Friday, August 2, 2013

Bradley Manning not guilty?

I was asked today why is making public, sensitive info considered by so many a good thing?   

It is considered a good thing because in a democracy the public is the source of all authority and therefore the public is the entity in charge.  It is crucial that the entity in charge know what its servants are doing when they are committing abuses and mismanagement or illegal acts.  Release to the public information that shows that the servants of the public have been lying, cheating or just f-ing up badly is a good thing..

Now to get picky, since that's what we lawyers do:  Whistleblowing is the disclosure by a person, usually an employee in a government agency or private enterprise, to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrongdoing.  So if it is whistleblowing to release document A (depicting wrongdoing), that makes him a whistleblower, whether or not the contemporaneous release of document B would have qualified him as such. Whistleblower and traitor are not necessarily mutually exclusive descriptors.

Now as to the acquittal on the aiding the enemy charge:  the key factor is releasing "to the enemy".  Manning released the documents to someone at Wikileaks.  That person is not the enemy.  That person then said to the Pentagon "do you want to claim any of this is too dangerous to release or redact anything before we release it?"  The Pentagon did not respond because they have a policy of not talking to Wikileaks at all.  Wikileaks then made most of the documents public (on their own withholding about 15,000 they thought were too potentially dangerous to US citizens).  Again, "to the public" is not the same as "to the enemy".  Even if the enemy could see it, that does not qualify as indirectly [i]giving it[/i] "to the enemy".  If I tell you a secret, and you tell your aunt Sally, and aunt Sally gabs about it to her hairdresser, and her hairdresser writes it down for later and leaves it on the counter and a member of an enemy organization walks in and sees it, I have not given secrets to the enemy.  Even if I told you with the reasonable expectation that you are a big blabbermouth, it's not giving information to the enemy just because the enemy happens to hear it.  Giving something to someone, either directly or indirectly, requires that you intended for that particular person (or group or subset) to receive it.  There is no evidence that Manning gave material to Wikileaks with the intent that it get into the hands of alQaeda - particularly as he reasonably expected Wikileaks to try and keep the bad stuff from alQaeda, which they apparently did try to do.

p.s. I have not looked up the legal standard but it may not require specific intent, but just the reckless indifference to a known harm - which this still did not qualify as.

Thursday, July 25, 2013

Battling inertia

I haven't even looked at this blog since I moved.
Looking today I see that there were 4 posts I apparently never finished.  I posted them anyway just to have a clean start.  I will make this a better one, for as long as I continue to use the blogger format.

I have been thinking about the way our system works (or does not work) and the way we think it should work.
A recent decision by the Supreme Court makes it easier for states to implement voter discrimination laws.  Voter discrimination is nothing more than those in power altering the system to preserve their power.  Did the Court do wrong?  Probably not.

We tend to think there is something called "the law" that governs everything and if Congress screws up, the President kills US citizens with drones, or the Supreme Court says a corporation is a person, it does not mean they "got it wrong," as though all they did was miss the mark trying to hit some sort of Platonic ideal law.  They just disagree for whatever reason.

Our founders seem to have understood this.  That is why there is the balance of power system of the three co-equal branches of government.  If the Court has done something that the Congress and the President think is wrong, they can come up with a new law, or repeal the law the Court interpreted.  It is, and should be, a competition among the branches, not all three aiming for one ideal.
Party affiliation has been allowed to overlay the branch system so that if you can get enough of your party in multiple branches you can kill that inherent competition of checks and balances.   But I will save the anti-party rant for another time.

Wednesday, April 3, 2013

Protect your .pdf from the Goonies

I have been told that as a lawyer it is very important to use .pdf files.
Never, ever send someone a word file (or other word processor file) because for one they can alter it, and for another, all the edits and changes you made are findable either with built-in tools in Word, or with some simple forensics tools.

So the advice is always to take your carefully crafted word document and save it as a .pdf before sending it to a client or opposing counsel.

What they don't tell you is that .pdf files aren't much better.  Ever wonder why your .pdf is so big?  It's easy enough to search the web and find how to make them smaller.  It's simple really: save them as a new file.  Why?  Because all of the changes you've made to the file are still there, hidden.  Presumably some simple forensics could undo them and reveal the draft in which you said "and here's where I hid One-Eyed Willy's gold."
You see, when you saved, you didn't save over the old draft, you just saved changes to the end of it. The earlier stuff is still there, just hiding, waiting for some group of smart kids to find it.

Wednesday, March 20, 2013

Are you dizzy yet?

The procedural history in this case must have been maddening.
The Complaint was filed in July 2005.
Cross-motions for Summary Judgment were denied in March 2008
One year later the Court sua sponte held a hearing to reconsider.
Six months after that, the Court granted Defendant’s motion for Summary Judgment.
The 4th Circuit reversed on appeal a year after that.
Three months later Defendant asked to amend its Answer to add preclusion defenses.
The motion was denied as untimely, but in November 2011 Defendant made a new motion to amend and a motion for summary judgment based on the amendment, citing a different, more recent favorable decision.
The case went to trial with those motions outstanding.
Trial began in January 2012.
Jury found for the Plaintiff.
Defendant renewed its Motion to Amend and Motion for Summary Judgment (now a Motion for Judgment as a Matter of Law).
The Court granted the motions and vacated the judgment of the jury.
Plaintiff (it won at trial but lost in post-trial motions in case you’re lost) filed an appeal.
On March 14, the 4th Circuit granted the appeal and re-instated the jury verdict.