Nov 30 2001

Gilmore Commission

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In light of all the terrorist acts that have occurred in the last several weeks, it’s difficult to believe that there are some American politicians who want to reap more terror on that which is most sacred to our nation — the Constitution and the Bill of Rights.

Virginia’s governor wants to trample on the U.S. Constitution to stop cyber-terrorism, not physical terrorism.

But they aren’t going to do it to stop physical terrorism. Nope, they want to do it to stop cyber-terrorism.

I am talking about recent recommendations from a report by the Advisory Panel to Access Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction, the honorable James Gilmore, Governor of Virginia, presiding. The so-called Gilmore Commission has called for a secret Cyber Court in our country. This is different from the current Bush executive order allowing special military tribunals to try foreigners charged with terrorism.

To make sure we’re all on the same page, boys and girls, President Bush has signed into law an executive order that permits military tribunals with all its attendant secret proceedings. The order appears to permit these “trials” to take place in foreign lands under United States auspices. While Bush’s order appears somewhat vague as to whether or not the military tribunals could also take place within the United States. it seems clear that the defendants tried under such extraordinary conditions would be foreign nationals accused of terrorism.

Gilmore is proposing a whole other set of conditions which, if met, would pave the way[1] for secret trials in America of Americans accused of alleged criminal acts which are cyber in nature.

What is “cyber?” Anything Gilmore or his agents would label “cyber,” which presumably would be anything having to do with computer use (including, I guess, AOL users). Gilmore doesn’t really spell it out. But, hey, who can be bothered with petty, arcane, technical issues like what qualifies as a cyber criminal act?

Now the Sixth Amendment to the Constitution is quite clear about how and where trials will be conducted. The Amendment, in part, reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.” “Public” means that you, or I, or any our “representatives” — reporters, for example, can sit in a courtroom and observe the proceedings. Hear what the judge says. Ponder what the prosecutor alleges. Analyze what the defense counsel contends.

If some official at the trial misbehaves, or acts stupidly, well, the public will, we hope, find out.

Some time ago, back in 1969, we had a perfect case of judicial stupidly when looney tunes federal judge Julius Hoffman conducted himself straight out of Alice in Wonderland. Because the trial was public, like the Constitution says, everyone was free to sit in the court and watch this dishonorable display of judicial partiality.

My colleague, George C. Smith, exposed a more recent example of “extremely incompetent [U.S.] criminal investigators” who tried to convict a British hooligan of cyber-terrorism in a British court. (That quote, by the way, comes from one of the people who worked for the prosecution.) This, too, was a public trial, and we got to see the U.S. government’s incompetence.

Virginia’s governor is saying that judges can’t be trusted to preside over a cyber-terrorism trial.

Governor Gilmore and his associates now argue for a secret CyberCourt, to which you and I would be forbidden. This is necessary, he told Congress in October, because “prosecutors and investigators are often impeded in the enforcement process because [of] the lack of effective procedures and understanding by many in the judiciary concerning the nature and urgency of cyber security.”

Put another way, Gilmore is saying the issue of cyber security is so complex that judges can’t be trusted to judge. Or, to put it even more crudely, judges are too stupid to get it, which is why “prosecutors and investigators” will become our Kings and Queens of Hearts, calling for the beheading of some hapless 21st Century Alice-In-Cyberland.

Well, it turns out cyber security matters do get very complex — but not for the reason Gilmore suspects.

Back to basics. Computer technology is such that I can break into your computer, and use your computer to break into a third computer. Then I can steal what I like, do whatever damage I like to this third computer, and then, creep out of your computer, and return to mine — never leaving a single trace. For all intent and purpose, it looks like you did the crime.

This is why computer forensic evidence — hard evidence that can be used in an American Courtroom — is so difficult to obtain. It’s also why so few hackers or even serious computer criminals are ever prosecuted. Those convictions that are obtained, develop from a plea of guilty, with, typically, an agreed-upon-by-the-prosecutor sentence of “time served.”

If one listens to Gilmore, prosecuting alleged cyber criminals would be so much simpler and easier because the “prosecutor and investigators” would just inform the judge who is guilty of what crime. All this in the name of convicting a few domestic hackers or web page defacers or going after the folks from the Electrohippies or RTMark who won’t “get with the program,” i.e. the World Trade Organization or the World Bank.

Anyone who cyber-protests the wisdom of the WTO or the WB, well, they certainly need to be locked up. You and I don’t have to worry. You and I are OK. (Well, come to think about it, I’m not all that sure about you.)

No secret CyberCourtroom is going to prevent serious war-making computer terrorists, based in who-knows-what country, from wrecking havoc on this nation’s vulnerable infrastructure. If calling for military tribunals is an “unwarranted advance” against the Constitution, then Gilmore’s cyber-proposals amount to rape.

Are we actually going to extradite those cyber-terrorists who live in hostile places like, say Iraq, and then secretly try them in this country?

Protecting the infrastructure is hard, difficult work. If law enforcement is finding it almost impossible to identify bio-terrorists, how are they going to catch cyber-terrorists who can conduct their evildoing from any Internet corner in the world? And oh, by the way, are we actually going to extradite those cyber-terrorists who live in hostile places like, say Iraq, and then secretly try them in this country?

And oh, by the way, are we ever going to extradite those cyber-terrorists we already know about who live in friendly places like, say Taiwan?

My colleague, Rob Rosenberger, claims the Department of Justice “didn’t bother to indict malicious virus writer Chen Ing-Hau for supposedly destroying ‘thousands’ of U.S. government, military, corporate, academic, and personal PCs” with his Chernobyl virus. Why does the U.S. need a secret CyberCourtroom if we’re not willing to extradite known supervillains from friendly territories?

Calling for secret CyberCourtroom justice in this country is nothing more than bringing Taliban justice home.


[second edition]