulated results of all the machines' CDs (to which they write after each, or each batch of n, votes), the election is certified.

Otherwise the paper receipts (of which one remains sealed inside the machine's case; the other copy goes to the voter) are tabulated in a recount.

I am not sure I'd trust that system in any event (though having it not run in a Windows environment would go a long way toward that), but at least it has the advantages of cross-checking numbers in several directions, and of retaining tabulatable paper.

#120 ::: James D. Macdonald ::: (view all by) ::: June 14, 2004, 10:55 AM:

Bbruce Adelsohn --

One problem with that is ... suppose someone with a video recorder with a timestamp filmed people entering and leaving the voting place. It wouldn't be too hard to figure out from that how individuals voted.

That's if it's honest. Suppose the number that was sent had nothing to do with what the voter selected?

I'm still trying to figure out what was wrong with those big old lever-action voting machines??

#121 ::: fidelio ::: (view all by) ::: June 14, 2004, 11:05 AM:

The old-fashined lever-action voting machines? Why, they're old. If they're old, they cannot be good. Besides, if they're good, and don't need to be replaced, how can a fine Republican company like Diebold be expected to maximize shareholder value? As Ms. Tomlin observed, no matter how cynical you get, it's impossible to keep up.

#122 ::: David Owen-Cruise ::: (view all by) ::: June 14, 2004, 12:43 PM:

The old-fashined lever-action voting machines? Why, they're old. If they're old, they cannot be good.

The real problem with big old lever operated machinery is that it's really expensive to acquire, really really expensive to maintain, and really really really expensive to individually configure for a voting precinct. They also require a lot of secure storage space between elections, and they're slow for vote tabulation.

Minneapolis saved a boatload of money about twelve years ago by shifting over to machine scanned paper ballots. Our elections go faster, disputes are fewer, and recounts are easier.

#123 ::: James D. Macdonald ::: (view all by) ::: June 14, 2004, 12:54 PM:
WASHINGTON (Reuters) -- More Americans are abusing alcohol than in the 1990s, but fewer are technically alcoholics, U.S. government researchers.


The researchers cannot say why heavy drinking is up.

Maybe they can't figure it out, but I sure have some guesses....

#124 ::: Tom Whitmore ::: (view all by) ::: June 14, 2004, 01:31 PM:

I've got guesses why I'm doing so, Jim. They're probably different guesses from yours.

#125 ::: Lydia Nickerson ::: (view all by) ::: June 14, 2004, 03:32 PM:

Jim, I believe that the problem with the old-fashioned lever-action machines is that they don't permit as accurate a handcount as other systems. When you pull the lever, how can you be sure that it is actually making a mark in the correct column? If it comes to a hand count, a body can see how many marks were made when x lever was pulled, but how certain can everyone be that that lever was programmed to put a vote in the correct column the live-long day? Certainly the individual voter cannot be certain at the time that they cast their ballot. All they can be certain of is what it is that the machine tells them it is doing.

I think that system we use in Minneapolis is actually a very good one. It's been described several times: a paper ballot on which the voter indicates their choice: at various times it's been by connecting the two halves of the arrow, or filling in bars, or filling in ovals. In any case, whatever it is, the paper ballot is first tabulated by the machine, and then the ballot itself is stored. That means that the very same pieces of paper that are used to do the electronic count are also used for the hand-count. It also means that the piece of paper that the voter hands over to the mercies of the election judges is one that they can verify by eye _before it is counted_. It's all very well to vote at a touch-screen and get an paper reciept that tells you what the machine recorded, but if that reciept is not the item retained for hand-count, then the reciept is meaningless. The machine can just as easily record one vote electronically and a different one on hard-copy, and without _hard copy_ to hand count, you're entirely dependent upon a ballot which the voter was not able to verify. There is no way that the voter can verify that the code is counting correctly, only that it is spitting out the correct piece of paper.

Now, you could have people review their reciept, and then deposit it so that it can be used to do hand counts as necessary, which is the opposite of what we do, electronic vote generating a paper ballot, rather than a paper ballot generating an electronic count, but one way or another, there has to be a piece of paper that the voter has seen and affirmed, which is the _same_ piece of paper which is used for hand counts, for the system to make any damn sense. The authoritative ballot has to be one that the voter can read without technological translation.

#126 ::: Randolph Fritz ::: (view all by) ::: June 14, 2004, 06:48 PM:

Charlie, rereading your remarks it seems that we are largely in agreement. (Sigh...I am looking forward to better net access so that I can read at a more leisurely pace.) That said, I think it's more the pre-1960 history to attend to; elections in the segregated South and machine politics in the North. It's not that 1960 was some landmark; the authoritarians are still mourning the loss of the ability to run dishonest elections in most states. We've gotten to the point where Florida in 2000 is an abberation; this is improvement, discouraging though that may seem. And even when the votes are counted honestly, the US system has an appalling tendency to slip into the control of elite minorities. Again, I think the problems the Bushies are ecountering actually represent progess.

Mass democracy is still very young in history, and it seems to me that humans are still not very good at it. I am now reading Lani Guinier's Tyranny of the Majority, which engages some of the problems of the US winner-take-all system, and I commend it to anyone interested in these issues. Guinier's perspective is that of the consistently-outvoted US black minority, however her analysis points up problems that affect many more people.

#127 ::: bluziggy ::: (view all by) ::: June 14, 2004, 09:33 PM:

Too many of you listen to too much liberal media. Undoubtedly, all elected officials have broken laws -- who was around when John Kennedy's father made a deal with the teamsters/mob to rig the elections his way for the primary in 1960? And, if Nixon had insisted on a recount, pollsters claim he would have won. There are no "absolutes" and I find it putrifying when all hell breaks loose if a Republican breaks one of the so-called "laws", but the Dems get a free pass on everything from perjury to obstruction of justice.

It is the President's job to uphold the Constitution of the United States and protect us from all threats -- foreign and domestic. And, if the President has to break a few laws to bring down terrorism -- so be it.

If you're not comfortable with voting machines, vote absentee -- it's a no-brainer.

And, on the subject of the Florida 2000 vote count -- perhaps if the liberal media and the Gore camp hadn't declaired victory before the polls were closed in the West and Hawaii, (3 hours before) those voters would have gone to the polls and Bush would have won -- hands down......

#128 ::: Calimac ::: (view all by) ::: June 14, 2004, 11:06 PM:

1. As others have pointed out, Nixon did make the claim that if the President does it, it isn't illegal. It's worth noting that he didn't get away with that.

2. I like the solution of destroying the electronic voting machines prior to the election. It's the Luddite answer, but it may be the only one.

I have a friend who is an elections department official in a large California county that uses Diebold. It is not one of the counties that's been having conspicuous problems, like Orange or Alameda, which renders only slightly less absurd his claim that Diebold are sterling fellows whose machines give no more, and no more unfixable, problems than came up all the time in pre-electronic voting. He is personally a Democrat, by the way.

This man's disconnection from reality is demonstrated by his having told me that he couldn't figure out why anyone would want paper receipts for electronic voting.

3. One of Seymour Hersh's New Yorker articles actually answered this question. It appears that similar torture procedures in Afghanistan against known terrorists did produce some useful information. (This fact, if it is a fact, does not invalidate Jim Macdonald's point that in general such procedures are inherently unreliable.)

Pleased with their results in Afghanistan, and frustrated by the lack of intelligence regarding the WMD in Iraq, Rumsfeld and his minions authorized the use of the same torture techniques against prisoners there, this time in the hands of amateurs instead of the "professionals" who handled it in Afghanistan.

As DoD clearly did not indulge in this torture for publicity purposes, to me this is pretty strong evidence that they really do believe that the WMD are somewhere in Iraq and just hiding: they're not lying about it, just totally deluded and misled.

Between that and the elections official bamboozled by Diebold, I don't know whether to sob, weep, or cry.

#129 ::: sennoma ::: (view all by) ::: June 14, 2004, 11:39 PM:

Too many of you listen to too much liberal media.

Ahhh, a refreshing dose of "you people". Thanks for the giggle, bluziggy; this thread needed lightening a little.

#130 ::: Larry Brennan ::: (view all by) ::: June 15, 2004, 12:54 AM:

So, what's the Luddite approach to, er, repairing the Diebold machines? Perhaps that keycard slot is loose and need a little gluing?

#131 ::: Nicole J. LeBoeuf-Little ::: (view all by) ::: June 15, 2004, 10:51 AM:
...when all hell breaks loose if a Republican breaks one of the so-called "laws", but the Dems get a free pass on everything from perjury to obstruction of justice.

*boggle* When did we get to Bizzaro World, and how much are the souvenir key rings?

#132 ::: James D. Macdonald ::: (view all by) ::: June 15, 2004, 11:51 AM:

Since Bush's position seems to be that it's okay for the President to order prisoners to be tortured or killed for national security reasons -- the question arises: Exactly what charges are we planning to try Saddam Hussein on?

(And on the question of perjury and obstruction of justice -- since it's the Repubicans' position that anything the president does is legal, clearly it's legal for the president to get after-hours blowjobs then fib about it. Do these guys ever think their arguments through?)

(Oh, and the Geneva Convention isn't a "so-called 'law'" -- it's a genuine law. Ratified by congress and signed by the President. Under the Constitution that Bush is notably failing to preserve and defend.)

#133 ::: mythago ::: (view all by) ::: June 15, 2004, 12:28 PM:

It is the President's job to uphold the Constitution of the United States and protect us from all threats -- foreign and domestic. And, if the President has to break a few laws to bring down terrorism -- so be it.

All right, whoever's trying to make conservatives look like fools, please stop. It isn't funny.

#134 ::: Zeynep ::: (view all by) ::: June 15, 2004, 04:07 PM:

Bluziggy: "Too many of you listen to too much liberal media."

I'm reminded of a T-shirt a friend of mine made as a response to her family's concerns over her meeting in physical space the (scary) people she met over the (scary) Internet: "I *am* the 'scary Internet people'."

In a similar vein, most of the people commenting here *are* the 'liberal media'. Well, not in the sense you probably mean, in that they don't just repeat the "pinko" party line without thinking about it. But the amount of influence and opinions they gain from the media is less than the amount of data they go out searching for, on which data they prefer to form their own opinions.

As to the rest of the discussion, I have the same comment with Andrew Grey: Speaking as someone who has to live with your elections and their knock-on effects without getting to influence them, please go shout...

#135 ::: Terry Karney ::: (view all by) ::: June 18, 2004, 03:51 PM:



To paraphrase from, "A Man for all seasons" if you cut down all the laws what shall protect you."

Or, to quote an idiocy from another war, "We had to destroy the village to save it."

Show me, for the sake of argument, the "hell" which broke loose when the allegatioms of Bush's lack of completion of a legal obligation (Take your pick, the SEC Filing on Harken, or his lapses in his Guard Duty), as compared to the reaction to the (non-perjurious) testimony he gave in a civil deposition?

The issue here is not whether or not crimes have been committed in the past, it isn't even if crimes are being committed in the present, it is rather about the heart and soul of the that, "beacon of democracy" Charlie Stross referred to above.

That you are chastising, "liberals" (like me, the, at this point," career instructor of Army interrogators") for worrying that a doctrine which asserts the President need not obey any law, (even if we limit it to actions in time of war, which we aren't exactly in, at the moment) is more worrisome than anything else you have said, or implied.

Here's a simple test; the other foot question:

How would you have felt if Clinton, or perhaps Carter (using the hostages in Iran) had claimed such a power?

Clinton, for all his faults, took the idea of the law seriously, seriously enough that he chose to answer a frivolous lawsuit, when he could've ignored it (and saved the country a world of grief... no matter which side of the aisle one is on).

Bush, et al, seem (to me) to not give a rat's ass about the law, and haven't so seemed since their posturing (and lying about their aims) in the Flordia mess.

That they are discarding the law ought to come as no great surprise, given everything else I have seen them toss aside as not worthy (the defense of the nation, the readiness of the Army, the moral high-ground of our magnanimous behaviour and the lives of my friends, but I digress) but it is.

My cynicism is not yet complete.

#136 ::: Lenny Bailes ::: (view all by) ::: July 12, 2004, 11:16 PM:

I want to talk about DeForest Soaries and the implications of his request to Tom Ridge. For anyone who hasn't been following this, Soaries would like Ridge to ask Congress for the special Executive power to suspend elections in the event that terrorist attacks occur on or near Election Day.

This seems, to me, to be an appropriately-themed thread to talk about that news; butif you all think it's rude to try to reopen the thread for discussion of this issue, just ignore me.

Avram has some thoughtful commentary on the subject on his LJ.

The bottom line, so far, for me is:

1) I don't want them to postpone the elections, even if a disaster on the order of the Spain railway bombing occurs on or around that Tuesday. I don't see that the Executive Branch taking that action would actually deter that much additional terrorism. And the price for the illusion of safety would be very, very high.

2) The idea of postponing the elections after such a hypothetical attack strikes me, existentially, as an act of cowardice. Spain didn't cancel its elections. I might feel a bit differently, if they uncovered a *real* organized plot to attack polling places in a large number of locations throughout the United States. But even if that were the case, my natural response would be to want to risk my life going to the polls, cast my vote against Republican dictatorship, and keep my fingers crossed.

3) So far, administering national elections has been a state issue, not a federal one. There's not much legal precedent for granting federal authority to suspend national elections; and it would be a really dangerous, probably unconstitutional precedent.

4) Those things being said -- what should our response be, as individual citizens, if the Bush regime actually tries to do it? This is the nervous part, where I'm looking for feedback from smarter, wiser people than me. The first idea that occurs to me is to seed a non-illegal mechanism whereby if national elections are "officially" cancelled, individual precincts may offer the option of staying open, collecting votes, keeping and reporting "unofficial" tallies: to newspapers, broadcast networks, statehouses -- wherever the votes would normally go -- with some voluntary backup systems.

Of course, before it actually gets to that point, I would think we want to generate a large volume of media discussion that discusses legal precedents for and likely effects of DeForest Soaries' proposal. Get it out in the open where it can be talked about and publicly deconstructed -- like so many other "safety policies" of the Bush administration. Soaries' proposal chills me even more than the Diebold voting machines -- particularly coupled with the hard-earned knowledge of all the other standard operating procedures employed by Bush's organization during the last four years.

#137 ::: fidelio ::: (view all by) ::: July 13, 2004, 09:18 AM:

One of the many disruptions New Yorkers endured because of 9/11 was the postponement of local elections--but they rescheduled them for a short time later, and went on and voted on the new date. While that local election was probably not a factor in the planning for the attack, it was disrupted, rescheduled, and then carried out successfully. Of course, that election commission had no reason not to act honestly in carrying out those elections--the weaseling was done in Giuliani's attempt to postpone the turnover to the new mayor.
I can see that a national election could prove to be a tempting time for terrorists planning a big event. I can also see what a golden opportunity this would be for Rove and Co. I think it's better to have a plan in place so that everyone knows what the plan is, and can proceed to carry it out. However, the plan should be to establish an alternate date, one within a very short time from the original one--no later than early December sounds about right. For one thing, if there's a plan in place it's harder for Rove and Co. to push the idea that the election should be postponed altogether--they asked for a plan, they got one. For another, refusal to make such a plan runs the risk of leaving things open to their judgement; it also allows them to claim Congress (the authority responsible for setting the date for national elections, IIRC) failed to handle things effectively.(Obviously, this will be the fault of the Democratic minority, and not the Republican majority.)
I also feel that we have to continue with the election not just for the sake of the democratic process, but because we must prove we can't be deflected from business as usual--if we let Al Quaeda or one of its clones ruin this, they win a round.
What do we do? Contact your senators and congresscritters. Make it plain that while a plan is not a bad idea, it has to be one for a short postponement, not a cancellation or a long delay. Suggest, tactfully, that the only way the administration and the Republican Party (if yours are Republicans) can avoid being accused of subverting the democratic process is to accept such a plan--anything more drastic suggests they don't dare face a fair election. Should your elected representatives be Democrats, say it makes sense to have a plan, but it needs to be a fair plan, not a design to allow the administration to avoid facing the voters. If they don't want to deal with these people as a dictatorship for life, they need to be sure the excuse of a terrorist attack doesn't provide Rove and Co. with justification for that very thing. If there's a plan, they can demand it be adhered to.

Also, contact your local election commission to see if there are openings for election clerks and such. These people are vital to the fair administration of elections. There need to be enough on hand, whether we have hot and cold running terrorists on hand or not. Judging by the local crop, it's an aging group, and new workers could be helpful in any case.

#138 ::: Xopher ::: (view all by) ::: July 13, 2004, 11:30 AM:

I think the things Teresa dreaded after the 2000 fiasco are starting up. If they get the power to suspend or "postpone" the election if there's a terrorist attack, then there WILL be a terrorist attack. Unless Bush is running well ahead in the polls.

I trust these people as far as I can throw Olympus Mons.

#139 ::: fidelio ::: (view all by) ::: July 13, 2004, 12:20 PM:

Xopher, the reason I can accept legislation allowing only a postponement to a reasonably close date (somewhere between a week and a month away) is because that limits their options--if the question is left open, with any angle at all for "discretion" anywhere, we run the risk they'll play it for whatever they can get. I think our chances are better if it's plain that there's a specific limit that's acceptable, and that the choice is not up to the executive branch. I'm unconvinced of the nonpartisanship of the Supremes, although I am convinced they aren't all that amenable to bullying--perhaps they could be petitioned to decide if there was good cause to postpone, and to name the date, within the statute's limits.
I want the issue nailed down, without wiggle room.

#140 ::: Lois Fundis ::: (view all by) ::: July 13, 2004, 01:02 PM:

As I've recently speculated on my LJ, there must be about 100,000 polling places in this country, in all 50 states and the District of Columbia. An event of the scale of the Madrid bombing, or even of Sept. 11, isn't going to affect more than a relative few of them.

Add onto that the number of other Federal, state, and local issues (it's not just a Presidential election, although that gets 99% of the media coverage) to be decided, and the presumption in the Constitution -- based on the original idea of the nation as a collection of (quasi-)sovereign states* -- and the obvious thing is to let each state decide, in the face of any terrorist attack that might, or might not**, happen, for itself what they want to do in that event.

And as for a terrorist attack influencing the election, if certain "elected" officials haven't been doing such a good job, that should in itself be all that's necessary to influence the election. More specifically, if they've proclaimed themselves busily working to prevent terrorism, and fighting against those they think are behind it, and yet terrorism still happens, then it would be obvious they weren't doing what they said they would, wouldn't it?

*Conservatives always seem ready to argue "States' Rights" except when they think the majority of states will not go along with them. That's when they want the Federal government to act.

** So far, they don't seem to have done a good job of predicting these things.

#141 ::: Xopher ::: (view all by) ::: July 13, 2004, 01:20 PM:

fidelio, they're already way past their Constitutional authority. They break the law with wild, unsupported legal theories as to why it's OK. If we give them ONE WEEK, they'll make it four, or seven, or however long it takes them to make sure they'll come out on top. And if they never are sure, they'll just keep postponing indefinitely, and put down protests with force.

GIVE THEM NOTHING. Any scrap of excuse these people have to turn this into a permanent one-party police state, they will jump on. They already have made moves in that direction.

My poor country is being run by people who ought to be in prison.

#142 ::: Lenny Bailes ::: (view all by) ::: July 13, 2004, 02:40 PM:

What I want to think about is:

1) What moral, practical, and legal objections to Soaries' proposal could be sent to Congress people? Why would giving Bush the power to postpone national elections be unwise, unnecessary, and illegal (or at the least, establish a disturbing legal precedent)? (There may be some rational opinion expressed here that we actually *can* trust them to postpone the national election for a couple of weeks and reschedule it and that that would be a good idea. I don't see it, yet. Why do we think terrorists wouldn't just attack again on the new date? Do we want to encourage them to try to knock the pins over every time we schedule a vote?)

2) Possible civil responses to a fait accompli, if Congress does give them the power to postpone elections. It may be a bit early to talk about that -- but my immediate reaction is to become curious about legal and strategic issues around a nationwide protest on the part of state and local precinct personnel. Would local police be likely to bar access to a polling place that was "unofficially open?" Would local precinct people have the ability to open polling places on an unofficial basis, collect votes and turn the results over to broadcast networks? What legal repercussions might they face for such activity?

Sorry. It comes from being habituated to thinking about worst case scenarios in bad parallel universes -- and watching our own probability lines converging in disturbing patterns.

#143 ::: Lenny Bailes ::: (view all by) ::: July 13, 2004, 05:26 PM:

Condoleezza Rice has repudiated Soaries -- which, I suppose, is good news.

"We've had elections in this country when we were at war, even when we were in civil war. And we should have the elections on time. That's the view of the president, that's the view of the administration," Rice told CNN on Monday."

#144 ::: Xopher ::: (view all by) ::: July 13, 2004, 05:49 PM:

It's good news. Even if it would have blown up in their faces had they tried it, it's too big a risk. With the GOP controlling all three branches of government, and the Fourth Estate rolling over and doing tricks, I was getting scared there.

#145 ::: fidelio ::: (view all by) ::: July 13, 2004, 05:49 PM:

Lenny, as I understand the Constitution of the US, the US Congress has the right to set the date of elections to the US Congress and to the Presidency. They, and they alone, have that right--it's in the first article of the Constitution, which covers the Congress, and again in the second, which covers the Presidency. If I understand the document correctly, the date for the presidential election must be uniform throughout the country. (This is why I want Congress to act on Soaries' proposal--whether they reject it, or set an alternate date a week away--agreeing to skip it is right out. I want them to reassert that they, and they alone, get to set the date. I realize that this may not discourage the determined, but I want it restated, by Congress assembled.) The US Constitution gives the federal government no real say in state and local elections.

State and local elections are governed by the various state constitutions. For example, in Tennessee, the right to supervise elections is held by the General Assembly, although the Constitution of 1870 gives the dates that they should be held on. In Tennessee, the direct management of elections is handled through local election commissions, which are answerable to local authorities, although supervision and guidance is handled through the state's secretary of state, who appoints a coordinator of elections. A local commission could, I suppose, decide to open their polling places, but unless the General Assembly had decided that was the valid date for an election it wouldn't be worth squat.
Different states may hadle things differently; I recommend you investigate your state's constitution for your local procedures. It took me about 5 seconds to find Tennessee's constitution online, so this shouldn't be too hard to check out.

As far as your second query, since the local commission controls the ballots, voter rolls, and equipment, I don't think individual election clerks and judges could get very far without their local commission behind them. Please note, again, that it's supposed to be the US Congress who sets the date for national elections. A presidential election on a date not authorized by the US Congress is unconstitutional. They would be within their rights to reject electors selected on any day other than the one they choose.
I suspect most states have followed the pattern set by the US Constitution, and reserve the right to set state and local election dates to the state legislature. If we did find ourselves delaying a national election, it does not appear that the federal government may also enforce or require a delay in any state or local elections, They have no legal authority to do so.

Of course, what the law, including the various constitutions say, may be more important to us than to some others. However, I now refer to the First Article of the Tennessee State Consitution (the Declaration of Rights), and specifically, to Section 2: That government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd,
slavish, and destructive of the good and happiness of mankind.
It looks like my state thinks I have a positive duty to resist abitrary power and oppression.

As for the arguments to use on your senators and representative? First of all, no matter what their allegiance, any law they pass about this must not give up Congress's right, under the US Constitution, to set the election date [forget my earlier comments about the Supremes deciding if the situation warranted it--bad precedent]. Whatever their allegiance, they can all grasp it's a bad idea to give up power. Next, which party do they belong to? What are their personal inclications? Not all conservative Republicans, by the way, would be prepared to give Shrub the keys--many are pretty Constitution-proud, and won't always roll over for him. The argument will vary--Nancy Pelosi wouldn't need much telling, Bill Frist will need to be hit with a hammer. Think about what you can live with--Xopher has stated very plainly he doesn't want any change, I'm willing to accept a minor delay but no more (to allow for things like an attack in the middle of the voting, clearing away debris or finding alternate polling places); others will have their own take on the matter. Give reasons--and "We'll look like wimps overseas" and "The terrorists will win if they make us delay the election" are good reasons, even if they sound calculated to appeal to people who feel the need to rename French fries. Too great a delay, especially after the example the Spaniards set, would make us look like we had a glass jaw. Remind them that all elected officials, including the president, serve at the pleasure of the electorate, and cannot compel their reelections, and that questions about the legitmacy of an unelected, past-due administration may affect our credit standing in foreign markets--that federal debt has to be picked up somewhere, and a lot of the money is coming in from overseas. Research your people--what Xopher can write to Schumer and Clinton will differ from what I can write to Frist and Alexander, if I hope to be effective.

#146 ::: fidelio ::: (view all by) ::: July 13, 2004, 06:01 PM:

You believe Condi?!

#147 ::: James D. Macdonald ::: (view all by) ::: July 13, 2004, 06:25 PM:

The Madrid train bombings didn't touch a single Spanish polling place, yet are widely seen as having changed the election in Spain. (This despite the fact that every government that has allied itself with Bush, with or without local terrorist activity, has lost in their country's recent elections. I don't think the bombing made a difference.)

Now ... I think the argument here is that a terrorist attack, rather than making it impossible for folks to vote, would alter the election by changing who people would vote for.

To that end: I think it's likely that Osama bin Laden will launch a terrorist attack on US soil near election day, in an attempt to get Bush re-elected.

#148 ::: Xopher ::: (view all by) ::: July 13, 2004, 09:36 PM:

I agree, James. And I think the Bush administration will make sure they "miss some connections" to allow that to happen if they think they're going to lose.

I think we're talking Reichstag fire.

#149 ::: Lenny Bailes ::: (view all by) ::: July 13, 2004, 10:16 PM:

Fidelio: Thanks for tips on what to say to congress people and clarification on where the authority to set the national election date resides. I wasn't actually thinking that a national "protest election" would be recognized as legally binding. I was thinking about what individual citizens could do to send a message that indefinite postponement of the election would not be tolerated.

Jim points out that Al Qaeda may not interested in stopping the election, per se (and why the Bush administration may not be interested in indefinite postponement). We can't do much, as individuals, to affect Al Qaeda's thinking on the issue -- other than, I guess, collecting a large block of signatures declaring that a terrorist attack won't change our voting intentions.

We do have, theoretically, more ability to affect whether a terrorist attack causes the election to be rescheduled -- which still doesn't sound like a great idea, to me. Soaries' proposal to turn the decision over to Bush seems to be dead, for now.

#150 ::: James D. Macdonald ::: (view all by) ::: July 14, 2004, 02:16 PM:

In other news: Six Million to Lose Overtime Pay. (Thank you, Republican Party!)

What we have to do is write. Write to ink-on-paper periodicals, write to politicians. Write to everyone. The web is all very well, but ... that's not where we have to get the word out.

It's a small thing; all I'm asking of anyone is a sheet of paper and first-class postage.

#151 ::: James D. Macdonald ::: (view all by) ::: July 14, 2004, 02:17 PM:

In other news: Six Million to Lose Overtime Pay. (Thank you, Republican Party!)

What we have to do is write. Write to ink-on-paper periodicals, write to politicians. Write to everyone. The web is all very well, but ... that's not where we have to get the word out.

It's a small thing; all I'm asking of anyone is a sheet of paper and first-class postage.

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