Goal line stand
Jack Balkin writes of proposed domestic surveillance and detainee treatment legislation:

I can't remember a time when two pieces of legislation were on the verge of passage that would so radically alter Americans' sense of our country--and its principles-- for the worse.

What is at stake in these two bills is whether we want the President to be free from judicial oversight and accountability; whether we want to maintain a system of secret trials with secret evidence; whether we want to announce publicly that our forces are not bound by the minimum requirements of human decency found in Common Article III of the Geneva Conventions. In their own way, each of these three issues revolves around our fidelity to the rule of law, and the meaning of America as a land where the rule of law is respected.

Senator Harry Reid and his allies in the Senate are the last people standing between this country and utter degradation. They must have our immediate support, and they must hear our demands to not budge another inch. This is a goal line stand for our democracy and our Constitution. We must not fail.

Reid will have my full-throated support for every filibuster he's threatening, from the William Haynes II nomination to the Specter domestic surveillance bill; I don't know what his plans are regarding the equally unacceptable Warner/McCain/Graham bill diluting the definition of war crimes, eliminating habeas corpus for enemy combatants "determined by the United States to have been properly detained as an enemy combatant" or the administration's preferred alternative bill, which "waters down" the Geneva article 3 torture definition to the McCain amendment "shock the conscience" level.*

I say filibuster all of it, without exception, and wait for the 110th Congress.

There should be absolutely no cooperation of any sort any longer between Senate vertebrates and their annelid foes in the Senate and White House. There's an election coming up in 54 days that ought to send Bush's allies swirling down the drain. That won't happen by itself, and I hope anyone reading this will be working and contributing to help win any Senate or House race they can between now and Election Day.

Until then, Senate Democrats should stick together and with Harry Reid and call a halt, once and for all, to the shame the Bush administration has brought on this country. Not only will it be the right thing to do, it will be the winning thing to do.

As soon as possible after the election, Congress should begin or follow through on many investigations of the Bush years -- the politicization of intelligence, the corruption in Iraq, the disdain for post-attack planning. It should roll back, without delay, the misconceived policies and "achievements" of those years. It should set a timetable for withdrawal from Iraq.

I don't think it unlikely or unthinkable that the investigations could lead to impeachment hearings, but because "fairandbalanced" is my middle name, I'm willing to wait and see on that. Still, impeachment may be the nice, moderate, centrist, fair and balanced position a year or so from now -- compared to extradition for war crimes.


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* The point apparently being that "shock the conscience" is context-specific; something that might shock the conscience under one set of circumstances might not under more trying "ticking time bomb" circumstances. While that can sound reasonable, it's too wide a loophole for too rare a circumstance for any administration, but especially for this one.

NOTES: "William Haynes II" -- this blog; "Specter domestic surveillance bill" -- Glenn Greenwald; "Warner/McCain/Graham bill" -- Marty Lederman at "Balkinization"; "eliminating habeas corpus" -- Hilzoy, "Obsidian Wings"; "administration's preferred alternative" -- Balkinization; "war crimes" -- Mark A. R. Kleiman.

UPDATE, 9/15: Avedon Carol: No matter how many Republicans grandstand about their commitment to protecting the Constitution before the vote, none of them can be relied upon not to fall in line once the matter actually comes to the floor. I think, as a matter of principle, the Democrats should filibuster anyway as a statement that this bill should never have been passed out of committee let alone allowed onto the floor. (Emphases in original.)
EDIT, 9/15: "NOTES," war crimes link added. In footnote, changed final phrase from "for this or perhaps any administration."
posted by Thomas Nephew at 2:17:00 AM -- |    

 
Republican Senators prefer no principles, witnesses
Arlen Specter gets his own fan magazine cover. Feature story: "Ten Principled Stands I Nearly Took."

George Allen looks back on his glory days at a Nevada ranch for The American Enterprise:

Probably another influence was the cow boss that I buckarooed for on a ranch near Winnemucca, Nevada. That was good: you just made your own rules, made your own laws there, you could do anything you wanted to do, really, and easily get away with it because there were no witnesses.

[TAE: (nervous laughter)

I made that last part up, they didn't blink an eye. -- ed.]

Hokaaay. You have the right to remain silent, George.


=====
NOTES: Specter via Avedon Carol, Allen via Raising Kaine. posted by Thomas Nephew at 1:14:00 AM -- |    

 
Princeton study shows Diebold e-voting machines can be hacked
Maryland voters are forced to use Diebold DRE (direct recording electronic) voting technology to cast their votes. As the Tuesday election in Montgomery County and elsewhere in Maryland showed, just organizing elections using this technology appears to overtax our state and local election officials.

But there's an even more serious concern: without independent, voter-verified hard copies of votes, how confident can you be that votes are being counted correctly?

It's a serious question. Ariel J. Feldman, J. Alex Halderman, and Professor Edward W. Felten of the Princeton University Center for Information Technology Policy have just released a paper on e-voting technology, Security Analysis of the Diebold AccuVote-TS Voting Machine:

This paper presents a fully independent security study of a Diebold AccuVote-TS voting machine, including its hardware and software. We obtained the machine from a private party. Analysis of the machine, in light of real election procedures, shows that it is vulnerable to extremely serious attacks. For example, an attacker who gets physical access to a machine or its removable memory card for as little as one minute could install malicious code; malicious code on a machine could steal votes undetectably, modifying all records, logs, and counters to be consistent with the fraudulent vote count it creates. An attacker could also create malicious code that spreads automatically and silently from machine to machine during normal election activities — a voting-machine virus. We have constructed working demonstrations of these attacks in our lab. Mitigating these threats will require changes to the voting machine's hardware and software and the adoption of more rigorous election procedures.

Follow the link above for access to the full paper, an executive summary, and an FAQ page. There's also a pretty compelling video to go with it:

Paper, voter-verified listings of votes and random audits are the minimum steps needed to help catch the kind of fraud the Princeton researchers have demonstrated how to commit.

Yes, that in turn means more things that could go wrong -- printers occasionally jamming, or running out of ink or paper. But that's the cost of doing electronic voting business, if we're sure that's the route we want to go. Optical scan voting (think SAT tests -- fill in the oval with a #2 pencil) or a return to all-paper voting are also acceptable alternatives that are at least as good, in my view.

Let your future state legislators -- in District 20, likely-to-certainly Heather Mizeur, Tom Hucker, Sheila Hixson, and Jamie Raskin (D)* -- know you want voter-verified voting whether via paper printout on Diebold machines, optical scan systems, or a return to paper ballots if need be. Write your own message, send them the YouTube video, send them this post (click on the little envelope button), or give them a call. By the way, I love to get comments here; please share your e-mail with me if you'd like.

While you're at it, let them know if you've lost confidence in Maryland State Board of Elections' Linda Lamone and Montgomery County Board of Elections' Nancy Dacek -- responsible for adopting Diebold technology and for Tuesday's snafus, respectively. (UPDATE, 9/14: OK, MoCoPolitics has a good point -- wait until November 8, then off with their heads.) Those snafus were a result, I think, both of incompetence and of having an overly complex voting system in the first place. Next time it'll be the poll books, the time after that something else.

Ms. Lamone, in particular, has been consistently and arrogantly opposed to adding voter-verified paper trails and audits to Maryland's voting systems for years. She's too invested in the electronic voting systems we suffered through on Tuesday. I think it's time for her to go. (If anything, let's not let Governor Ehrlich make her and electronic voting his issues in the upcoming election.)

Votes are the fundamental atomic units of any democracy. Yes, fixing or abandoning our current electronic voting systems will cost money. But I think it's worth it -- if we want to have confidence that we'll be able to vote on Election Day, and that the votes we cast are the ones they count.


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* I've combined candidate e-mail addresses for my convenience, and added CC's to state and county election boards for yours; modify as desired. --- Heather Mizeur and Jamie Raskin have made voter-verified voting technology key issues in their campaigns. To her great credit, Sheila Hixson has come around to supporting it, sponsoring the model bill HB244 in the last session. (The bill won 137-0 in the Assembly before Majority Leader Mike Miller unaccountably killed it in the Senate.) I don't know Tom Hucker's views on this subject, but don't anticipate he's against ensuring votes are counted accurately. --- Re other candidates: Aaron Klein sent a final e-mail message to supporters this afternoon, so he presumably doubts there are enough absentee and provisional votes for him to overtake Hixson. John Wrightson will be the single Republican candidate for a District 20 Assembly seat in the general election, but (a) he doesn't provide an e-mail address, (b) I wouldn't list it if he did, due to his bigoted platform, and (c) God has revealed to me that he'll lose anyway. Raskin is unopposed for the District 20 Maryland Senate seat in November.

NOTE: as ever, consult the TrueVoteMD.org page for the latest on this topic in Maryland.

UPDATE, 9/19: Tom Hucker writes to say,

"...I was the only candidate in our race to testify and lobby for HB 244, and I generated hundreds of emails and phone calls in support of it. As ED of ProgMD, I worked in coalition with TrueVoteMD, NAACP and other advocates, and was the only candidate who participated in Stan Boyd's district meeting with Sheila Hixson at his townhouse in Dumont Oaks during the legislative session. When the coalition couldn't get a reading on Mike Miller's position after the bill passed the House and couldn't get a meeting with him, I went to his office myself to get a reading on his stance (opposition).

PREVIOUSLY ON ELECTRONIC VOTING:

• March, 2004 -- You should have complained before you pressed the button
  
• July, 2004 -- "Circuits" begins electronic voting series: "newsrack" improves New York Times analysis
• December 2005 -- New "Gold Standard" electronic voting bill proposed in Maryland
  
• January, 2006 -- New Maryland "paper trail" bill gains support
  
• March, 2006 -- Proposed Maryland law won't gamble with our ballots -- a side-by-side table comparison shows that without proposed model HB244 legislation, Maryland's electronic voting machines are literally less sensibly administered than slot machines in Las Vegas. (Don't tell Bob Ehrlich!)
  
• March, 2006 -- 137-0: Maryland House wants Diebold out of 2006 elections
• September, 2006 -- Electronic voting gets even less popular in Montgomery County; One election judge's day at the polls
• ...and much, much more!
  

posted by Thomas Nephew at 5:45:00 PM -- |    

 
One election judge's day at the polls
Avi Rubin is a professor of computer science at Johns Hopkins University in Baltimore, and a noted e-voting activist who has been sounding warning bells about electronic voting systems for years, and who has recently published a book on the subject, Brave New Ballot.

Rubin has also served as an election judge in three elections, including yesterday's. He took notes during the day, and posted his account -- My day at the polls - Maryland primary '06 -- yesterday evening.

While Rubin mentions that a Baltimore County precinct also suffered the "missing key card" problem that hamstrung Montgomery County elections yesterday morning, much of the trouble he describes was with the "poll books," which have computerized the voter registration verification process in Maryland. Rubin came to realize that far from being an electronic barrier to voter fraud, inadequate synchronization and updates could mean one could game failing "poll books" themselves:

I pointed out to the chief judges who were huddled around me as I experimented, that as time went by, this poll book was going to fall further and further behind the others, and that if someone signed in on the others, they would be able sign in again on this one and vote again. After a call to the board of elections, we decided to take this one out of commission. This was very unfortunate, because our waiting lines were starting to get very long, and the check-in was the bottleneck. The last few hours of the day, we had a 45 minute to an hour wait, and we had enough machines in service to handle the load, but it was taking people too long to sign in.

It's a long post, but it's likely to become a classic in the annals of electronic voting activism, with plenty of other telling observations on the process Rubin witnessed. To me, the takeaway quote is this one, near the end (emphasis added):

I believe that fully electronic systems, such as the precinct we had today, are too fragile. The smallest thing can lead to a disaster. We had a long line of 'customers' who were mostly patient, but somewhat irritated, and I felt like we were not always in a position to offer them decent customer service. When our poll books crashed, and the lines grew, I had a sense of dread that we might end up finishing the day without a completed election. As an election judge I put aside my personal beliefs that these machines are easy to rig in an undetectable way, and become more worried that the election process would completely fail. I don't think it would have taken much for that to have happened.

Via Dan Tokaji's "Equal Vote" blog.


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UPDATE, 9/13: In comments about Rubin's post, fellow election judge "michaelweaselo" (Carroll County) seconds many of Rubin's observations, observing also that crashes of the voting machines seemed to happen more often with some "voter access cards" than others.
UPDATE, 9/19: Takoma Park blogger JMR was an election judge and posts a detailed entry about his experiences. No apparent problems with e-voting, plenty with (1) Montgomery County BOE -- "make do the best [you] can" -- and (2) with media for not making clear that 8-9pm voting had to be on provisional ballots.
posted by Thomas Nephew at 12:15:00 PM -- |    

 
"Pull it in or push it out..."
"...next stop: Metro Center."

-- Metro train operator announcement to final riders trying to crowd on to a full train this morning

Got quite a laugh from everyone. Another time I remember a different train operator said something like "Thank you for using Metro," and then suddenly added in a really high little kid's voice "And thank you, Mr. Metro guy!" People were giggling for the next five minutes. posted by Thomas Nephew at 9:31:00 AM -- |    

 
Electronic voting gets even less popular in Montgomery County
E-voting snafus happened throughout the county and elsewhere in Maryland today. The general explanation in Montgomery County so far seems to be that "human error" caused key cards -- credit card sized cards issued to each voter to activate an electronic voting machine -- not to be sent out with the machines, so that the machines were unusable. The Washington Post's Debi Wilgoren and Miranda Spivack report:

Polling stations in Montgomery County will remain open an hour later than usual tonight, to accommodate voters who were turned away from the polls this morning because of a glitch that left computerized voting machines across the county inoperable.

Circuit Court Judge Eric M. Johnson issued the order about 2 p.m., in response to a petition by the Montgomery County Board of Elections.

Boxes of automated voting cards that are required to work the electronic machines were mistakenly left behind in a Rockville warehouse in the run-up to Election Day, elections officials said.

Problems have also been reported in Baltimore and Prince George's County. From messages to local listservs, with permission of the senders:

• They got the voting machines going late at Piney Branch Elementary and the line was pretty long. Some of those who couldn’t wait around were voting with provisional ballots. They had pretty much got things smoothed out by the time we left at 8:15.
  
  
• I don't know about everyone else, but I am really worried about 2008. The problems this morning were county-wide, and absolutely, there were voters who showed up to vote, but had to leave to go to work....one man in particular, was there at shortly after 7, and couldn't wait a whole hour. There were plenty of volunteers for candidates, but not enough workers inside.
  
  [campaign volunteer at Silver Spring Library polling place]
  
  
  
• [~9AM] At two precincts I know of (Columbia Union College and Woodlin Elementary in Woodside) the machines are there but the key boards that enable them to work are not.
  
  I don't know whether they have enough provisional ballots at Woodlin, as I could not wait to vote. The election staff at Woodlin said they expected the key boards would arrive later in the morning.
  

Even once machines were eventually operational there were problems. More from e-mails to local listservs (again, with permission of the senders):

• When I signed in to vote this morning, the first voting card (the white credit card-type card you stick into the electronic voting booth) they gave me crashed the sign-in computer (this is the replacement for the old written voter lists). they rebooted the machine and put the offending card in a stack of other cards that apparently also crashed the system. This would not have been too big of a deal, except that the official tried to give me a "provisional" ballot, since the computer told her I'd already voted. Of course, I hadn't already voted.
  
  Fortunately, the head official came over, explained to the other official how to solve the computer problem, and managed to get me a valid voting card. Then, just to make things silly, a second official confused my card with another voter's card, shrugged, and just sent us both off to vote.
  
  
• The electronic machine failed twice while the election worker checked me in. The first time she had to reboot the machine. The second time it indicated I had already voted, and she had to go fetch someone with the right code to override the mistake. I did get to vote and the delay wasn't that long, but I found the experience to be disturbing and a reminder of the importance of a paper trail. Also, why does the election worker have to announce one's party affiliation? Not that it matters much to me, but it seems a little invasion of privacy for the election worker to announce for all in earshot to hear what my party is (D!).

I've received phone calls from campaigns urging people to vote, that the problems have been fixed. But the damage may well be done already, and some campaigns are worried about low turnout. Between the early voting legislative/judicial screwup and now this, there will probably be a lot of voters who wound up not casting ballots who would and should have. As the Post reports:

The cards began to be delivered by shortly after 7 a.m. and had been dropped off at all polling stations by 9:50 a.m., election officials said, and voting returned to normal. But for some of those who had shown up as early as 7 a.m. to cast their ballots and could not wait, it was too little, too late.

Heads should roll, starting at the top with Linda Lamone et al, and working down through Montgomery County's Board of Elections. I also anticipate and demand that fixing Maryland's baroque, broken electronic voting system be the first order of business of the new legislative session. Throw out these machines, and get optical scan or go back to paper ballots.

Yes, I realize it was "just" missing keys this time -- but I just wonder how hard anyone tried to avoid the problem. It's always something with this system and the clowns administering it. This is an unconscionable scandal.

If you're mad about this, consider supporting TrueVoteMD.org; they've been at the forefront in Maryland demanding paper trails for electronic voting that provide backup evidence to you and elections officials that the machine registered the votes you intended to cast. Earlier this year, a model "voter-verified" elections bill passed the Assembly by 137-0, only to founder in the Senate.

Strangely, Maryland elections officials have opposed efforts to provide paper trails and move towards optical scan voting. But I think their credibility has just taken a bit of a nosedive.


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EDIT, 9/13: "The electronic machine failed twice" message added.
UPDATE, 9/13: The Washington Post has a USA Today style graphic, "Voting Mayhem in Montgomery," showing how the process went awry; cards never made it into "Green Bags" early in the Board's pre-election countdown. See also the related article "Election Board Workers' Error Hinders Voting."
UPDATE, 9/13: More first-hand stories from MocoPolitics (campaign volunteer) and his/her readers.
IRRESISTIBLE UPDATE, 9/13: Max Sawicky ("MaxSpeak, You Listen! ") notes, "At some polling places, they ran out of replacement ballots and people were given scraps of paper to use. So don't be surprised if Moo Shu Pork gets on the Montgomery County Council."
UPDATE, 9/14: Takoma Voice's Eric Bond collects election snafu stories from guest contributor Bill Kules and readers.
EDIT, 9/14: I exaggerated. HB244 passed 137-0, not 193-0. posted by Thomas Nephew at 4:40:00 PM -- |    

 
Moral hazard
Worried CIA Officers Buy Legal Insurance, R. Jeffrey Smith, Washington Post:

CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.

Even though lawsuits against federal employees for misdeeds in the course of their work are extremely difficult to win, it turns out that worries about civil liability were yet another early harbinger of the news to come in later years:

In December 2001, with congressional authorization, the CIA expanded the reimbursements to 100 percent for CIA counterterrorism officers. That was about the time J. Cofer Black, then the CIA's counterterrorism chief, told Bush that "the gloves come off" and promised "heads on spikes" in the counterterrorism effort.

"Why would [CIA officers] take any risks in their professional duties if the government was unwilling to cover the cost of their liability?" asked Rep. Rob Simmons (R-Conn.), a former CIA officer, during congressional debate that year.

I don't mean to seem holier than thou here. I don't remember noticing this at the time, but I was angry, and worried, and wanted results. If I had seen a news item about this outlay, I may well have nodded my head and said, "let's shield these guys from legal harassment" or some such formulation.

But insurance has another effect on worries like these. In an interview with Kai Ryssdal on the business radio show "Marketplace" this evening, Smith expanded on his Washington Post report:

RYSSDAL: What does the CIA tell you about this?

SMITH: They say that they recommend that employees take it. That it's a prudent defense against the possibility of some kind of legal action against them. And that the number of people taking this insurance program has gone up, especially in the last two years, and especially among counterterrorism personnel. So, in effect, they are — I mean, I think that they're doing this to put people's minds at ease. They want people to feel that they can take more risks and pursue actions that are more bold without fearing the legal consequences and that's why they recommend it.

(Emphasis added.) Smith uses the circumlocution of "boldness", but he describes a classic case of "moral hazard": questionable behavior made more likely because insurance mitigates its costs.

But of course this is not merely a secretive agency finding ways to take the edge off its employees' worries, if not ease their consciences. This was Congress making a national decision to do so. And this was also most of us either sleeping through that, or shrugging our shoulders or even applauding it if we heard about it.

A kind of daisy chain of moral hazard connects us to those officers: just as they seek to avoid the full consequences of their actions, so do we when we abdicate our responsibilities to monitor and oversee and, when necessary, put a halt to our own government's questionable practices, while demanding results supposed to make us safer.

The photograph to the right has had two meanings to me since the day I first saw it. First, of course, there's the straightforward meaning: the attacks, the loss, and the sorrow of that day. But there's also a second, symbolic one: liberties and values endangered, silhouetted against a backdrop of war and chaos; a brighter world's day darkened.

I'm truly sorry to be dwelling on these things instead of just on the loss of all those poor people five years ago. But they aren't paying the price for our mistakes since then, we are. Five years later, we're defeating ourselves by ignoring our own values. We have to correct that, right the wrongs we've committed, and hold those who've ordered those wrongs accountable. Or we'll surely continue to do our enemies' work for them, and darken our own future. posted by Thomas Nephew at 11:59:00 PM -- |    

 
In Maryland, you have three delegates, so you have three votes
On Friday, Michael Raia ("Outside the Beltway") reported rumors that one candidate in the Democratic Maryland District 20 Assembly primary (Tom Hucker) was promoting "bullet voting" -- voting only once, for him, and not also voting for one or two other delegates. The suspicion may come at least in part from mailings by Hucker stating there's "One Open Seat." It's true, strictly speaking -- there are two incumbents running for the three district seats. But all three seats are up for grabs, and voters should, I think, aspire to cast the three best votes they can for those seats.

There's nothing deeply wrong with Marylanders deciding on their own to vote for only one Assembly candidate. They may only know that one candidate, or they may decide they don't want to risk casting the winning vote against the one they most prefer.

But there's nothing all that right about throwing away two thirds of your franchise either. In Maryland, you have three simultaneously elected delegates, not one, so you have three votes, not one. And I think there would be something wrong with a candidate asking his or her supporters to bullet vote. While it makes cold, mathematical sense from a candidate's point of view, I agree with Raia that it would be a kind of vote suppression to ask it of his or her supporters.

To cut to the chase, I'm glad to report Hucker has told me he did not ask his supporters to do that. I went to the Takoma Park Folk Festival today, hoping to find someone who could tell me whether the rumor was true. The first Hucker volunteer I found didn't believe there was a plan to bullet vote -- but also said that's what he was doing. He also told me I'd find Hucker nearby, which I did. While a friend I'd met earlier said she'd overheard bullet vote pitches by Hucker volunteers, when I asked Mr. Hucker about it, he made a "clean hands" gesture of denial, and said "not me."

To my surprise, Mr. Hucker had recognized me, bringing up the District 20 Fair Share online forum here earlier this summer; I had not got an answer from him then (nor from Ms. Mizeur or Ms. Hixson). He said he's no lawyer, and doesn't know how to fix Fair Share to overcome the RILA v. Fielder ruling against it. Like many of the other candidates, he's looking towards universal health care and ways to better fund current state health care. He said he hopes to have corporate taxes become a bigger share of Maryland's revenues, more like the 20% of the past than the much lower share today.

Hucker told me about campaign finance reforms he favors that would make it easier for candidates to compete without having to raise a great deal of money, which I support. But I also think that one of the virtues of the Maryland three delegate system is that it already does that. Fat campaign coffers are one way, of course, to vault into the top tier of votes on Election Day via a sheer "guess everyone likes him/her", "never heard of the others" sort of mechanism. But someone who is quietly impressive like a Lucinda Lessley, an Aaron Klein, or a Heather Mizeur need not necessarily amass a huge bankroll to gain a critical mass of "second or third" votes. (I realize some of them have pretty good finances as well, of course, and are all the first choices of many.)

Mr. Hucker is also impressive, of course, and quite gracious with me as well. His fiance Amy Fortin gave me a sticker as we concluded talking about Fair Share, which I took -- and he said "so I guess I've won you over!"; he knew I've mentioned my support for Lessley, Mizeur and Klein, which shouldn't have surprised me at that point. I explained I hadn't wished to offend. "Now I'm sad," she said.

Astonishingly -- unless you know me well -- it wasn't even the most mortifying moment of the weekend. Someday I may tell you more about my big speaking moment on Saturday, in which my mind turned into an empty, windswept plain and I could only stammer the single word "Hooee." If there's ever an award for "Most Wretchedly Pitiful Performance, 1 minute" I'm a lock. posted by Thomas Nephew at 11:20:00 PM -- |