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.

Posted June 11, 2004 12:11 PM by C.E. Petit

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.)

MKK

Posted June 11, 2004 12:15 PM by Mary Kay

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.

Posted June 11, 2004 12:20 PM by ElizabethVomMarlo

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.

Posted June 11, 2004 12:30 PM by Jo Walton

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.

Posted June 11, 2004 12:36 PM by Ayelle

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.

Posted June 11, 2004 12:48 PM by bellatrys

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.

Posted June 11, 2004 12:55 PM by mythago

(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.

Posted June 11, 2004 12:57 PM by Adam

"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.

Posted June 11, 2004 12:57 PM by en_ki

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.

Posted June 11, 2004 1:04 PM by Kip Manley

#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?

Posted June 11, 2004 1:07 PM by Catie Murphy

[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...

Posted June 11, 2004 1:22 PM by Andrew Gray

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.

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

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.

Posted June 11, 2004 1:26 PM by Claude Muncey

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?

Posted June 11, 2004 1:39 PM by Bryan

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.

Posted June 11, 2004 1:40 PM by Matt Austern

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.

Posted June 11, 2004 1:47 PM by sennoma

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.

Posted June 11, 2004 1:51 PM by Claude Muncey

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.

Posted June 11, 2004 1:53 PM by Andrew Gray

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.

Posted June 11, 2004 2:01 PM by mythago

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.

Posted June 11, 2004 2:09 PM by Adam Rice

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.

Posted June 11, 2004 2:36 PM by James D. Macdonald

Jack Balkin - http://balkin.blogspot.com/ - 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.

Posted June 11, 2004 2:43 PM by Clark E Myers

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 http://catless.ncl.ac.uk/Risks to read recent issues, and to find archives of old ones.

Posted June 11, 2004 3:31 PM by Bill Higgins-- Beam Jockey

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.

Posted June 11, 2004 3:37 PM by James D. Macdonald

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... ;-)

Posted June 11, 2004 4:09 PM by Andrew Gray

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

Posted June 11, 2004 4:10 PM by Xopher

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.)

Posted June 11, 2004 4:22 PM by Lenny Bailes

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.

Posted June 11, 2004 4:25 PM by Bob Webber

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.

Posted June 11, 2004 4:40 PM by bryan

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.

Posted June 11, 2004 4:55 PM by CHip

Good point, Chip.

Posted June 11, 2004 5:23 PM by mythago

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.

Posted June 11, 2004 5:36 PM by Clark E Myers

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.

Posted June 11, 2004 6:38 PM by Marilee

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?

Posted June 11, 2004 6:39 PM by Fontana Labs

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.

Posted June 11, 2004 7:10 PM by Avedon

"...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.

Posted June 11, 2004 8:28 PM by Linkmeister

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

Posted June 11, 2004 10:09 PM by Erik V. Olson

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.

Posted June 11, 2004 10:27 PM by Graydon

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.

Posted June 11, 2004 11:10 PM by Terry Karney

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.

Posted June 11, 2004 11:41 PM by Hal

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?

Posted June 12, 2004 1:41 AM by James D. Macdonald

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.

Posted June 12, 2004 2:04 AM by Graydon

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?"

Posted June 12, 2004 3:01 AM by Dave Bell

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?

Posted June 12, 2004 3:11 AM by squiddy

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.

Posted June 12, 2004 3:16 AM by in medias res

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."

Posted June 12, 2004 3:40 AM by Linkmeister

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?

Posted June 12, 2004 4:11 AM by Lois Fundis

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.

Posted June 12, 2004 5:00 AM by Yonmei

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.

Posted June 12, 2004 5:37 AM by Adrian Bedford

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.

Posted June 12, 2004 7:11 AM by Kathryn Cramer

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...

Posted June 12, 2004 8:11 AM by Chad Orzel

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

Posted June 12, 2004 8:22 AM by Andrew Gray

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.

Posted June 12, 2004 9:51 AM by Connie

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.

Posted June 12, 2004 10:54 AM by Elric

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.

Posted June 12, 2004 11:38 AM by Karen Sideman

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.)

Posted June 12, 2004 12:00 PM by James D. Macdonald

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.

Posted June 12, 2004 12:15 PM by julia

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.

Posted June 12, 2004 12:37 PM by Erik V. Olson

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.

Posted June 12, 2004 1:41 PM by Randolph Fritz

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.

Posted June 12, 2004 2:14 PM by James D. Macdonald

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.

Posted June 12, 2004 3:06 PM by mythago

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.

Posted June 12, 2004 4:10 PM by Scorpio

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."

Posted June 12, 2004 4:11 PM by Teresa Nielsen Hayden

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.

Posted June 12, 2004 4:24 PM by Teresa Nielsen Hayden

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.

Posted June 12, 2004 4:33 PM by mythago

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.

Posted June 12, 2004 7:10 PM by Andy Perrin

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

Posted June 12, 2004 7:27 PM by James D. Macdonald

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.

Posted June 12, 2004 8:09 PM by Jo Walton

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.

Posted June 12, 2004 8:09 PM by Andy Perrin

Make that, "It may also be malicious."

Posted June 12, 2004 8:13 PM by Andy Perrin

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...)

Posted June 12, 2004 8:20 PM by Yonmei

"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.

Posted June 12, 2004 8:52 PM by Randolph Fritz

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.

Posted June 12, 2004 9:39 PM by Graydon

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.

Posted June 12, 2004 9:44 PM by Erik V. Olson

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.)

Posted June 12, 2004 10:02 PM by Larry Brennan

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.

Posted June 12, 2004 10:20 PM by Graydon

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

Posted June 12, 2004 10:27 PM by mythago

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.

Posted June 12, 2004 11:01 PM by Larry Brennan

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.

Posted June 12, 2004 11:22 PM by Lois Fundis

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.

Posted June 13, 2004 12:28 AM by bellatrys

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.

Posted June 13, 2004 12:43 AM by Marilee

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.)

Posted June 13, 2004 1:10 AM by Larry Brennan

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.)

Posted June 13, 2004 1:35 AM by mythago

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.

Posted June 13, 2004 2:00 AM by Dan Boone

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.

Posted June 13, 2004 7:36 AM by Charlie Stross

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.

Posted June 13, 2004 7:58 AM by Charlie Stross

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.

Posted June 13, 2004 9:34 AM by Nancy Lebovitz

Coups are inherently destabilizing. A democracy with solid foundations can recover from one, but rebuilding institutions is clearly less desirable than