Friday, June 27, 2008

Major David J. R. Frakt's Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad

From the ACLU: Major David J. R. Frakt's Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad

"On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part “I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.”

“I determine that the Taliban detainees do not qualify as prisoners of war. . .al Qaeda detainees also do not qualify as prisoners of war.”

“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. . . As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager...

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so."

As Michael Froomkin says:

"I’ve said many times before that the JAGs are heroes of the post-9/11 military. Here’s another extraordinary example of this: the closing argument of an Air Force Major, David J. R. Frakt, in Favor of Dismissal of the Case Against Mohammad Jawad (6/19/2008) in a ‘combat status review tribunal’ [Note 6/24/08: commentator mremer says below that this was a merits hearing, not a CSRT, and based on this aclu blog post, I think he’s right] held at Guantánamo. (Transcript via the ACLU. )There ought be be a medal for this sort of princpled powerful advocacy in service to the nation."

Major David J. R. Frakt's full speech should be compulsory reading for anyone with an opinion on the war on terror.

McCain changes of heart

Michael Froomkin won't be voting for John McCain in the November US presidential election partly due to his change of heart on a range of political issues in order to avoid alienating core Republican supporters.

Straw wrong on witness anonymity

Also worth reading in this morning's Times is David Pannick's forensic analysis of the government's position on witness anonymity at criminal trials: Witness intimidation: Judges won't be cowed into denying a fair trial

"The House of Lords decided that common law prohibited the use of such anonymous evidence because it prevented the defendant from being able to challenge in cross-examination whether the witnesses had a motive for lying or exaggerating...Mr Straw said on Wednesday that “there is a difficult balance to strike here, between giving witnesses who fear for their safety the confidence to give evidence in court and ensuring that innocent people are not convicted”.

He is wrong. There is no such balance. The law lords have repeatedly explained that Article 6 of the European Convention on Human Rights confers an absolute right to a fair trial, which cannot be balanced against other considerations, even in relation to measures taken to protect society against terrorism.

The Justice Secretary and Parliament are bound by the UK's international obligations in this respect. Those echo and were strongly influenced by the common law traditions of our legal system"

Destructive school inspections

You can probably tell I read the Times this morning and another story that struck a chord was Melanie web's rant against school inspections, or as she describes them: the malevolent web that traps our teachers.

"Above all, it seemed as if Ofsted and Her Majesty's Inspectorate of Education (in Scotland) had, like malevolent spiders, woven a sticky web of bureaucracy...inspection wasn't an exercise in validation; it was about a profession that had started to eat itself.

I was told the kind of stories that do not normally circulate outside families - the private misery of dedicated people; young teachers with flair denied promotion; unnecessary early retirements; hugely experienced head teachers brought to the edge of breakdown by the “heartless bastards” who came in and decreed that whatever they did wasn't good enough...

Even more chillingly, I was told about the new breed of teacher that has emerged, genetically altered to thrive in such an culture."

Dissection by inspection leads to a culture where there is huge pressure on even the most gifted teachers to pretend things are better than they are. The risk and consequences of a poor Ofsted report are too high, so the cracks are papered over, problems (which can't be admitted too lest the school be labeled a failure) fester, teachers and children lose out.

Our education system is, and has been for too long, more about sustaining the huge bureaucratic educational infrastructure than nurturing the children it is charged with educating.

Henley and the fringe

The Nu Labour candidate has come in a distant fifth in the Henley by-election and even the BNP polled higher.

There really is something wrong in a country where a lunatic fringe group can do better than the organisation we have charged with running the state. But honestly you sometimes wonder if it is the lunatic fringe who are currently holding the high offices of state, as the government makes a renewed commitment to clamp down on criminal 5-year-olds.

Never mind though. We are advised to cheer up because we are apparently winning the war on terrors... er sorry... war on terrorism.

Thursday, June 26, 2008

ICANN, the Net and the media

ICANN's recent machinations are being widely reported in conventional media circles as an indication that the Internet is facing a radical overhaul.

One of the things that irks me about these reports is the throwaway wild speculation reported as facts such as this from the Independent:

"The pornography industry, which accounts for around 12 per cent of all internet content..."

I mean what precise empirical evidence is such a claim based on? Nobody knows what percentage of internet content is porn but a figure like 12 % is a very convenient handle for campaigners wanting to control or regulate the technology in some way. That quote btw goes on to say that the porn industry:

"... is also hoping to be allowed to use the .xxx domain name."

Long time readers will know that this blogger has suffered regular censorship by commerical software filters due to the xxx in the title and url, so I've never been a big fan of the notion of the porn industry having an exclusive Web red light district under the .xxx banner. It'll be just another reason to make wild and unsubstantiated assumptions about what might be likely to be found at b2fxxx.

Genetic tests to id risk of breast cancer

In spite of Myriad Genetic's patents on the BRCA1 and BRCA2 genes having a widely reported chilling effect on research in this area, some scientists have continued to work on the genetic predisposition to develop breast cancer.

Cambridge researchers say there are seven common gene sites that elucidate the risk of developing cancer. From the Independent today:

"The chances of getting breast cancer vary more than sixfold among women because of their genetic inheritance but the breast screening programme fails to target those at highest risk, scientists have found. Researchers at the University of Cambridge say it may soon be possible to offer women a genetic test based on the seven common gene sites that determine cancer risk and to focus prevention efforts accordingly.

Currently doctors only test women with a very strong family history of breast cancer for the high-risk genes such as BRCA1 and BRCA2. These gene faults increase the chances of a woman developing cancer from around 9 per cent to 80 per cent. But they are rare and few women benefit from such testing.

There are other common genetic variations that modestly increase the risk – but when they occur together they have a substantial effect. Around 3,300 women in the UK carry the low risk genes for each of the seven gene sites identified, who have less than half the risk of breast cancer of the general population – a 4.2 per cent lifetime risk compared with a 9.4 per cent risk.

At the other end of the scale, around 400 women have high risk genes for each of the seven sites, giving them a 23 per cent risk of developing breast cancer – two and a half times that of the population as a whole."

From the original study published in the New England Journal of Medicine this week:

"Background New developments in the search for susceptibility alleles in complex disorders provide support for the possibility of a polygenic approach to the prevention and treatment of common diseases.

Methods We examined the implications, both for individualized disease prevention and for public health policy, of findings concerning the risk of breast cancer that are based on common genetic variation.

Results Our analysis suggests that the risk profile generated by the known, common, moderate-risk alleles does not provide sufficient discrimination to warrant individualized prevention. However, useful risk stratification may be possible in the context of programs for disease prevention in the general population.

Conclusions The clinical use of single, common, low-penetrance genes is limited, but a few susceptibility alleles may distinguish women who are at high risk for breast cancer from those who are at low risk, particularly in the context of population screening...

Although the clinical use of single, common low-penetrance genes is limited, a small number of susceptibility alleles could distinguish women at high risk for breast cancer from women at low risk, particularly in the context of population-screening programs. Moreover, stratifying women according to genetic risk may improve the efficiency of screening programs.

There are many questions to be answered and barriers to be overcome, however, before such potential could be realized. The simple models we described make several assumptions, some of which may not be robust. For example, the assumption that the benefit of mammographic screening for an individual woman is merely a function of absolute risk is clearly an oversimplification. The sensitivity of mammography is reduced in women younger than 50 years of age, and the true benefit is more likely to be a complex interaction between age and absolute risk. Furthermore, the complexity of a population-oriented prevention program that is based on individual risk might outweigh its marginal improvement in efficiency. As more risk alleles are identified, however, our ability to predict risk will improve, and the gain in efficiency will increase.

If it were feasible to implement a program for women with a genetic risk of breast cancer, public (and professional) education would be necessary, and even then the concept might not be acceptable. However, new and expensive forms of screening or screening tests with marginal clinical benefits to the individual woman may be possible only in subgroups of the population at high risk. Screening for breast cancer by means of MRI may be more effective than mammography, but it would be prohibitively expensive unless it was targeted to patients at highest risk.

Effective use of genetic profiling depends on the best available set of markers. Most reported genetic associations have been false positive results and would be worthless for risk prediction.31 The evidence providing support for some loci that were recently identified in genomewide studies, such as those used in the above calculations, is strong, but it will still be important to base profiling on accurate estimates of the risks associated with these loci, either singly or in combination.

Our understanding of the genetic susceptibility to breast cancer and other complex diseases is likely to change rapidly over the next decade. Policymakers should start to consider how this knowledge could be used to make a polygenic approach to disease prevention a reality."

It's a challenging but rewarding read and at a little over 3000 words is relatively brief. In addition, you're always likely to get a more accurate picture of what the scientists have discovered through reading the actual paper rather than the mass media's interpretation of the research. (Note that I'm not a geneticist but an 'allele', as I understand it, is one variety of a series of possible alternative forms of a particular gene. So with the gene controlling eye colour, for example, one allele could be the code for blue eyes, another the code for brown eyes.)

Nu labour cheer whilst pm hums

I don't think Simon Carr is too keen on our esteemed Prime Minister.

"Day by day it's harder to pay attention to the PM. He sounds like the air-conditioning. But if you think about something else you can stop hearing the drone after a time...

Gordon's every answer is a triple as he has to do three things. 1) show that whatever it is, it's not his fault, 2) that the Government is doing things, and 3) the Tories are wrong...

There's another factor: if we can't understand him, he thinks, we'll blame ourselves and credit him with superior intelligence. Is that how it works for you? Me neither. He knows he's boring but he equates that with sober government. We equate it with twisted, paranoid drivel offered up as a dialogue of the deaf."

"Dialogue of the deaf" - you've got to like that one.

Wednesday, June 25, 2008

Start-up sues Google over e-mail switching tool

From the Washington Post: Start-up sues Google over e-mail switching tool

Boyle: A Czar for the Digital Peasants

James Boyle is in cracking form in the FT again.

"One sure sign of a lack of political vision is a rise in the number of pieces of acronymic legislation. After September 11, the US Congress passed the euphoniously named “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” the initials of which spell out “USA – Patriot.” The Patriot Act is a pretty bad piece of legislation, but at least its drafters worked hard on the acronyms so that opponents could be labelled “anti-patriot” – a perfect level of analysis for Fox News. Admittedly, in this administration, having public officials torturing acronyms rather than detainees might be counted as a plus, but I still find the whole practice distasteful. I'd suggest that politicians vow to vote against any piece of legislation with its own normatively loaded acronym, no matter how otherwise appealing. It might make them focus a little more on the content.

In any event, Congress has been at it again. The House just passed, and the Senate is considering, the Prioritizing Resources and Organization for Intellectual Property Act of 2008 – or “Pro-IP” Act. (If it passes, a version is sure to be urged on Europe as a matter of “harmonisation.”) Are you pro-intellectual property? Then surely you must be for this piece of legislation! The name says it all.

Actually, there is more than a linguistic reason to dislike this nasty little industry wish-list. Bill Patry, a senior lawyer at Google and a respected copyright scholar said it may be the "most outrageously gluttonous IP bill ever introduced in the US"...

...the central feature remains – the creation of a White House level “intellectual property czar”... The czars were good at a lot of things, including autocracy, the toleration of pogroms and a fondness for having their cossacks sabre the peasants. None of these springs to mind as the ideal quality for a contemporary leader...

The point of having a czar, particularly a White House level czar, is to...“codify.. political interference in the independent exercise of .. prosecutorial judgment”... This Act would make political interference with prosecutorial judgment something that is not aberrant, it is ubiquitous and legally required. We could call it the “Politicize Responsibilities Of Independent Prosecutors” Act, I suppose. That at least would be truth in labelling. Whatever acronym we put on the title page it isn’t “Pro-IP,” merely “anti-balance.” This is one czar the digital peasantry should reject. "

Tuesday, June 24, 2008

Lessig: Change Congress

Larry Lessig delivered another impressive speech a couple of weeks ago on his plan to change Congress. This time at the National Conference for Media Reform.

Lessig followers will be familiar with the message - Congress is bought and paid for by vested interests and needs to be helped towards independence and acting for the public good. It's still well worth the 30 minutes or so to watch it.

Is Google Making Us Stupid?

From Nicholas Carr: Is Google Making Us Stupid?

Good question.

Shirky at the RSA

Clay Shirky gave a terrific talk at the RSA last month.

Always good value Shirky talks about the ideas in his new book Here Comes Everybody: The Power of Organizing Without Organizations, illustrating his points with stories about collective protest with the aid of Web technologies that couldn't have happened without those technologies - students v HSBC, students v dictator in Belarus, business v mafia.

The interesting thing for me was that he also described the moment he stopped being a cyberutoptian. This was when a student who worked for a teen magazine explained they had decided to shut down their online discussion forums because they were being dominated by pro-anorexia girls, evangelising starving themselves. Yet when the forums closed down the girls just moved to another web site. It struck Shirky fairly forcefully that the destructive use of the technologies was not just a side effect but a feature. Just as they can be used to peacefully protest against brutal dictators by eating ice cream in Minsk, they can are are being used by organised groups for much more socially and politically destructive purposes.

Is Google the next Microsoft

Rufus Polllock has been working on an empirical study of search engines and has recently released his first complete version of his paper.


Internet search (or perhaps more accurately ‘web-search’) has grown exponentially over the last decade at an even more rapid rate than the Internet itself. Starting from nothing in the 1990s, today search is a multi-billion dollar business. Search engine providers such as Google and Yahoo! have become household names, and the use of a search engine, like use of the Web, is now a part of everyday life. The rapid growth of online search and its growing centrality to the ecology of the Internet raise a variety of questions for economists to answer. Why is the search engine market so concentrated and will it evolve towards monopoly? What are the implications of this concentration for different `participants’ (consumers, search engines, advertisers)? Does the fact that search engines act as ‘information gatekeepers’, determining, in effect, what can be found on the web, mean that search deserves particularly close attention from policy-makers? This paper supplies empirical and theoretical material with which to examine many of these questions. In particular, we (a) show that the already large levels of concentration are likely to continue (b) identify the consequences, negative and positive, of this outcome (c) discuss the possible regulatory interventions that policy-makers could utilize to address these."

Empirical research in this area is still very thin on the ground so this is recommended.

Open ID security

Kim Cameron does a terrific job of explaining why "Open ID leads to information cards"

(Be patient - it takes about 30 seconds to load on a fast connection)