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Archive for the ‘Law and Disorder’ tag

The Problem With Statutory Laws

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Statutory law, like democracy, is often erroneously held up as a feature of truly great societies. The problem with statutory law is that it’s based on the belief that the decrees of legislators and the rulings of judges are justice. But justice is about righting a wrong as much as possible and statutory law often fails miserably at this. Consider the recent rape case in Oklahoma:

The case involved allegations that a 17-year-old boy assaulted a girl, 16, after volunteering to give her a ride home. The two had been drinking in a Tulsa park with a group of friends when it became clear that the girl was badly intoxicated. Witnesses recalled that she had to be carried into the defendant’s car. Another boy, who briefly rode in the car, recalled her coming in and out of consciousness.

The boy later brought the girl to her grandmother’s house. Still unconscious, the girl was taken to a hospital, where a test put her blood alcohol content above .34. She awoke as staff were conducting a sexual assault examination.

Tests would later confirm that the young man’s DNA was found on the back of her leg and around her mouth. The boy claimed to investigators that the girl had consented to performing oral sex. The girl said she didn’t have any memories after leaving the park. Tulsa County prosecutors charged the young man with forcible oral sodomy.

[…]

But the trial judge dismissed the case. And the appeals court ruling, on 24 March, affirmed that prosecutors could not apply the law to a victim who was incapacitated by alcohol.

“Forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation,” the decision read. Its reasoning, the court said, was that the statute listed several circumstances that constitute force, and yet was silent on incapacitation due to the victim drinking alcohol. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”

According to the judge’s interpretation of the law a woman who is so intoxicated that she has been render unconscious cannot be forcibly sodomized. And Oklahoma’s law very well might be written in that way, which is the problem.

This case should be focusing on the wrong that was performed and the best way to correct that wrong as far as possible. In any sane justice system that would be the focus. The question of whether a person can consent if they’re not in a sound state of mind, for example, would probably be explored if the focus was on the wrong. Most people would likely agree that a person who is so drunk that they’ve passed out cannot consent to a legal control, let alone sex.

But under statutory law the focus isn’t the wrong but on what was written by legislators and ruled by other judges.

Written by Christopher Burg

April 30th, 2016 at 10:30 am

It’s Good To Be The King’s Men

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A court ordered the Federal Bureau of Investigations (FBI) to reveal the exploit it used to reveal the identities of systems that accessed a Tor hidden service that was serving child pornography. The FBI has responded by saying, “Nah, brah!”

In yet another case, the one involving Jay Michaud — his lawyers have now told the court that the DOJ has made it clear that despite the court ruling earlier this year that the FBI must reveal the details of the NIT/hacking tool, it will not do so (first revealed by Brad Heath).

This refusal is nothing new. The FBI has refused to turn over information about Stingray interceptors as well:

The filing goes on to point out how the FBI has similarly been refusing to reveal details of its Stingray mobile phone surveillance tools (something we’ve discussed here quite a bit), leading to convictions being overturned. As Michaud’s lawyers point out, the situation here is basically the same. If the FBI refuses to obey a court order, then the case should be dropped.

While the article does note that the Stringray case was dropped I think it’s important to note the stark difference between the way the king’s men are treated compared to regular individuals. If a court orders somebody like you or me to do something and we refuse we’re held in a cage until we decide to comply. When the FBI refused to obey a court order they go unpunished. For the sake of consistency I believe the judge should order the agents involved in the case and the heads of the FBI to be locked in a cage until they comply with the court order.

Written by Christopher Burg

April 27th, 2016 at 10:30 am

FBI Found Nothing Significant On Farook’s iPhone

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After all that fuss over Farook’s iPhone the Federal Bureau of Investigations (FBI) finally managed to unlock it without conscripting Apple. So did the agency find information that will allow them to arrest the next terrorists before they can attack? Did the phone contain the secret to destroying the Islamic State? No and no. It turns out, as most people expected, there wasn’t anything significant on the phone:

A law enforcement source tells CBS News that so far nothing of real significance has been found on the San Bernardino terrorist’s iPhone, which was unlocked by the FBI last month without the help of Apple.

It was stressed that the FBI continues to analyze the information on the cellphone seized in the investigation, senior investigative producer Pat Milton reports.

All that hullabaloo over nothing. This is a reoccurring trend with the State. It makes a big stink about something to justify a demand for additional powers. Eventually it’s revealed that reason it needed the additional power was nothing more than fear mongering. Why anybody takes the State seriously is beyond me.

Written by Christopher Burg

April 15th, 2016 at 10:30 am

Sometimes A Judge Displays Some Common Sense

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Although the system of “checks and balances” that make up this nation’s various governmental bodies more commonly looks like a circlejerk, sometimes a judge displays some good, excuse the pun, judgement:

A west-central Minnesota judge has tossed out the Minnesota Department of Natural Resources’ highest-profile deer-poaching bust in recent memory, saying a GPS device that conservation officers attached to the suspect’s pickup was illegal.

[…]

Van Hon said in his ruling that had the DNR asked for a search warrant to place the tracking device on Liebl’s truck, the request probably would have been granted.

“Although the [tracking order] application provided sufficient basis for finding probable cause to issue a warrant, no finding of probable cause was requested or made,” Van Hon wrote in his decision. He added:

“The court cannot retroactively transform what is not a warrant into a warrant. The tracking order is not the equivalent of a warrant. … In the present case there was ample information to support a finding of probable cause for a warrant to issue for the GPS device.”

This cases falls under that legal category loathed by so many prosecutors: a technicality. In this case the Department of Natural Resources (DNR), according to the judge, likely had enough evidence get get a warrant. But the agency didn’t get a warrant so the judge threw the case out instead of bending the rules to favor his employer, the State.

So much of what people, especially law enforcers and prosecutors, see as bureaucratic red tape is often the only thing standing between a prosecutor desperate to get a guilty plea and an innocent person. Sometimes that red tape lets a guilty person walk free but, as William Blackstone once said, “It is better that ten guilty persons escape than that one innocent suffer.”

It’ll be interesting to see if the DNS chooses to appeal this case and, if so, whether the next judge will “transform what is not a warrant into a warrant.”

Written by Christopher Burg

April 14th, 2016 at 10:00 am

The FBI Heroically Saves Us Yet Again From A Criminal It Created

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Just one week after heroically saving us from a terrorist it created, the Federal Bureau of Investigations (FBI) has saved us from yet another criminal it created:

US authorities depict Franey as an unstable anti-government militant who deserved a closer look to see how far he might go. One of his neighbors told FBI agents that Franey said he hated the US military for not allowing him “to leave the Army” after he enlisted, and that he railed at the system for “taking away his kids.” As US Attorney Hayes put it, the Justice Department was obligated to “pursue all available leads to ensure the public was protected from any possible harm.”

But while it seems Franey talked often and enthusiastically about plotting a terrorist attack, there’s little indication he ever had any intention of following through with his threats until the FBI’s undercover agent came along. After befriending Franey, the agent took him on an eight-month ride — sometimes literally, including a road trip along the West Coast — while recording their conversations, doling out cash, furnishing him with guns, and then busting him for illegal possession of the weapons.

I once heard that the FBI used to arrest criminals it didn’t create. Does it still do that once in a while? Is that still a thing?

What happened here is the same thing that always happens. The FBI identified somebody, likely of lukewarm intelligence, who it thought was capable of being radicalized into a threat. It then assigned an agent to befriend the individual and slowly radicalize him. After radicalizing him the agent then provided him a means to perpetuate an attack. The operation then closed with the agent arresting the guy for basically being a radicalized individual in possession of a means to commit an attack.

In this case the FBI’s prey was arrested for illegally possessing weapons. Weapons which were given to him by the FBI.

These operations rely on taking a hypothetical scenario and making it a reality. The individuals they target are those the agency deems capable of being radicalized. If left to their own devices the individuals would almost certainly remain harmless. Most of these individuals are socially isolated, aren’t the brightest bulbs in the box, and are seldom go-getters. Since they’re socially isolated they’re usually desperate for friendship, which makes them vulnerable to FBI agents. Their lukewarm intelligence also makes them more susceptible to being influenced. When you combine social isolation with lukewarm intelligence you have a recipe for an individual who can be easily manipulated to do bad things. But even if they’re manipulated into doing something bad they seldom have the motivation or means. So the FBI prods these individuals into performing an attack and provides them a means with which to pull it off. Finally, with all the pieces in place the FBI arrests its creation.

What the FBI is doing is preying on vulnerable individuals, convincing them to do something bad, and then providing the means to do that bad thing. If the FBI didn’t involve itself these people would normally just fade into the annals of history. The FBI isn’t protecting us from anything with these operations. It’s creating a bad situation and then claiming to save everybody from it.

Do As We Say, Not As We Do

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A lot of people are talking about the Panama Papers. This treasure trove of shell corporations created by utilizing the services of Mossack Fonseca measures in at over 2.5 terabytes in size and it seems to contain dirt on almost every politician. The prime minister of Iceland just resigned due to public outrage stirred by his name appearing in the papers and others are likely to follow.

But the real scandal isn’t that these politicians are utilizing tax havens to protect their wealth. The real scandal is that these politicians continue to hunt those who utilize tax havens while making use of such wealth preserving institutions themselves.

There is nothing immoral about trying to conceal your wealth from thieves. In fact doing so is meritorious. In the case of tax thieves concealing wealth keeps resources out of the hands of the most violent gangs in the world. The less resources the State has the less effective it is as subjugating its victims. We shouldn’t decry anybody for protecting their wealth from the State.

What we should decry are thieves and these politicians are not only thieves but their dishonest thieves. In public these politicians espouse the merits of taxes and viciously criticize tax evaders. In private they are whisking their wealth away to the exact same places using the exact same tactics as private tax evaders. I believe the only fair thing to do in this case is treat these politicians the exact same way they treat private tax evaders. Make examples of them in the media. Hold a show trial. Then lock them in a cage for the rest of their lives. And do this not because they’re tax evaders but because they’ve gleefully inflicted such harm on tax evaders themselves.

Written by Christopher Burg

April 6th, 2016 at 10:30 am

Another Hero Becomes A Political Prisoner Of Uncle Sam

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Anybody who has been paying attention to the depravities of the State won’t be surprised by this post. It is a post about another hero who has been turned into a political prisoner by the State. This hero worked to reduce the violence in the drug market by keeping both buyers and sellers anonymous. He did this in spite of the fact that the last person who followed this path ended up imprisoned for life. Unfortunately the fate of his predecessor likely convinced this hero to plead guilty and suffer a reduced sentence rather than be railroaded by the State’s courts:

Last week, a federal judge in Washington formally accepted the guilty plea of Brian Farrell, the 28-year-old who had been accused in 2015 of being the right-hand man to the head of Silk Road 2.0, the copycat website inspired by the infamous Tor-enabled drug website.

In a 2015 press release, the Department of Justice said that SR2 had generated approximately $8 million per month since it began in November 2013.

While the State was busy sending Special Weapons And Tactics (SWAT) teams to people’s houses at oh dark thirty to kick in their doors, shoot their dogs, and kidnap them because they were in possession of a plant, Brian Farrell was helping run a service that kept those psychotic law enforcers away from both buyers and sellers. After all, neither drug buyers or sellers actually commit actual crimes. There is no victim in a mutually agreed upon transaction.

Due to the illegal nature of the drug trade violence often does creep into the mix though. Most of this violence occurs between competing dealers but sometimes it occurs when disagreements arise between buyers and sellers. Since the State has declared the drug trade illegal, claims a monopoly on dispute resolution services, and ruthlessly pursues anybody who creates a dispute resolution service for drug market actors there are few places for a wronged seller or buyer to go. Silk Road and Silk Road 2 acted as both a marketplace and a dispute resolution service. Through escrow, mediation, and user reviews both Silk Roads allowed wronged parties to have their disputes resolved peacefully. In fact there was no way for wronged parties to resort to violence since all parties were anonymous.

Online drug marketplaces are considered illegal by the State. But the vast majority of crimes perpetrated in relation to these marketplaces are those committed by the State as it uses its capacity for violence to terrorize and punish anybody involved in the drug trade.

Brian Farrell, like Ross Ulbricht before him, should be remembered as a hero who tried to stem the tide of government violence.

FBI Heroically Saves Us From Yet Another Person It Radicalized

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Without the Federal Bureau of Investigations (FBI) who would protect us from the people radicalized by the FBI? Without the heroics of the agency a lot of people might be dead today — killed by a terrorist radicalized by the FBI:

KHALIL ABU RAYYAN was a lonely young man in Detroit, eager to find a wife. Jannah Bride claimed she was a 19-year-old Sunni Muslim whose husband was killed in an airstrike in Syria. The two struck up a romantic connection through online communications.

Now, Rayyan, a 21-year-old Michigan man, is accused by federal prosecutors of supporting the Islamic State.

Documents released Tuesday show, however, that Rayyan was motivated not by religious radicalism but by the desire to impress Bride, who said she wanted to be a martyr.

Jannah Bride, not a real name, was in fact an FBI informant hired to communicate with Rayyan, who first came to the FBI’s attention when he retweeted a video from the Islamic State of people being thrown from buildings. He wrote later on Twitter: “Thanks, brother, that made my day.”

According to the FBI, the agency discovered a radicalized supporter of the Islamic State that was going to perpetrate a terrorist attack. But the attack never happened because the FBI was able to discover the individual ahead of time and intervene.

Put into normal people lingo, the FBI found somebody with neither the motivation or means to perform a terrorist attack. The agency then provided the motivation and eventually the means. If the FBI hadn’t inserted itself into this individual’s life they still wouldn’t have perpetrated a terrorist attack.

I like to say, if it weren’t for the people radicalized by FBI agents there wouldn’t be any terrorists for the FBI to capture. When I first started saying that it was done with a modicum of sarcasm because I assumed the agency did manage to fight some actual crime once in a while. But so many of these FBI created cases exist that they literally fill a book. It’s getting to the point where seems the agency’s only job is dealing with the “terrorists” it creates.

FIREClean Sues Andrew Tuohy And Everett Baker

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Gun owners had a spot of fun at FIREClean’s expense. FIREClean, a product sold for cleaning and lubricating firearms, turned out to appear very similar to Crisco when analyzed with infrared spectroscopy. Many of us laughed and a lot of FIREClean customers weren’t amused by the thought that they were charged a premium price for what appeared to be essentially Crisco.

Now that FIREClean’s profits have fallen they’re looking for a scapegoat. That scapegoat took the form of the two individuals who kicked off this entire fiasco by having the audacity to analyze FIREClean’s product:

FIREClean did respond, insisting that “allegations do not focus on actual performance or relevant tests, and draw a misleading picture”. The response did not deny that their product was similar to the oils tested alongside it in the spectroscopy.

Now it seems that on March 17th, FireClean LLC has filed a lawsuit against Mr. Tuohy and Everett Baker, a man who performed his own tests to verify Tuohy’s findings. In their complaint, FireClean LLC claims that “Tuohy initiated a public smear campaign against FireClean” and holds that Mr. Baker “contacted Tuohy for the express purpose of conspiring with him to further defame and damage FireClean”. FireClean LLC also states that since the publishing of the test, their revenues have fallen by over $25,000 per month.

Before this lawsuit I simply found FIREClean’s situation amusing. But now I think the creators of FIREClean are assholes.

Performing independent analysis and publicly releasing the findings isn’t a smear campaign. Neither person, as far as I can find, every said FIREClean is Crisco. In fact Andrew went to some lengths to clearly state that he didn’t think FIREClean was Crisco. What they said was that FIREClean and Crisco appear very similar when analyzed by infrared spectroscopy. That isn’t a false statement because the data showed exactly that.

The lawsuit itself [PDF] even admits that the defendants didn’t claim FIREClean was Crisco:

47. The statement, “FireClean is probably a modem unsaturated vegetable oil virtually the same as many oils used for cooking,” and its implications, are false.

Notice the word “probably” in that sentence? That makes it speculative and a speculation based on evidence isn’t false. Had the statement been, “FireClean is a modem unsaturated vegetable oil virtually the same as many oils used for cooking,” then there would be grounds that the defendants made a false statement.

One point in the lawsuit note that, “infrared spectroscopy is not scientifically suitable for comparing oils from the same class of compounds, such as triacylglycerides or hydrocarbons.” Another point notes that the tests weren’t performed with any controls. Refuting findings because of insufficient or incorrect testing methods is a perfectly valid rebuttal. Such a rebuttal can be posted publicly without a lawsuit. The fact that FIREClean only brought up these points now and not in its initial rebuttal just makes the company look like a gigantic asshole.

The lawsuit also makes a big stink about the personal opinion expressed by Andrew:

50. Defendant Tuohy also quoted the anonymous professor as saying: “I don’t see any sign ofother additives such as antioxidants or corrosion inhibitors. Since the unsaturation in these oils, especially linoleate residues, can lead to their oligomerization with exposure to oxygen and light, use on weapons could lead toformation o fsolid residues (gum) with time. The more UV and oxygen, the more the oil will degrade.” (Ex. C at 3-4, emphasis in original.)

51. Based on these purported facts, Tuohy wrote that “[g]iven that people in the military are often exposed to both UV and oxygen (such as when they go outdoors) and also need corrosion protection for their firearms, I would not recommend FireClean be used by members ofthe military.” {Id. at 4.)

52. In fact, FTIR spectroscopy is not an appropriate tool to test for corrosion resistance.

53. The suggestion that FIREClean is not suitable for military use is false. The assertion that FIREClean® is not suitable for use in settings with UV, light, moisture and oxygen is false.

Again, the defendant didn’t say, “FIREClean can’t protect against corrosion and breakdown when exposed to ultraviolet radiation and oxygen.” All he did was express an opinion that was based on analysis of the product. That’s not a smear campaign.

This lawsuit, as far as I’m concerned, is entirely frivolous in nature. A lawsuit is also an improper response to diminishing profits. If FIREClean wanted to address the potential damage done by the analysis it should have publicly posted a detailed rebuttal explaining why the testing procedures were insufficient or incorrect. Under such a rebuttal the company could then explain why it found the speculative statements and opinions of Andrew and Everett to be in error.

I’ve never purchased FIREClean so I can’t make a big deal about never doing business with that company again. But I will say that I will never do business with FIREClean in the future. I also threw a few bucks towards the defendants’ GoFundMe legal defense campaign. While I can’t withhold money from a company I’ve never done business with I can give money to help people being legally targeted by it.

Written by Christopher Burg

April 1st, 2016 at 10:00 am

A Lack Of Transparency Is Killer

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Yesterday Hennepin County Attorney Mike Freeman announced that officers Ringgenberg and Schwarze would not be charged in the death of Jamar Clark:

No charges will be filed against the two Minneapolis officers involved in the shooting death last fall of Jamar Clark, Hennepin County Attorney Mike Freeman announced Wednesday, citing DNA and other evidence showing Clark had a hand on one officer’s gun during a struggle and was not handcuffed when shot by a second officer.

This decision has gone over about as well as anybody could have expected. Those who wanted the officers charged are angry because they don’t believe justice was served. Those on the side of the officers are happy and believe justice was served. In the end the announcement served primarily to galvanize both sides’ biases.

Which side is right? Therein lies the problem. Because of how the investigation was handled it’s hard to know. It was another case of “We investigated ourselves and determined that we did nothing wrong.” The investigation was headed by the Bureau of Criminal Apprehension (BCA) and the Federal Bureau of Investigations (FBI), both of which are law enforcement organizations. In a time when public trust in law enforcement is at a notable low the fact that both investigating organizations are involved in law enforcement cannot go without mention. But the biggest problem is that the investigation took place behind an iron curtain.

The lack of transparency is ultimately what makes the announced findings questionable. Jury trails are by no means perfect but they do take place in the public realm (members of the public can sit in and view court cases) so all evidence and arguments are not only made available but can be witnessed as they are presented. Since the investigation into Jamar Clark’s death took place entirely behind closed doors there’s no way to verify the process that lead to the findings. Without neutral witnesses to that process there is no way to verify whether the announcement was arrived to through honest analysis of the evidence at hand or through an editing process biased in favor of the officers.

Saying an investigation came to a decision is meaningless if the integrity of the investigative process cannot be verified.

Written by Christopher Burg

March 31st, 2016 at 10:00 am