Maybe Some Better Choices Could Be Made

So a couple of days ago, I noted how Senator Obama conveniently lost his principles and voted for a flawed piece of legislation in the amendments to FISA. So I guess that it was no surprise that Senator Obama would trot out the following in today's speech on foreign policy. According to the sources I have found, he said

For weeks, now, Senator McCain has argued that the gains of the surge mean that I should change my commitment to end the war. But this argument misconstrues what is necessary to succeed in Iraq, and stubbornly ignores the facts of the broader strategic picture that we face.

In the 18 months since the surge began, the strain on our military has increased, our troops and their families have borne an enormous burden, and American taxpayers have spent another $200 billion in Iraq. That's over $10 billion each month. That is a consequence of our current strategy.

In the 18 months since the surge began, the situation in Afghanistan has deteriorated. June was our highest casualty month of the war. The Taliban has been on the offensive, even launching a brazen attack on one of our bases. Al Qaeda has a growing sanctuary in Pakistan. That is a consequence of our current strategy.

In the 18 months since the surge began, as I warned at the outset - Iraq's leaders have not made the political progress that was the purpose of the surge. They have not invested tens of billions of dollars in oil revenues to rebuild their country. They have not resolved their differences or shaped a new political compact.

Now, reserving the Afghanistan issue later, I think its important to take a step back and look and see exactly what U.S. Congress established as the metric for success in Iraq. (It should be noted that some have criticized some of the benchmarks for being too subjective/arbitrary to be used as adequate metrics)The benchmarks (or milestones) are:

• Perform constitutional review.
• Enact de-Bathification reform.
• Form semi-autonomous regions.
• Hold provincial elections.
• Address amnesty.
• Establish support for Baghdad Security Plan.
• Ensure minority rights in Iraqi legislature.
• Keep Iraqi Security Force free from partisan interference.
• Disarm militias.
• Provide military support in Baghdad.
• Empower Iraqi Security Forces. Ensure impartial law enforcement.
• Establish support for Baghdad Security Plan by Maliki government.
• Reduce sectarian violence.
• Establish neighborhood security in Baghdad.
• Increase independent Iraqi Security Forces.
• Implement oil legislation.
• Distribute Iraqi resources equitably.

Whether right or wrong, these were the established benchmarks. From my perspective, some of these benchmarks seem unreasonable. Specifically, those dealing with the oil legislation and distribution of resources seem like internal problems that really will take longer to resolve. Remember, it took us here in the U.S. 4 years, in a time of relative peace, to figure out how to do such things.

The surge was announced in January 2007. The initial 20,000 troops reached Iraq in March 2007, with more arriving and other units rotating home, the forces in Iraq hit 150,000 in April 2007. Six months after the surge, the initial report showed that of the benchmarks, only three, according to the GAO report, had been met (the Baghdad security plan had been supported, minority rights in the legislature had been ensured, and neighborhood security in Baghdad had been established).

Three months later, the surge strategy, in buying time for the civil process to reestablish itself in Iraq, had resulted in 12 of the benchmarks being achieved. By May 2008, 15 of 18 benchmarks had been achieved. According to the AP story, the two most intractable problems in meeting all the benchmarks are laws to eliminate and disarm militias and solution to the question of the distribution of the oil revenue question.

Let's see. January 2007, there is sectarian violence which is basically out of control, a government that is so fractured that it is ineffective, an indigenous military force which is still trying to stand-up to the point where it can operate as an effective, independent entity, in addition to a de-Baathification process that is out of whack and disputes over how best to use the best natural resource available to the Iraqis. In July 2008, violence in Iraq has largely been brought under control. The Iraqi government, while not a model, is operating more effectively. An amnesty program has been put into effect which allows people who did not commit crimes but were tainted by their association with the Baath party to come back into the fold. While there is still a dispute over how to share oil revenues, the parties are talking and investors are being courted. And best of all, U.S. casualties in Iraq have significantly dropped.

To the layman, taking this all in, it would seem that the surge strategy has worked.

Of course, it would seem that the surge has altered the operational and strategic landscape of the Iraq situation. The Iraqi government realizes this. They want to start talking about the withdrawal of U.S. units. However, this proposal includes the possibility of maintaining bases in Iraq (though not like a Guantanamo type arrangement). Senator Obama, however, had this to say,

To achieve that success, I will give our military a new mission on my first day in office: ending this war. Let me be clear: we must be as careful getting out of Iraq as we were careless getting in. We can safely redeploy our combat brigades at a pace that would remove them in 16 months. That would be the summer of 2010 - one year after Iraqi Security Forces will be prepared to stand up; two years from now, and more than seven years after the war began. After this redeployment, we'll keep a residual force to perform specific missions in Iraq: targeting any remnants of al Qaeda; protecting our service members and diplomats; and training and supporting Iraq's Security Forces, so long as the Iraqis make political progress.

Let's see. The situation has changed. Yet, Senator Obama does not want to change his position to address the change in the situation. If you read the speech he gave today, its interesting to see how much he wants to get out of Iraq, how much he wants to remind people of how he never approved of the invasion of Iraq, and how much he wants to focus on Afghanistan.

Whether or not the invasion of Iraq was right or wrong, the fact is that we are there. Leaving without ensuring there will be the conditions necessary for relative peace will mean that all the lives and treasure we have spent will have been wasted. The one thing that seems to be the lesson of the surge policy is that it works for what it can do. It cannot solve all the Iraqi problems. What it is doing is allowing the civil society in Iraq the time it needs to reassert itself. It would be nice to learn from the mistakes we made in Nicaragua, Haiti, the Dominican Republic, and Vietnam.

Now turning from the Iraq portion of his policy to Afghanistan. It is interesting to see how much he wants to end what we are doing in Iraq... only to do exactly the same type of thing in Afghanistan. Then again, maybe it is what we should expect from a man who said his foreign policy would be an immediate withdrawal from Iraq and a deployment of more troops (but not a "surge") to Afghanistan and possibly invading Pakistan (who by the way has a nuclear weapons system).

By the way, has anyone ever told Senator Obama about people who send large occupation forces to Afghanistan? Someone might tell him to get an adviser who has read something about the Russian and British experiences of trying to be too hands on with the Afghani people.

In one of the sections of his speech where he gets into talking about what his plan would mean, Senator Obama states,

I will send at least two additional combat brigades to Afghanistan, and use this commitment to seek greater contributions - with fewer restrictions - from NATO allies. I will focus on training Afghan security forces and supporting an Afghan judiciary, with more resources and incentives for American officers who perform these missions. Just as we succeeded in the Cold War by supporting allies who could sustain their own security, we must realize that the 21st century's frontlines are not only on the field of battle - they are found in the training exercise near Kabul, in the police station in Kandahar, and in the rule of law in Herat.

So, send more troops. Focus on the training. Build up a judiciary. And get NATO allies to do more. Call me crazy, but the way this reads is he wants to send more troops there, not to fight, but to train others to fight. He also thinks that the NATO members will be willing to suddenly reverse their apathy and commit their troops to do more of the fighting and less of the training.

Are more troops needed in Afghanistan? Yes. Do we need more NATO participation in combat operations? It might be nice. On the other hand, I think that Europe cannot be depended upon to do that. They are nice social democracies, but I think its safe to say that social democracies thrive by dampening down the warrior impulse (at least at the governmental level) that is needed to confront an external threat that isn't just a stones throw from the border.

Then Senator Obama turns to the issue of nuclear proliferation and Iran. Again, he stated,

We cannot tolerate nuclear weapons in the hands of nations that support terror. Preventing Iran from developing nuclear weapons is a vital national security interest of the United States. No tool of statecraft should be taken off the table, but Senator McCain would continue a failed policy that has seen Iran strengthen its position, advance its nuclear program, and stockpile 150 kilos of low enriched uranium. I will use all elements of American power to pressure the Iranian regime, starting with aggressive, principled and direct diplomacy - diplomacy backed with strong sanctions and without preconditions.

Nice to see how he opposes Iran getting nuclear weapons. So opposed that "No tool of statecraft" will be left unused. Typically, statecraft means tools not including war. American policy on Iran has been sadly deficient for more than a decade. Rather than trying to engage in some way when we had a chance with previous Iranian administrations, we are left with Mahmoud Ahmadinejad, not exactly someone who can be rationally dealt with.

What can I say. I am disappointed by this Obama speech. From a speech writing perspective, its great. I am sure that if I punched this into a computer program, it might even be found to be written at an eighth grade level. But he missed a chance.

Instead of talking about the fact that he opposed the war from the beginning, he could have laid out some specific points about how his foreign policy would be different from the current administrations. He could have put forward a new idea on how future U.S.-Iraqi relations will work. Instead of the "Shared Security Partnership Program" idea, he might have laid down how the U.S. will operate in the Middle East and Central Asia. Its nice that he wants to promote "cooperative efforts" to defeat terrorism, and directing more foreign aid to Africa, but that something that a high-school policy debater would say (right before they linked the failure of the oppositions plan to nuclear war -- sorry Speech and Debate humor).

What I want from the person who leads my country is at least the idea that the policy is not going to be one of running away. That it is one where we lead, instead of hoping that others will go along with us. No other country has the capabilities, resources, or credibility (even as damaged as it has been by President Bush ineptitude). Even if one were to say that there are others ready to step up to being a super-power, is that what we really want? Do we want China to step up and assume the mantle of super-power? Do we want Russia to try and reassert itself as the other end of a bi-polar system? Call me a chauvinist, but I'm not ready to see their version of being the dominant hegemon.

I sort of expect a bit more from someone who wants to become next the licensee at 1600 Pennsylvania Ave.

Probably The Best Investment

Recently, I had another of my last minute trial specials. When negotiations collapsed on Thursday afternoon, the client was referred to me so that they would have someone to represent them at trial on Monday.

This was not one of those "good" types of cases to get at the last minute. It was a no-fault eviction (owner move-in). The tenant had failed to pay the rent for a while and now did not have the money to pay the back rent. The amount in question, in addition to the possibility of a U.D. judgment, was approximately $ 9000. Good affirmative defenses were... well let's just say that they were not in abundance in this case. Evidence in favor of my client was .... well not so good.

Pretty much I had mud and no straw.

The only thing I had going for me was:




Mrs. AngryBell got me this really great bag. Holds just about everything you can need for a trial. But even more than what it holds on the inside is its look. Since I got this bag at the beginning of last year, this bag has been the most intimidating thing in my arsenal when I get these last minute cases.

Prior to that, I would show up with all my trial materials in my standard computer bag (which to be honest has seen better days) and is none to intimidating. Especially since it is almost always over-stuffed (much to Mrs. AngryBell's complaints about what it could be doing my back).

Once I got the bag, as a Chanukah/Christmas gift, I started using it almost right away. And the mere appearance would cause my opponents to change their tune. In the first case, the opposing counsel looked at me, looked at my bag, and then looked at me again before making an offer and said "What do you have in there?" I responded, "Want to find out?" (For the record, I had 3 motions in limine which were ready to used - hopefully - to gut the majority of his case. That case had some really good defenses.)

After a year and a half later, namely today, I once again had one of those moments where the other side saw my bag, and then suddenly ceased acting like the raging bull which they had been during the previous mandatory settlement conference. When it was all over, opposing counsel looked at the bag again and asked "What do you have in there?"

Now, I doubt that this would work if a lay person (i.e. a non-lawyer) brought one in on the day of trial call. And I think it probably has something to do with the fact that the landlord attorneys that have been on the other end of my bag have realized that their cake-walk trial against an unrepresented tenant has suddenly become an expensive undertaking that is going to mess up the budgets that they had assured their clients to which they would adhere.

In all the cases that I've used this bag in, the clients have managed to avoid the dual whammy of an unlawful detainer judgment and a money judgment against them. Typically the amount that they have ended up spending on getting an attorney (either in time spent working pro bono groups or money in fee's the Law Offices of the AngryBell) have usually been good investments. Now, is this to say that any given attorney (including myself) will always be able to get you a good result at the last minute?

No.

But it does put the party in a better position to negotiate a deal which will be better than the one they negotiate without one. An attorney who sees a client unrepresented on the day of trial knows that he has the advantage and will press that advantage to get his client the maximum they can without going to trial... or just press through and get the maximum they can at trial.

That being said, to date, the bag has saved my clients approximately collectively $15,000.00. One of these days, maybe I will just go in with it empty and see what happens.

Agent of Change? Or More Of The Same?

Since 2001, it is my opinion that the Democratic party has been lead by moral cowards.

After the drubbing received in the loss to President Bush, the Democratic Party did almost nothing to stop the Bush Administration's choices for confirmation in either the Executive Branch (Ashcroft being the most notable) and the Judicial Branch (congratulations to the Senate Democrats for allowing 98% of President Bush's nominations reach the bench). Then there was 9/11.

And what did the Democrats in the Senate and the House of Representatives do? Well, most of them happily signed on to pass the PATRIOT Act. In the process, they helped to shred the constitutional rights of every American.

Let's be clear, those voting in favor of the PATRIOT Act included: Senator John Kerry (D-MA), Senator Hillary Clinton (D-NY), Senator Ted Kennedy (D-MA), Senator Reid (D-NV). In fact, despite the fact that the Democratic Party claims to cherish civil liberties, only one man dared to vote no on the Act: Senator Russ Feingold (D-WI).

In 2007, the Democrats had a chance to do something about the PATRIOT Act. However, once again, they failed to take serious action. Once again, the PATRIOT Act was reauthorized with a vote of 95 to 1 (with 4 non-voting moral cowards). Voting yes for the PATRIOT Act's reauthorization was Senator Barack Obama (D-IL), Senator Hillary Clinton (D-NY), and Massachusetts senators John Kerry and Ted Kennedy. Once again, the only person worthy of calling principled among the Democratic senators was Russ Feingold (D-WI).

But man, let me tell you, they talk a good talk on Constitutional rights, don't they? Nice way to provide principled leadership in the face of opposition. Or is it the motto of the Democratic legislators "When the going gets tough, hide behind a Republican"?

Now today, the Democrats in the government faced a tough decision in the form of the bill which would change FISA. For those who don't know, FISA stands for Foreign Intelligence Surveillance Act. Originally, FISA was passed in 1978 in response to the revelations of the Senate's investigations into the activities of U.S. intelligence services, especially in regards to wire-tapping of suspects in the United States. Starting in 2002, the Bush Administration began authorizing wire-tapping and intercepts of other types of electronic transmissions (email, fax, etc.) without complying with FISA.

Now, the amendments to FISA sound rather benign, but when you consider what they entail for a bit, it looks as though our legislators have just given the government an additional opening to making Big Brother a reality. The amended FISA would allow wire tapping, based on certification. This, on its face, would seem different from the warrant requirement (or probable cause) enshrined in the 4th Amendment. Essentially, the government would be able to conduct surveillance of all incoming and outgoing electronic communications without any probable cause of wrongdoing.

Furthermore, a lot of what this amendment does is prevent the government from intentionally targeting a U.S. citizen for a FISA wire-tap. However, if it is discovered that they are in fact wire-tapping a U.S. citizen, the revised language does not mandate that the government seek approval from the FISA court to continue the wire-tap surveillance. So much for 4th Amendment protections. Furthermore, even when the FISA court does in fact deny the government's request for a wire-tap, the government can continue the electronic surveillance as long as the matter is being appealed.

Finally, according to the language of the amendments, it immunizes the telecommunications industry from all lawsuits relating to FISA-type wiretap cooperation. This includes all cases currently pending. The drafters apparently decided that the simple fact that a wire-tap request is put in writing, makes it right for a telecommunications company to comply with it. Therefore, there is no incentive for a telecommunications company to stand up to the government, since they cannot be sued.

Let's recap shall we. First, the Democrats in Congress vote gleefully for the PATRIOT Act, in the process trampling on our civil liberties. Second, the Democratic legislators then vote toe reauthorize the PATRIOT Act, further trampling on our civil liberties. Then, to show their commitment to protecting American institutions, like the Constitution, they help to vote for the amendments to FISA.

Now, prior to today, Senator Obama had been loudly proclaiming through his people that he would filibuster any amendments to FISA which included the provisions which were passed today. How did he vote? Well Senator Obama, like Senators .... oh wait the other usual suspects (and so-called leaders of the Democratic legislators) voted against the amendments. Color me shocked that some Democrats would have the moral fiber in an election year to be perceived as strong on civil rights and "soft" on terrorism.

And yet, Senator Obama did not. Instead of taking a stand and saying what was right, he chose the route of political expediency. The more I see him in action, the more I am concerned about what kind of leadership he would actually provide.

So far his great claim to fame is that he opposed the Iraq war from the beginning. Well that's fine, but at a certain point that runs out of steam. His record for getting bills through Congress is ... lackluster. He has apparently gotten six bills passed through the senate. On the other hand, he has made three tours overseas on fact finding missions. And this was not in a Senate controlled by the Republicans.

Where is the track record for change? Or is this just more of the same from the upper echelon of the Democratic Party: talking the talk but refusing the walk the walk.

Help Get A Giant to New York

Fourth of July in San Francisco

Heard at Chrissy Field during the fireworks:

"Great, we're freezing and we can now say we saw the fog turn pink."

If True About Obama... This Would Be Troubling

Seriously,... can someone tell me what he has accomplished as a senator?

YouTube, Viacom and IP Law

In the Southern District of New York, a federal judge ordered Google lost a discovery battle against Viacom. The two corporations have been locked in a battle over YouTube and whether or not the site is infringing on the rights of copyright holders, specifically Viacom.

Apparently in response to a discovery request by Viacom, Google refused to turn over certain information. The discovery request asked for, among other things, the search code data (used by Google to try and find materials which copyright owners claim is being misused/illegally posted) and logging data (i.e. who watches what, when, and how many times).

Despite the fact that there is black letter law which prohibits the court from ordering one party to share data as to who watches what (in the context of what is still called "video tape rental and sale records" 18 USC 2710) and when with another party (unless its the government of course), Judge Stanton did exactly that. As the EFF blog noted,

Google correctly argued that “the data should not be disclosed because of the users’ privacy concerns,” citing the VPPA, 18 U.S.C. § 2710. However, the Court dismissed this argument with no analysis, stating “defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative.”...

In any event, the court ordered production of not just IP addresses, but also all the associated information in the Logging database. Whatever might be said about 'an IP address without additional information,' the the AOL search history leak fiasco shows that the material viewed by a user alone can be sufficient to identify the user, even with neither a login nor an IP address.
The Court's erroneous ruling is a set-back to privacy rights, and will allow Viacom to see what you are watching on YouTube. We urge Viacom to back off this overbroad request and Google to take all steps necessary to challenge this order and protect the rights of its users.

The rest of the article can be found here.

However, in the court's order, the judge protect Google's "trade secrets" (i.e. its search and advertising code). Nice to see a judge who values privacy rights hard at work.

But what is more disturbing to me is the whole premise of this case. After reading the complaint, it seems that what Viacom is really complaining about is not that violations of their copyright occur. Its that Google is not doing enough proactively to prevent the copyright.

Now, admittedly, I am an IP idiot. I think that the way we have skewed IP laws in this country and many others, is threatening to quash innovation and the exchange of ideas. Do I think that artists and creators should benefit from their works? Yes. But why should their heirs continue to benefit from the work? Why should we continue to extend the protections of copyrights for individuals to the life of the author plus 70 years or, for corporations, to 95 to 120 years (based on when the work was published or created). Why do we allow drug companies to maintain monopolies on drugs for as long as we do, even though they did not have to pay for the basic research which was the basis for the drug in the first place?

So back to this case. As I mentioned, Viacom is complaining that it is too hard in the modern era to keep up will all those infringers out there. They are saying that since YouTube allows them to post on their site, it is YouTube's responsibility to do the copyright enforcement, not theirs. To me this seems ludicrous.

Part of the idea of copyrights and trademarks and patents, is that it gives the holder a right to enforce their rights. It does not mean that someone else, not affiliated with the copyright/trademark/patent holder has to go through and make sure the holder's rights are being enforced. For that reason, there is a safe-harbor in the DCMA.

It seems to me that Viacom is trying to get the rest of the world to conform with idea of paradise: IP right holders have to do nothing while everyone else scurries around making sure that material being used in whatever format is not violating some IP right's holder's rights.

Yes, there probably is a more elegant way to express that. But I can't come up with it right now. Should Viacom win this case, the potential effect on everyone who uses the internet is more than a little scary.