the mojowire

Memo to NSA Cubicle Dweller Reading This...

Look, I don't think you are a bad person per se... I don't know you anymore than you really know me, so don't take this personally... but you should really look into an honest line of work.

I hear driving trucks can be a fulfilling experience...

So when you get around to it, pass this up your chain of command. NSA Senior Leadership: YOU SUCK!

All Groklaw ever did was try to explain legal issues to people in a relevant and entertaining style, while being informative. Now I am not saying she was targeted or that she was the victim of some government conspiracy or plot...

No, she is what you people like to refer to as "collateral damage." The kind of "Broken Eggs=Omlettes" thinking that let you generally abuse the rights of your fellow Americans and then sleep soundly at night.

The country that put a man on the moon, wired the world and turned the tide against the most evil and destructive regime ever conceived on this planet did it on the principle of freedom of expression and the freedom to exchange ideas on the Public Common.

So sleep tight knowing that you are systematically and rapidly dismantling 200-some years of the fruits the Enlightenment Era.

Of course, you might want to ask permission from your Zampolit to go look up "Enlightenment Era." For all I know, that might now be considered "weapons grade philosophy."

You want talk about it in person? You know where I'm at; of that I am certain...

mojo sends

The Perils of Legal Positivism: The Real Question About the Zimmerman Verdict

“The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”  British Jurist and All Around Swell Thinker John Austin, 1790-1859

I had originally wanted to post this in the immediate aftermath of George Zimmerman's acquittal on homicide charges in Florida, but decided to wait a bit to let my ideas germinate a bit more and for cooler heads to prevail.

See, here was my problem: from my reading of this case, the jury in the Zimmerman matter came to the exact right legal conclusion in finding Zimmerman innocent of murder or manslaughter.

This is the problem: No one seemed to be asking the right question. Although this was the correct legal outcome, why was it the correct legal outcome?

Legal Positivism will inform those who rejoice in this travesty that the law did exactly what it was supposed to. Let us hearken back to the words of Lord Austin: "Whether [law] be or be not conformable to an assumed standard, is a different enquiry."

Without getting too wonky here, the point is simply that in the world of legal positivism the legitimacy of a "law," as a thing in and of itself has -- or should have -- no connection to the social, ethical or moral question it seeks to address.

In that paradigm, a law (or body of law) that says if you start a fight with someone, then start getting your ass kicked, you are then allowed to shoot and kill that person, is a perfectly legitimate law.

The laws as written and applied contained internal logical consistently, were properly posited and promulgated according to custom, usage and standards, were correctly authoritative... and of course, completely insane and untenable in anything resembling a 21st Century civil society.

As you might guess, I find this to be problematic.

When we divorce larger social context from legal writing, this is what happens. More to the point, far better legal minds than I have some fairly choice things to say about legal positvism and its effect on legal institutions.

As a young lad, I spent time under the educational care of the Clan of the Red Beanie (as Charlie Pierce likes to gloss them) and their women's auxilliary unit. And it was there I learned about St. Thomas Aquinas. Well, not really, it was just a passing mention in the eighth grade, but I remembered the name and later picked up the Summa Theologiae: The Treatise on Law, wherein St. Thomas has his own rather complete and deceptively simple-looking definition of "law."

At its essence, Aquinas says that law is a "rule and measure" of human conduct. As I said, deceptively simple; there is a whole context behind that statement that needs examination.

I will not do that here, I will merely paraphrase.

Being that Aquinas is heavily influenced by the classical Aristotelian world view, he is careful to distinguish between an object that has the form of a thing, and that thing's true nature. He applies this concept to law.

Basically, a law that fails to adequately do justice (given his idea that humanity is pre-disposed towards "good.") is not really a law, but merely a thing that looks like a law.

In his long-winded, but good introductory essay to The Treatise, R. J. Henle, S.J.; University of Notre Dame Press (go Irish!) points out the following:

Let us apply this distinction to one of the celebrated arguments in jursiprudence. St. Augustine wrote, "an unjust law seems to be no law at all." St. Thomas repeats this doctrine as do many other Natural Law thinkers. But the retort comes, "this statement is a plain self-contradiction. In the subject 'laws' are spoken of; in the predicate they are denied the name 'law'."

What is the situation? Here is a statute, passed by a properly consituted legislative body, signed by a properly elected or appointed chief executive and promulgated in accordance with some Consitution, Grundnorm or Basic Law. In all these respects it is like any other law.

On examination, however, it is found to be unjust, and therefore, to fail to in a point, according to Natural Law jurists, essential to a law, hence it is not a law.

[...]

From St. Thomas's standpoint, it is absurd to try to distinguish what law is from what law ought to be. Of course, civil law can be contrary to what law ought to be. Almost everyone agrees that law is a rule and measure (a standard) of human acts, if law does not have a standard distinguishing what is from what ought to be, if law contains no standard, it cannot be a measure and hence would lack an essential function of law or of Practical Reason."

Like I said, he takes a bit to get to the point, but this is the point. A law, like the one in Florida that allowed this moral, ethical and social tragedy to be endorsed by the state, is not legitimate law in the Thomistic sense, although it completely passes muster in the paradigm of Legal Positivism.

A lot of this comes down to essential belief. I hold the Thomistic view that Humanity is essentially ordered to that, which we call "good." There are reasons to believe this which have little to do with religion in general, much less Christian epistemlogy. The "Nash Equilibrium" is a good example of a mathematical concept of the idea that it is more beneficial for a society to work in concert for a general welfare or a generally agreed upon "good."

American jurisprudence needs to start to address this problem, because if we don't there are forces out there -- the Koch Boys, Sheldon Addleson, Mellon-Scaife, among others -- that take a radically different view of our Enlightenment Era founding documents and ideas and would re-write much of American law in a way that would fundamentally change the relationship between citizens and the state and with each other, with raw power being the only determinant.

Unless we get a handle on this, and I mean, like 10 minutes ago, we might as well just get a sharpie and scrawl the words: "That which pleases the prince, shall have the force of law" over the U. S. Constitution.

mojo sends

 

Write a Code, Go to Jail!

Well, this was predictable...

It really was only a matter of time in the current environment. It looks like the Obama Administration is going to take even further affirmative steps to make sure no Americans' personal email is secure from wanton government snooping.

This from the Gray Lady:

The shutdown of two small e-mail providers on Thursday illustrates why it is so hard for Internet companies to challenge secret government surveillance: to protect their customers’ data from federal authorities, the two companies essentially committed suicide.

Lavabit, a Texas-based service that was reportedly used by Edward J. Snowden, the leaker who had worked as a National Security Agency contractor, announced the suspension of its service Thursday afternoon. In a blog post, the company’s owner, Ladar Levison, suggested — though did not say explicitly — that he had received a secret search order, and was choosing to shut the service to avoid being “complicit in crimes against the American people.” [emphasis ed.]

Within hours, a fast-growing Maryland-based start-up called Silent Circle also closed its e-mail service and destroyed its e-mail servers. The company said it saw the writing on the wall — while also making it plain that it had not yet received any court orders soliciting user data.

The other day, the editors and I were placing some good natured wagers on the Shape-Of-Things-To-Come and in the process I suggested to S9 that it would only be a matter of time before we saw a coder actually be prosecuted for just writing a piece of code that might befuddle official state decryption.

While we are not quite there yet, this development doesn't auger well for those who trade in weapons-grade cleverness.

And if you think that these are just a couple of e-drama queens worrying about nothing, you should probably know that the leadership of both Lavabit and Silent Circle are (or were) pioneers of internet privacy encryption. In fact, one of Silent Circle's plank-owners is Phil Zimmerman, the man generally credited with creating the internet encryption standard PGP (or "Pretty Good Privacy").

Zimmerman was even the target of a federal criminal investigation in the early 90s, essentially for trafficking in the aforementioned "weapons grade cleverness."

I will leave it to the redoubtable Dr. Strych9 to bring the real heat on this topic, as he is imminently qualified, and quite safe from extrajudicial interference high in geosynchronous orbit above Bagdad by the Bay on the Mojohaus Sattelite of Love...

Suffice it to say that this is a troubling development and that, tragically, neither our lawmakers nor courts have kept up with the executive branch's nigh on insatiable appetite for the private communications of Americans.

More to the point, those institutions have not kept pace with the development of technology in the application of those laws we already have that should be sufficient to prevent unwarranted government intrusion into our personal lives and relationships.

The Fourth and Fifth Amendments to the U.S. Constitution (remember the Consititution? This is a song about the Constiution...) contain some pretty tight legal writing where our civil liberties are concerned, and equally impressive is the fact that these words continue to be as relevant today as they were 230-some years ago.

I won't rehash their exact wording here; you can read them at the link if you need a quick refresher. Suffice it to say they are pretty succinct in describing the things our government is not allowed to do, among those being jacking our gear, rifling our comms and forcing us to bilge ourselves out to the authorities.

Really, it's not that tough a concept... Unfortunately, the advent of new communications technolgies have created questions that our leadership (for lack of a better word) has not bothered to try to answer. Well, nature does abhor a vacuum, and as such, there are forces that rushed in to fill the void.

But, lest I start to get too far afield here, I will let Ladar Levison, founder of Lavabit have the last word, from his release last week:

“I wish that I could legally share with you the events that led to my decision. I cannot,” he wrote. “This experience has taught me one very important lesson: without Congressional action or a strong judicial precedent, I would strongly recommend against anyone trusting their private data to a company with physical ties to the United States,”

mojo sends