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17 July 2013


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Incentivize local law enforcement, isn't that how we one the war on drugs?


Yes, soon your personal identifying info will be raining down from 'the cloud'. I wonder how long it will take until congress passes along corporate sovereign immunity to keep them from getting sued into bankruptcy over said toxic rain.

The Pelican

Socialism for the Corporations, "free-market" asset-stripping for the rest of us.

Medicine Man

Come on now, Fred, the War on Drugs has worked out wonderfully. Nary an abuse of person, property, or personal liberty to be found.


"The ultimate corruption of the legal profession is now fully represented by a President that once purportedly taught Constitutional law but failed to read closely and understand that Constitution."

Well, you have to take into account that the classes were at Neo-U.

Mark Logan

Charles, thereby hangs a heck of a topic, how much privacy can anyone expect on the internet?

The more I look into it, the more I tend towards the belief it can never be private. What makes it so useful is its essential nature of being a giant bulletin board, one cross referenced, indexed, and data-based to an astonishing degree. I can't think of a way to bar the government, with any degree of security, from collecting the same data that Coca-Cola can about us. We (personally) never miss a chance to remind our teenagers that everything on-line needs to be considered an open book, and point out examples of people who make the mistake of thinking otherwise constantly.

It appears we set up a system of laws within the Patriot Act that regulated this to a degree, but it also appears the government was abiding by that law.

To what extent do we wish to de-fang our sheepdogs? Not all of them are out to "get us" and there be some wolves here and there.

Here's one interesting story which is being voluntarily suppressed by the press in order not to encourage copy-cats and let the sheepdogs work unmolested by sensationalism.



(I'm kinda taking a Devils Advocate position here)

r whitman

The NSA is in possession of a tremendous amount of data. The best way of searching, analyzing and manipulating this info would be with a quantum computer (see Wikipedia article on quantum computers). Has the NSA developed a working quantum computer?? Did Snowden make off with the roadmap and blueprints that got the NSA there?? I would like to see some speculation on this from both the ex-intelligence people as well as the IT types on this blog.

Peter C

Fred, the war on drugs was won. The Drugs and all the governmental apparatus won. Could not resist responding to your humor! Isn't interesting that the U.S. possesses the most powerful cyber gathering operation coupled with the most powerful remote sensing capabilities, drones, satellites, vehicle ID optical scanners at borders and inland from borders, coupled with local and federal humit.

How can such a multinational supply chain exist that can move the tons of product needed daily across the borders with out detection? Your guess is as good as mine.

The Twisted Genius

r whitman,

The IC's answer to getting meaningful intel out of the mountain of data it's collecting lies in software rather than hardware. Quantum computing will be better suited for encryption and decryption as they come online. Perhaps as quantum algorithms and programming advances, they will be able to reason and think through those mountains of data at breathtaking speeds. I don't think they're there yet.

The software the IC needs now would be able to formulate the right questions, test multiple hypotheses, work through partial and deceptive data, learn on its own and be capable of making a leap of faith. That last bit was said to me by a Soviet trained, Polish cyberneticist and AI researcher in the early 90s. IBM's Watson is moving in this direction, but it's not there yet. The software algorithms will probably make use of geometric algebra. There are damned few people in the world who can create working algorithms with geometric algebra. I know one of them. He's also a freaking genius hacker and quirky beyond belief. Snowden did not run in these circles. I'd bet money that Gus Hunt at the CIA does.


Which NSA contractors, unlike Snowden, are simply doing like the Johnny Cash song and taking bank account #s, passwords, SSN, etc, home a 'piece at a time' and selling them off. Or looting them (bank accounts)? Surely there are some folks with old fashioned greed in the ranks of the contractors.

Charles I

Quantum computing is just getting up and running and one of its fruits is the increasing ability to fathom the potential of biological computing just at a time having noticed fractals and the discovery that we can confidently manipulate bio platforms at the molecular, even atomic level.

We will learn to insert data and biology will do the rest in a fantastic synergy of evolution, math, physics, mass bio-processor broad scale brute force computing, fractal algorithms, and the will to power.

A petri dish of smart slime will take a single uniquely encoded data point and render infinite hop plots of a single entity's every interaction back through several generations over a global scale. It may become much much more possible to confidently predict the future, though surely there'll be some sorta heisenbergian blowback there too that the goo will neglect to tell us.

Anyway, a gooey server full of every single thing, possible, impossible, mutants excepted but expected, is a current ambition. And that's just of the scientists who only want to do it cause its neato. But for the whackos who need to know everything just in case there's a nickel or a secret in it, bio computing's gonna be the leg up on analysis quantum computing metal processors are going to provide - and then never match again.

Gonna take a couple few generations but I'd bet on the goo over Ray Kurzweil soon as I can find a public bit to buy. It'll be like owning Google early!

William R. Cumming

Fred and r Whitman! What do you think of the notion that Bill Clinton's signature in 1994 of the COMMUNICATIONS SECURITY ACT OF 1994 opened the barn door wide on all government surveillance?

r whitman

I think govt surveillance is a continuing thing that would have happened with or without a politicians signature. I can remember FBI domestic inquiries when I was an undergraduate in the early 1950's. Again in the late 1960's and early 1970's the FBI was all over the place with surveillance. Even local police forces had files on "subversives". None of these efforts were ever sanctioned by law.

Charles I

I agree in general and have pretty well given up tilting at windmills. I don't want the power grid crashed, but then neither does the government that wants to know everything about me.

The very essential qualities you note indeed both compel and insulate the astoundingly complex network from some kind of accountable overt authority. Some of the most egregious broad based domestic government potential can surely at least be better legally monitored and constrained by budget and accountability measures to offer a measure of accommodation and accountability to the population.

Most people don't even think about it, or even care so long as they can log on, are told they are loss protected, and are not an identifiable target. Still, inevitability should not default to going quietly into the good night. IMHO the Patriot Act and the GWOT have proven themselves to be one gigantic unconstitutional scam that has critically wounded your republic, all of us, as has the war on drugs. That's an intellectual arena I'm not ready to abandon yet, just out of habit. The prima facie legality of these laws is not sufficient to pass unchallenged. Having been a criminal and a lawyer in that order, I have some reserve fear of unchecked surreptitiously informed power the hoi polloi seem inured to. Just how many coincidental reasonable and probably grounded "traffic stops" leading to 100 pound drug seizures is reasonable? As someone noted above, a three hop analysis of your 40 or so contacts affects millions, whereas a serendipitous trunk full of dope is a nothing.

In the city I'm on the web 24/7 saying and doing the most I can to get on many lists I'm sure. On the other hand as a tin foil hatter, I have a laptop plugged into a cable that has only a locked homepage browser that is used solely for completely encrypted banking and trading.

Not rational in all my noisy circumstances, but it makes me feel better, as does not giving up the fight just yet. Even if futile protest is unseemly and imprudent.

We all go along we are not human, we are sheep.

David Habakkuk


“The software the IC needs now would be able to formulate the right questions, test multiple hypotheses, work through partial and deceptive data, learn on its own and be capable of making a leap of faith. That last bit was said to me by a Soviet trained, Polish cyberneticist and AI researcher in the early 90s. IBM's Watson is moving in this direction, but it's not there yet. The software algorithms will probably make use of geometric algebra. There are damned few people in the world who can create working algorithms with geometric algebra. I know one of them. He's also a freaking genius hacker and quirky beyond belief. Snowden did not run in these circles. I'd bet money that Gus Hunt at the CIA does.”

I trust that your ‘Soviet trained, Polish cyberneticist and AI researcher’ was taking the mickey.

All this takes me back to the disastrous study of Pearl Harbor by Roberta Wohlstetter – who together with her husband Albert may have done more damage to American national security than any other couple in your nation’s history.

Her book on Pearl Harbor is full of guff about the difficulty of distinguishing ‘signal’ from ‘noise’.

Intelligence is, very much of the time, a matter of formulating the right questions, in the right order – in a way no computer in existence or in prospect can do. If the relevant questions are intelligently formulated, the ‘data set’ which needs to be considered may be quite small.

So, in relation to Pearl Harbor, a critical question was: do the Japanese believe that they can attack the Dutch and British possessions, without making war with the United States inevitable?

In turn, this begs the question as to whether an attack on the Dutch and British possessions would, as a matter of objective fact, make war with the United States inevitable. Only when one has attempted an answer to that question can one assess the credibility of alternative hypotheses. Among these, two obvious alternatives are that the Japanese rationally consider they can get away with expropriating the Dutch and British possessions without risk of war with the United States, and that they – irrationally – are capable of involving themselves in an all-out war with the United States without realising what they are doing. Different answers have radically different implications for how the United States should act.

Irrespective of how one answers that question, it is likely to be necessary to ask whether the Japanese might consider that they have a viable strategy to secure victory, or at least avoid defeat, in the event of war with the United States. This is in part a question about their psychology, and in part a question about military technicalities which is extremely likely not to have a stable answer over time. So, for instance, questions as to whether torpedoes can effectively be used in the shallow waters of Pearl may generate radically different answers about the likelihood of the Japanese risking war, depending on the precise state of the technologies involved. A small change in the evaluation of a technical issue is capable of drastically changing the evaluation of the whole strategic situation.

Depending on one’s answer to the questions I have outlined, one might conclude that the immense shadow of American potential power will act as an effective ‘deterrent’ to the Japanese. However, one might be driven to ask whether the possibility of dramatic initial successes might convince them that they have a possible strategy to force the United States into accepting a massive increase in their country’s power. Equally, one might ask whether a whole range of considerations making the abandonment of the Japanese imperial project difficult might cause the country’s leadership to engage in what any objective evaluation would suggest would be a suicidal course.

Mindless accumulation of data is irrelevant to confronting these questions. What is important is to have people with the relevant intellectual capabilities and experience confronting them. In a wide range of situations, then as now, what is required is a combination of an – intelligent – appreciation of military issues, ‘area studies’ expertise, and a lot of time, simple ‘horse sense’.

One does not need either 'area studies' or military expertise to have some sense both of the complexities of concepts like ‘national honour’, and also of the possibility that people who have boxed themselves into a dead end may take refuse in fantasy.

Such considerations were completely beyond Roberta Wohlstetter, as they are beyond so many policymakers in today’s Washington, New York, and London.


I second rWhitman's comments. Local law enforcement is busy with data collection, lots of it outsourced. Jus think speed and traffic cameras. All the photos of license plates are collected by third parties. There's nothing showing they aren't recording all the plates going through an intersection and only reporting the infractions. Where was your car, how many people were in it and when?


That says something about where people's attention is, not whether they are sovereign. What spooks me is that such a database of information is precisely what you would need to suppress any future situations where the de jure sovereign people actually try to do something de facto.


One of the weird things that have always struck me as weird in the saga of administrative law and US security is for one the secrecy, and then the absence of legal recourse.

That struck me first when I read the absurd process involved with challenging having gotten on a no fly list.

At first, when travellers asked why they were not allowed to fly, they were only told that they were on a No Fly list. Who put them there, however, was secret. However, one could direct a request to be removed, to the authority that put one on the list ...

From a German administrative law point of view that is unacceptable and ridiculous: Having been put on a no fly list is undoubtedly be a "Verwaltungsakt", an administrative act, under German administrative law, and quite naturally can be challenged in court.

Just so you get the idea (and excuse the translation): The legal definition of a "Verwaltungsakt" is that it is (a) a ruling that creates a legal consequence for the addressee, and must be declared directly to the addressee, (b) by any organ of the executive branch exercising state power, that (c) regulates a single case and (d) has external effect [advising third parties, like airlines, not to serve the addressee instead is a circumvention that has equivalent effect]. If (e) a person is directly and personally affected by that administrative act, that person has standing to sue.

Having been put on a no fly list meets all the criteria from (a) to (e).

Yet it was only ruled a year ago that No-Fly list can be challenged in court, and without the likes of the ACLU it probably would have taken five more years. And the 11 years before that, the practice was unchallengeable in court, and lawmakers didn't bother to enact legislation to that effect?! And it needed six years from 2001 for DHS TRIP to come into existence to at least offer at least some form of intra-administrative recourse - while maintaining the secrecy? Geez.

The US approach to recourse in security matters routinely violates the following basic, if simplified, set of thumb rules - be it a No-Fly list, compelling librarians to turn over of library records or phone companies to turn over wire tapping or something of that sort.

So, here are my thumb rules. I propose that, if an act scores two out of five, it is probably illegal if not unconstitutional for violating basic due process considerations.

* An administrative act must not be secret; the affected party must know about it.

* The body issuing an administrative act must not be secret.

* The rules based on which the administrative act is being made must not be secret, so that they can be challenged on their criteria.

* The evidence used to make the decision must not be secret, because to challenge it it must be known.

* The affected party must not be gagged, since that greatly limits the ability to seek counsel and recourse in such matters.

I could go on, but, since I don't want to get angry during breakfast, I won't.

In university, once upon a time, we had a US guest professor boasting to us in lectures that the US had the BEST legal system in the world. In light of stuff like this, his earnest and enthusiastic statement comes across as a deluded joke. The US system is good in some ways, inferior in others, has fallen way behind in some crucial matters and has become profoundly unfair, if not outright Orwellian whenever terrorism charges and national security are involved. Permanent self-congratulation on the greatness of the founders and the like is not going to change that.

William R. Cumming

ConfuseedPonderer! SCOTUS about 1803! Little v. Bareme holding that any citizen the subject of official action was entitiled to know the legal authority under which the federal action was taken and the specific delegation of authority to the person taking that action.

A unanimous opinion of SCOTUS unlike the 5-4 show of egos and hubris by SCOTUS now.

N.B. SCOTUS ignored most of the 19th Century jurisprudence of SCOTUS that held corporations were NOT citizens. They even failed to mention this entire jurisprudence in deciding that corporations were citizens and money and its expenditure was "free speech"!


SCOTUS about 1803? Law has a funny way, when common principles are concerned, to come to a similar conclusion. The position I describe is Germany from 1949 to present, reinforced with experience from East Germany. I am very glad that our law is the way it is, it is 'right' that way.

If you want to judge how good a legal system is, look at procedural law and legal recourse. The less recourse for aggravated parties it offers - be it in administrative or civil law - the less fair and less free a society is. By that standard, America does not look that good.

In America, assessing this is being made more difficult by many functions exercised by the state in Europe being handled by privates.

But even so - the way unjustified foreclosures were being executed on anyway by private parties, with owners being unable to do much about it, sends a chill down my spine. Here, inevitably, a court would have looked at it first.

I see it as an example of how corporations, with their greater leverage, steam roll weaker parties - apparently acceptable for it's "efficiency".

Or that outrage that Halliburton had its employees sign contracts that barred them from going to court and to go to mandatory (and worse, exclusive) arbitration instead - illegal here, because of very very the obvious conflict of interest that emerges when arbiter is being appointed by the corporation - not to mention the telling cut-off of legal recourse itself - again for the sake of "efficiency".

In matters of recourse you don't want "efficient"; you want transparent, speedy and above all, fair. Considering the scarcity of angels, fairness is only achieved through process in the rational discourse that a trial represents.

In light of such follies, I see the export of US law practices with some concern.

A while ago I installed a US program (it was a computer game) and for once bothered to read the mandatory EULA - a galling experience - as I learned that I had to submit to US law, and not hand over the program to parties under US sanctions and stuff like that. Assuming I'd do so anyway - as it seems under the CFAA - such a violation the terms of a service agreement would constitute a federal felony. What the hell are these people thinking?!


Tyranny comes in form of executive action or decree, i.e. administrative law. To allow recourse against such actions is crucial. It is no accident that Nazi Germany abolished administrative courts in 1939 and replaced them with an internal review process (think TRIPS).

Laws and regulations are "deeds" and they speak volumes.

And to come to that other question - corporate citizenship is the indeed a nadir of US jurisprudence. A corporation is an intellectual construct. To act and express itself it needs human actors that it employs. On itself it is a dead thing, an intellectual construct. It's actors have interests and rights, and they can express them individually - do deny the corporation the same right does not by any means infringe upon that. To amplify that by giving them the added leverage of a corporation is just foolhardy as it has the folks on the board in a sense 'vote twice'. Not quite census suffrage yet, but you're getting there.

And of course, the decision was deliberately made the way it was precisely to enable individuals to yield that bonus leverage through their corporations also. Disgusting.


Re: confusedponderer's rules of thumb and legally extralegal arbitration contracts:

Has anyone ever managed to set up and maintain an empire without breaking those rules? By empire I mean a state or city-state that nearly always achieves its interests in jurisdictions where the affected people have no de facto ability to affect the state.

Re: allowing extralegal arbitration: This is the road to the rationalization of fascism: that to create a powerful society, the state should _help_ the more aggressive and domineering elements of society more effectively lord it over the rest, so long as the domineering elements don't (1) threaten the state (2) make the rest too rebellious or worn-out. (What constitutes "too rebellious" depends on the evolving technical ability to identify and suppress rebelliousness.) This produces a concept of what the state is chartered to do that is antithetical to the 18-19th century liberalism that is our reference point. Glibly, fascism's critique of the liberal approach is simply that it makes a society disproportionately powerful, and weakness is vice. Godwin's law or not, this is the heart of the matter: instances of fascism were crushed, but the ideological roots are too appealing to a certain kind of technocratic mindset to ever really wipe out; and we seem to feel we need to nurture this particular mindset because when it is given free reign in the private sector, it produces wealth, and actually at least appears effective in lots of organizations. At the public school/ pop culture level in the US, we just write off fascism as a cartoon from the past; and if there are circles where there is a less self-righteous exploration of how/why highly developed countries have chosen to do away with 18-19th century liberalism, I have not been in them. Ironically the pop culture lesson of fighting the old instances of fascism seems to be "we are at our best when we quit bitching, line up, and kick some ass" which is completely ironic.

William R. Cumming


In the USA the foundation of the Administrative State was largely during the NEW DEAL years and erected by Judge Keneshaw "Mountain" Landis and others capped by the Administrative Procedures Act of 1947! The largest amendment to that Act was the Freedom of Information Act enacted in 1966.

Whatever you views of the size of the federal government those statutes helped to make the federal government accountable and transparent at least to some degree.

But the erection of the National Security State largely unaccountable and not transparent occurred in period following WWII. Now that NSS heavily influences the entirety of the federal civil establishment that covets the power, influence, waste, fraud, abuse and secrecy of the NSS. Failing to understand military civil relationships in the deepest sense and to any depth the current and former BABY BOOMER Presidents, all lawyers with real military service with its unique culture and accountability have almost destroyed Constitutional norms.

Freedom, liberty, justice, and equality are earned daily not imposed from above or acquired or protected without earnestness and hard work. Question as to whether serious men have been elected to office in the USA in recent years.

William R. Cumming

Corection: IMO none of the Boomer Presidents had any real military service--training perhaps!


I am very much in favour of administrative law. It is IMO the most interesting field of law, insofar as it is the most important one since the utter majority of people-government relations are governed by it. My problem with the size of government is in respect to the US only that the prevalent privatisation in the makes comparisons more complicated.

Administrations - just, merely benign or tyrannical - usually act through administrative law, that is what I meant with "Tyranny comes in form of executive action or decree, i.e. administrative law."

The only alternative would be the 'Realakt', the fait accompli - for instance Obama coming and blowing your house up.

But in contemporary tyranny that is not how it works: If you were classified as bourgeois, your kids couldn't go to university in East Germany. When you were a Jew in Nazi Germany, you couldn't be a doctor or attorney. When you're anything but a Jew in Israel you cannot buy land. Obama's killing of peasants in faraway lands by drone strike based on pattern watching is the result of a presidential finding or guideline under administrative law. If you're, rightly or wrongly, labelled a flight risk you cannot fly in the US. If you're accused of terrorism, rightly or wrongly, you have no rights whatsoever because everything can happen to you from kidnapping, rendition to a torture regime, torture by the US itself in some hell hole under Bush, a drone strike under Obama etc. pp. - all of that, unchallengeable in court.

The combination of an overriding concern for national security (and/or regime preservation) with administrative law is what characterises tyrannical regimes.

What is eating at America's soul is that doomsday lovers like Cheney see everything through a national security lens. I can't retell all instances, but there is essentially nothing at all that is not being considered a part of national security in the US (because that's where the money is?) - starting with water quality, the environment, unions, dissent, economic issues, health issues and probably herpes and hurricanes also.

Just one example - I literally read that obesity is a national security problem because fat people are not recruitment material. Now what a boon that finally the US have gotten drones so physical criteria are not as much a concern as they were before ...

Mark Logan


Thanks for your reply.

Watched some of the hearings and spotted one area that definitely needs fixing: The limits the NSA and the FISA courts advocates are swearing they are currently abiding by are not spelled out in the law, they are simply the current interpretations of the court.

It was comforting to see the people who created the laws feign outrage at how they have been "abused". I suspect there will be changes.

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