51 They're only anonymous if nobody makes even the slightest effort to identify anyone... and here, in East-Central Redneckistan, that effort is less trivial than breaking a ROT-13 encrypted message after you're told it's a ROT-13 encrypted message. Those who are conducting exit polls (and, for that matter, challenges) in the rural/semirural areas of the Midwest often know everyone in the extraordinarily small precincts we've got here. The contrast between what I observed in the 1984 US elections in Illinois and the by-elections and national elections I observed in England a couple of years later was astounding... and that contrast can only have increased since.
My point remains, though: Y'all can't wait twelve hours for reliable results?
17 Or, you could do like I do when confronted by someone taking an exit poll:
What part of "secret ballot" did you not understand? But first, I need to see your KGB identity card!
I've spent enough time in and/or involved with countries that have polls and non-secret ballots to have no respect for exit polls at all — not even as purported checks on manipulating ballot counting. Good [insert name of favored deity/whatever to take in vain here], can't you maroons wait twelve hours for the actual results to start coming in?
Just a couple of follow-ups:
26 I read Teresa's comment as "they were wrong to expect Palin to tell them everything that might be in the closet," and my response was intended to be that "but if McGovern's handlers had been doing their jobs (and following the law), Eagleton's mental health history wouldn't have been a surprise."
28 I'm not a mental health professional. I was, however, a commanding officer for nearly a decade, of units ranging from about 75 (aircrew members) to about 1200 (an aircraft maintenance squadron). I'd like to think I understand the distinctions among "self-confident," "narcissistic traits and arrogance," and "NPD." I've actually met and interacted with enough president/vice-president candidates as a protocol officer to put the ones we've actually gotten into the NPD category.
29, 33, 37 I have a slightly different take on this: I don't think Palin is about the Presidential race; she's about the Senate. By having a right-wing fundamentalist nutcase on the top ticket, the Heffalumps think they'll get more of the "base" to the polls... and thereby, hopefully, keep the Jackasses from achieving a filibuster-proof Senate. It's also about the Heffalumps' inability to think of politics as anything other than a game for the in crowd (which, at least at the national level isn't that much different from the Jackasses).
Two sarcastic asides:
(1) Name a major-party — hell, I'll even include third parties! — candidate for president and/or vice-president in the media age (roughly 1960 and on) who did/does not display substantial elements of narcissistic personality disorder. I can't, and I've tried. And the sad thing is that, thanks to a military tour as Deputy Chief of Protocol at Andrews AFB, I've actually met a fair number of them... and stand by that assessment.
(2) I do, however, have to take issue with one thing that the Fabulous Teresa said:
I take their belief that Palin would self-report any problems as evidence that they didn’t know the woman. The same goes for expecting her to know what happened to Thomas Eagleton when he failed to report a lurking problem.I simply can't agree with this assessment. For one thing, in 1972 there simply wasn't the same "access to medical records" meme that there is now. That, combined with the different attitude toward "hospitalization" for mental health issues at that time, means that McGovern's people should (and, in fact, were required by law to) have explicitly asked if there was any history of treatment for mental health issues... just like there is (and was) on the standard forms for security clearances.*
<sarcasm> Besides, if everyone involved has narcissistic personality disorder, shouldn't getting treatment be a plus? </sarcasm>
* N.B. I have far more experience with all of these issues in my family than I will explain in a public forum.
Many of Jim's imprecations on how to maintain security pale in comparison to the most important one:
Don't give a cryptanalyst a known plaintext by either:
* Extensively quoting something in current events that is also widely quoted in news sources, such as the text of the State of the Union (anything of more than around 900 characters will create enough text to analyze rather thoroughly using 1970s computing equipment and software). This kind of attack is behind how CSS was broken so quickly.
* Avoid unique terms wherever possible, and in particular avoid overrepetition of proper names that will be directly linked to either the sender or receiver. One of the best examples of this is Yardley's decryption of Japanese codes during the World War Interregnum by assuming that they would include extensive repetition of "Irish independence"... in a language that Yardley did not speak.
Or how about "Use a real e-mail program, like Thunderbird, to interface to webmail programs that allow it, and avoid webmail that doesn't"? It's trivially easy to set it up so that one's system automatically logs in... and then deletes stuff off the server automatically.
Sure, it's possible to use a hammer (web browser) to put a screw (individually addressed messages like e-mail) into soft wood (the 'net). It's also not a good idea in the long run, even if it works sometimes.
May I respectfully point out — hell, none too respectfully at all —
that this isn't new? The "new" proposed program at Harper Collins is exactly
how the English publishing industry worked between the incorporation of
the Company of Stationers in 1566 and the final decision of the House
of Lords against the "natural right" theory of copyright in 1789. It
was often the same splits; it was the same concept of splitting profits
rather than proceeds; it included the absence of an advance; it was
based on nonreturnable goods...
... but there is one difference: accounting. In the early English
publishing industry, publishers didn't have the in-house expertise of
Twentieth Century Fox in creatively ensuring that there will be no (or
at least minimal) profits to share.* (Remember who owns Harper
Collins.) Neither did publishers have the industry "tradition" that
allows the publisher to hold money for 270 days with no penalty before
giving the author her miserly share; at least in theory, they paid up
every month. The six-month-plus-ninety-days-to-pay royalty cycle only
came into being around the time of the great battle between Sarjeant
and Macauley over extending the copyright term... in the 1830s.
"New." "Improved." And no surprise at all. [insert chorus here]
* Additional, disturbing note: A source inside the Newscorp empire
has indicated to me a preference for WFH for the new program.
Clarification today (or, rather, unclarification) made it murky whether
that means "contracts offered will assert WFH" or "we intend to acquire
works under a WFH basis." The difference is subtle linguistically, but
radical in practice and legally.
10, 13 I'm afraid that doesn't apply here.
- That statutory authority for the Sergeant at Arms taking action requires that the contempt occur before Congress in session. By not showing up at all, Bolten and Miers evade that possibility. And even then, the Sergeant at Arms's power is restricted to jailing those who show contempt by creating disorder, and there is good judicial precedent that refusing to answer questions and/or not bringing documents required by a subpoena duces tecum does not, without more, constitute creating disorder.
- With all due respect to Professor Askin (the ultimate source of Alan's summary at 13 above), Mukasey would argue that he's wrong here because the statute in question distinguishes between "mere witnesses" and government officials who are called to testify for anything other than the Spending Power. Unfortunately, everything to which Professor Askin cites in his underlying work concerns either nongovernment officials called before Congress, or government officials called before Congress when Congress was exercising its Spending Power (not oversight, which is a much more difficult question both theoretically and in law). NB I'm not advocating Mukasey's interpretation, but merely noting that it's a defensible one.
My point remains this: The purpose of the special prosecutor law is to deal with alleged misconduct within the executive branch that would create the appearance of a conflict of interest if the DoJ made the charging decisions. That is exactly what we have here; and the Attorney General is empowered to call a special prosecutor even — and perhaps especially — when the legal circumstances (not just the factual ones) are unclear. Mukasey has thus, to my mind, failed his first test as Attorney General. (And he would have done so even if he had gone ahead and charged the two — there is no way to remove the appearance of a conflict of interest here, and regardless of the result it will be perceived as biased.)
I don't think Mukasey is right; he does, however, have a defensible position, due to poor drafting of the underlying statute.
That's not to say that Bolten and Miers didn't break the law — perhaps just not the version that has potential criminal sanctions. Due to a drafting error that makes it arguably unclear (at least, arguably unclear to someone looking for a loophole), the criminal contempt-of-Congress statute may not apply to US government officials who are not part of the legislative branch. The civil contempt-of-Congress statute does not have the same drafting error... but it would not be handled by the Department of Justice anyway.
The real distinction is this: In order to get jail time for the miscreants under the civil statute, a judge would independently need to order them to testify as a sanction for their civil contempt. Then, when (no "if" here!) they violate that order, they can be held in criminal contempt of a court order and jailed, without requiring DoJ participation at all. Otherwise, the most that a judge can do under the civil contempt-of-Congress statute is fine the DOBs (descendents of b*tches) and order them to comply with subpoena duces tecem (testify, and bring along all of your documents).
All of that said, what Mukasey should have done — to avoid the appearance of any conflict of interest — is refer the matter to a special prosecutor with a specific charge to determine both whether a criminal act occurred and, if so, whom to charge. Instead, he played politics by forcing the Speaker to act the same way that a purely partisan jerk would act, thereby allowing the wingnut commentators to claim exactly that... regardless of the merits.
IMNSHO, the question here is not whether Bolten and Miers were, in fact, required to appear and testify; there's no doubt, under the relevant statutes, that they were, and that they were required to assert any alleged privilege in response to specific questions from the relevant committee. It is, instead, the procedural question of what to do when they refuse, and who is responsible for taking that action. This is not an excuse for Mukasey — I think his interpretation is wrong, even if it is not so wrong that it's indefensible — but an explanation, and a preview of what might happen next.
86, 95: Steve Bainbridge isn't the hard-core conservative that his writing seems to make him, or that he sometimes claims he is. Really. He's much more reasonable than that. He is a social conservative who takes the philosophy of "what is conservative" very seriously... in the sense that he's against change and against any government role in excess of that absolutely necessary to minimally deal with free riders, not for a radical reversion to a past-that-never-was.
(NB Steve was my professor for securities regulation a decade and a half ago, and although he always brought a conservative/market-based philosophy into the classroom and used that to begin discussions, he never let that squelch the exchange of ideas... and, as a Euroliberal myself who was the same age as he was, I would have spotted that and objected to it in an instant.)
Y'all might be interested in my severely toned-down reaction:
Theocracy Now! Recap
Or not.
In any event, it's the last sentence in the second paragraph that should lead to Huckabee being strung up by the testicles (giving a new implication to "testifying for Christ"): If one actually reads the New Testament — regardless of translation; I'm sort of partial to the Revised New English, but that's because I'm a recovering literary scholar — one will find that Jesus never attacked the secular authorities except in the three instances in which the secular authorities crossed the line into "legislating" on moral issues. Every other instance in which Jesus himself attacked authorities, it was religious authorities... and Jesus seemed not only capable of distinguishing between the two, but implicitly approving of the distinction.
In other words, Jesus appears to have believed in separation of Church and State. Only when some of his disciples went off on their own do we find opposition to the State on religious grounds... and their positions are not "the word of the living god" (to quote Huckabee).
OK, it's time to start a few conspiracy theories. Such as:
* It's the 'net's reaction to Huckabee's "triumph" in the Iowa caucuses
* It's the 'net's reaction to proclamations that McCain's candidacy was reinvigorated by Romney's "disappointing" total in the Iowa caucuses
* Time-Warner has declared for Blu-Ray, and all the 'net-enabled HD-DVD devices are protesting with an AI-initiated DOS attack controlled by various characters in Xbox-only games
I'm sure that others can come up with better ones, but I sort of like that last one.
384 You're asking me to choose between two brands of "not even minimally acceptable," which is something I try to avoid doing.
"Sir, would you rather be drawn and quartered, then hung, or just hung?"
"Is there a non-fatal choice?"
"I'm afraid not."
The election-law scholars I correspond with uniformly agree that Burdick is no longer good law — some due to Bush v. Gore, some due to provisions hidden inside of McCain-Feingold. Basically, Burdick says that "write-ins aren't constitutionally mandated unless there's no other means of ensuring ballot access"; McCain-Feingold, among other things, says "there's no other means of ensuring ballot access". And I can't condense the Bush v. Gore reasoning well enough.
A few miscellaneous observations —
I'm one of the non-white-male-Christians who believes there is little difference between the Democrats and Republicans; both parties are much too conservative for me, and their organizational structures and power games resemble the Renaissance Vatican more than makes me comfortable.
I've been informed that Advise and Consent would probably be in print but for an ongoing legal dispute.
If you really feel that none of the candidates offered on the official ballot are satisfactory, write one in. That's far more effective a protest than merely not showing up at the polling place. No matter what the election monitors try to tell you, or how difficult they try to make it, you have a Constitutional right to cast a ballot for a candidate of your choice... even if that happens to be Zippy the Pinhead. And the election officials have a constitutional obligation to count and announce that vote.
316, 328 Not speaking for Patrick: I think of neither voting nor jury service as "duty."
They're rights and privileges.
It's too bad that the system does not make them attractive enough (specific example: Veteran's Day should become another nonfloating federal holiday, set on the first Tuesday after the first Monday in November — and it should be enforced as a holiday with at least as much vigor as are Xmas and Thanksgiving). They're worth embracing precisely because the choice to embrace them is what those of us who are veterans were actually fighting/potentially fighting for, not because someone says we have to do them.
That's a "privilege," not a "duty."
306 Obviously I wasn't clear enough: I wouldn't "require" them to disemvowel my response because I'd keep it civil. I must admit that message 306 is unusually civil for this poster, who has a history of... well, never mind, let's just say that I'm not that poster's favorite member of the ML amoeba.
I'm sick to death of people who claim that everyone who disagrees with them should be "deleted," even in purported fun. In the present world, that's called (among other things) the Islamic Republic of Iran (or the Bush White House; ideological distinctions are less relevant than sheer ideology). It has had many other names at many other times in the past, and will have many other names at many other times in the future. It isn't funny to me. It probably isn't funny to Jim Macdonald (notice that I said "probably" because I'm not speaking for him, but based only on inferences from our shared former profession).
314 By all means, be casual when casual is called for. Just don't mix casual comment with phrases like "legal consequences," because then nobody can really tell which is casual and which is serious... especially when part of a quotation appears later without the full context. And, especially, don't do so if you're trying to engage in activism on that issue at the same time.
One of the reasons that good lawyers tend to make lousy conversationalists is that good lawyers tend to surround their points with context in a way that is almost as difficult to follow as this sentence, in a conscious or unconscious attempt to avoid miscommunication with someone who reads only the punch line. One of Cory Doctorow's gifts as a writer is that he does a pretty good job with the punch lines; one of the problems I have with him as a public intellectual is that, when he's excited, he tends to separate his punch lines from context in a too-often misleading way. Of course, most of us fall prey to that latter problem in one way or another.
Unfortunately, there's also a converse to the above: Most lawyers who are pundits tend to be very, very sloppy about ensuring that their Fox News-style soundbites have any links to their underlying contexts whatsoever (that is, they're not good lawyers... but that's an argument for another time). The various commentators on the OJ trial were a depressing, but all too typical, example: Every single one who appeared on the national networks in the two days after the verdict gave a misleading explanation of the verdict, because they failed to note that the burden of proof is so extraordinary. And most of the public comments on the Grokster decision from the Supreme Court failed to account for the procedural posture of the case: Not that the Supreme Court held Grokster et al. liable, but that the trial court should not have exonerated them and should have allowed the matter to go to trial.
243 Yeah, I think I was unclear, Patrick: I wasn't intending to go at Cory in particular with that closing comment, but the vast spread of ignorant BS that has been spouted on the whole scribd situation, which I view as various attempts to turn six or seven wrongs into a right. However, I was hasty in how I posted, and that got lost. Completely. My bad.
To make it perfectly clear:
* scribd's system was and remains (at the moment, subject to other behind-the-scenes maneuvering) improper;
* the particular individuals who posted pirated works from the quasicanonical collection were in the wrong;
* Mr Burt's method of trying to deal with scribd's infringements was wrong;
* scribd's nonresponsiveness was wrong;
* Mr Doctorow's misuse of legalisms, and assumption of ill intent, in attacking Mr Burt was wrong;
* SFWA's response was wrong;
* Various purported "activists" (not Mr Doctorow, who at least backed off once he had made his point once) who tried to paint all of SFWA, or even all of the committee in question — and I'm a member, who advised going slow — with ill will on the basis of one member's carelessness were wrong;
* EFF's counsel's purported "defense" of scribd was wrong;
And I'm not going to go any farther, although I'm not done. I hope you get the idea. Nobody has the moral high ground here, and some of my own rhetoric has been excessive. That's why I made the comparison to "holding one's breath until one turns blue" to impossible misstatements of legal consequences.
236 I will not require Patrick and/or Teresa to employ the disemvowelling engine to deal with this particular bit of BS, except to suggest considering the character of Dick the Butcher, and ask why he wanted to do that thing. And if the poster doesn't understand that allusion, perhaps he should read all of whole scene 2 at a minimum. I don't defend everything about the legal profession — hell, it needs a lot of reform — but this is excessive, particularly in this context.
205 Midori, I'm afraid you misused a technical term. Without defending what went on as proper, it was not "perjury," whether under the DMCA or any other provision of law.
For one thing, the purported DMCA notice that was issued was not a DMCA notice. It did not have all of the elements required by 17 U.S.C. § 512(c). Calling it a "DMCA notice" in a later e-mail doesn't make it one... especially since the notice itself did not state that it had been signed under penalty of perjury. If the notice did not comply with the specific statute, then one must look to the general perjury statute.
Perjury is a specific-intent offense — that is, one must intend to commit it. One of the elements of perjury is that one knows, at the time the statement is made, that it is false. It is pretty clear from everything that has happened that at best, Mr Burt should have known — but did not know — that his search procedure (which, as noted above, did not result in a DMCA notice in the first place) included false positives, like Mr Doctorow's work. Then there's the question of standing and materiality (complicated concepts that basically boil down to "a party who suffers no legal harm from a misstatement has no remedy regarding that misstatement").
Neither, of course, was Mr Burt's statement "fraud," another specific-intent offense. This was one of many rhetorical errors committed by Mr Doctorow in the course of his (understandable) rage — an error symptomatic of everything else. (NB: Patrick, I am not attempting to open old wounds or anything else; I realize that you disagree that Mr Doctorow's rhetoric was excessive, but regardless of that disagreement he clearly misused terms with specific legal meanings to improperly imply specific legal consequences.)
Of course, the ultimate irony of this entire situation is that some of us who continued to use the system quietly have managed to obtain the result that SFWA originally wanted. Contrary to public statements by certain people who don't know what has been going on, scribd's recent public statements that it will consider prescreening result from those quieter efforts — not from anything SFWA did/is doing.
All of which is a somewhat roundabout plea for people to ensure that they know what they're talking about before they use technical terms regarding legal situations. It is not lost on me that Mr Burt would have been well advised to do so himself.
| Year | Number of comments posted |
|---|---|
| 2008 | 13 |
| 2007 | 13 |
Total: 26 comments. View all these comments on a single page.
The most recent 20 comments posted to Making Light by C.E. Petit:
Show all comments by C.E. Petit.