Things as authorities

When we hear the word "authority" we often think of people who have set themselves up in positions of power and on whom we have become dependent. But there is another kind of authority, often more reliable and trustworthy, that can be provided by things. These are physical standards, security devices, automata, and other objects by which we coordinate our interactions with fellow humans, especially with strangers who might not otherwise be trustworthy. These technologies are crucial to our modern civilization and its ability to make dealings with strangers more secure and reliable.

Authoritative automata often come in the form of what (on a computer) Mark Miller has dubbed an admonition system. An admonition system reminds a person of a plan or of a legal or ethical obligation. A clock, for example, can remind a person of a scheduled meeting, and a cash register communicates an obligation to pay.

With some extra security a device may also provide a strong affordance that requires the person to act purposefully to use it or to avoid using it, and may also gather evidence of such use or avoidance, as with tamper evidence. A locked door, for example, reminds a person about whether they have consent to enter, makes accidental entry effectively impossible, and often requires those who enter anyway to leave behind evidence of lock picking or forcible entry.

Some technologies create standards that we all come to follow, as in standard weights and measures. Old unforgeably costly standards, such as those of shells used in hunter-gatherer and Neolithic cultures and the gold standard used up to modern times, enabled the emergence of money to replace barter and other costly and inconvenient in-kind transactions. Physical standards provide objective, verifiable, and repeatable interactions with our physical environment and with each other.

When new kinds of authoritative automata are proposed, the robotic response of Hello Kitty people is that they are inflexible and impersonal and thus not to be trusted. The Roman playwright Plautus made fun of early complainer of this kind, a bum objecting to one of the earliest authoritative devices, the sundial:

The gods confound the man who first found out
How to distinguish the hours. Confound him too,
Who in this place set up a sundial,
To cut and hack my days so wretchedly
Into small pieces! When I was a boy,
My belly was my sundial -- only surer,
Truer, and more exact than any of them.
This dial told me when 'twas the proper time
To go to dinner, when I ought to eat;
But nowadays, why even when I have,
I can't fall to unless the sun gives leave.
The town's so full of these confounded dials!

But history teaches that it is the many people who act strategically against strangers who are not to be trusted. It is human preferences, not machines, that are unpredictable and incomparable, as well they should be. For coordinating our interactions with strangers, impartial automata are often crucial.
To what extent will computer algorithms come to serve as authorities? We've already seen one algorithm that has been in use for centuries: the adding algorithm in adding machines and cash registers. Some other authoritative algorithms have become crucial parts of the following:

(1) All the various protocols network applications use to talk to each other, such the web browser protocol you are probably using right now,

(2) The system that distributes domain names (the name of a web site found in an URL) and translate them to Internet protocol (IP) addresses -- albeit, not the ability to register domain names in the first place, which is still largely manual,

(3) Ranking algorithms such as Google page rank (for relevance based on a particular text search) and popularity ranking algorithms such as those used by Digg, Reddit, and the like,

(4) Payment systems, such as credit card processing and PayPal,

(5) Time distribution networks and protocols,

(6) The Global Positioning System (GPS) for determining location based on the time it takes radio signals to travel from a orbiting satellites, and

(7) A wide variety of other algorithms that many of us rely on to coordinate our activities.

Algorithms give us the potential of moving beyond the weak and reactive security of most physical devices to strong and often preventative security. Technologies such as digital signatures and mulitparty private computation may be used to implement things like unalterable audit trails, smart contracts, secure and owner-controlled property title registries, and so on. Bit gold, or property titles to unforgeably costly bits, might be possible. These automata will rely more on distribution and protocol security and less on trusted third parties than traditional authorities. There is a strong argument to be made that algorithmic authorities should be open source.

We've just scratched the surface of what secure authorities we can establish over computer networks. Such authorities will make it far easier for 6 billion plus strangers to interact with each other securely and reliably.

Fifty years ago today

Today was the start of that glorious lost cause that ultimately won, the 1956 Hungarian Revolution. That event is today's featured article on Wikipedia. Since Hungary finally won its freedom from communist rule and Soviet control in 1989, October 23rd has been a national holiday.

Communism was an ideology based on envy of the rich but resulting in devastation to all. The keys to Soviet power were control over business, borders, and ideas. Control of the "commanding heights" of the economy and in particular control over food distribution made it highly dangerous to oppose communists rulers.

The Soviet bloc severely restricted exit, a policy known as the "iron curtain." A communist state was a vast prison camp: the government fed you and you were not allowed to leave. Except for a brief period during the 1956 Revolution, this state of affairs lasted until Hungary opened its borders to free Austria in 1989, leading later that year to the fall of the Berlin Wall and freedom in Eastern Europe.

Victim of communist genocide in the Ukraine, 1930s.

The Soviets had a control over the observed reality and beliefs of its subjects that is hard to imagine in today's Internet era. The communist party owned all broadcast stations and newspapers and severely restricted smaller-scale means of communications such as telephones, small printing presses, and copy machines (and later faxes and computers). Government art encouraged secular worship of a godlike Marxist avant-garde, echoing the deification of emperors in imperial Rome.

A crucial event in fighting totalitarianism: rebels took control of a radio station from the communist media monopoly and redubbed it "Magyar Szabad Radio" (Hungarian Free Radio)

Thus, although the Soviets had already murdered millions, directly and through robbery of food and other vital supplies (as in "Ukranian famines" under both Lenin and Stalin), little was known about these events: behind the iron curtain all mention of them was excised from academia and media; outside the iron curtain they were unknown, denied, or ignored. To this day these events, collectively the greatest mass murders in world history committed by any ideological movement within a single century, remain largely forgotten thanks to the remarkably successful efforts of Soviets in destroying or simply failing to report publicly the evidence.

Meatspace blog: messages for rebels in shop window.

The resignation of the Stalin-era dictator Mátyás Rákosi under pressure from the new Soviet dictator Kruschev in July of 1956 emboldened Hungarians to speak somewhat more freely among themselves. László Rajk, judicially murdered under the Rákosi regime, was reburied and celebrated and the anti-Stalinist Imre Nagy (pronounced "Nahj") was invited to rejoin the Hungarian Worker's Party (the communist party and the only legal party). On October 16th students in University of Szeged boycotted the official party student union and reestablished the non-communist MEFESZ student union which had been banned under Rákosi. Soon students all over Hungary followed suit.

Students demonstrating.

Members of the Hungarian Writer's Union and students, numbering over ten thousand, gathered to demand reform on October 23rd -- 50 years ago today -- at the statute of General Bem, a hero of Hungary's War of Independence in 1849. Students who had brought some Hungarian flags started cutting out the hated communist red star from the flags, leaving ragged circles. By 6 p.m., the crowd had crossed the Danube to the Parliament Building. Enthusiastic locals swelled it to probably well over a hundred thousand. Some enthusiasts toppled the largest Stalin statue, leaving his boots.

Stalin's boots.

The government radio stations, the only ones allowed, railed that the crowds were "reactionary mobs." ("Reactionary" was the favorite insult of self-styled "progressives" in both the Soviet bloc and the West.) In response a crowd gathered at Radio Budapest, guared by the State Protection Authority (Államvédelmi Hatóság or ÁVH), the communist Hungarian equivalent of the U.S. FBI. When some of the crowd's leaders expressed demands for equal time on the radio to rebut the government's slanders, the ÁVH detained them and the crowd grew even angrier. Soon the ÁVH fired tear gas into the crowd, and soon after that started shooting into the crowd. Hungarian soldiers (of the regular army) were sent in to assist the ÁVH, but when some soldiers witnessed the protestors being fired on they mutinied, joining the crowd. The crowd and its new army recruits fanned out, siezing control of military depots and distributing guns. The Revolution had begun.

Rebels overan the communist party's headquarters and cut out the hated red star from the Hungarian flag.

Ghandian non-violent resistance only works where there is a well-established free press sympathetic to the resisters. This was certainly not the case behind the iron curtain in 1956. After the ÁVH fired on unarmed protestors most of the Hungarian Army sided with the protestors, defended them from the ÁVH, and helped them capture the government radio station. With control of the radio station rebels were able to broadcast their rebuttals of the government's slanders, to call for justice against the murderers of protestors, and to make their case for anti-communist reforms. Military depots were raided and arms distributed to civilian rebels, defeating communist gun control.

The pigeonhole principle

The pigeonhole principle sounds trivial but is profound. It says that you can't fit n pigeons into fewer than n holes without cramming at least two pigeons into one of the holes. It says that somebody must lose in a game of musical chairs. In fancier mathematese, which you can safely skip if it sounds like gibberish, the pigeonhole principle says that there is no bijective (or 1-to-1 and onto) mapping (or function) between a set S and any proper subset of S, or for that matter any set smaller than S. [*]

The pigeonhole principle readily proves that there are people in Ohio with the same number of hairs on their head, that you can't eliminate the possibility of hash collisions when the set of possible input data is larger than the possible outputs, that if there are at least two people in a room then there must be at least two people in that room with the same number of cousins in the room, and that a lossless data compression algorithm must always make some files longer. This is just the tip of the iceberg of what the pigeonhole principle can help prove.

First let's prove that if there are n people in the room, where n is at least two, then there must be at least two (but not necessarily n) people in that room with the same number of cousins (of the same degree or less) in the room. In mathematese (which you can again ignore if you wish) being a "cousin" a symmetric relationship (if I'm your cousin then you're mine) and non-reflexive (I'm not my own cousin). The proof actually works for any such relationship: twins separated at birth, members of the opposite sex, and so on. Here it is, another proof by contradiction:

(1) Assume that each person in the room has a different number of cousins in the room;

(2) Putting the pigeons in their holes, one person must have no cousins, and another one cousin, and so on; the nth person must have n-1 cousins. That fills up all the holes with no doubly-stuffed holes, right?

(3) Yes, but if the nth person is a cousin with every other person in the room, then there can be nobody in the room with no cousins, so sequence (2) is an impossible contradiction, proving that in fact statement (1) is false: there must be at least two pigeons in the same hole, i.e. at least two people with the same number of cousins in the room.

Next let's prove (again by contradiction) that any lossless compression algorithm must make some file larger:

(1) Since it's a compression algorithm, by definition at least one file will be made shorter. Call the shortest such file F of size m which compresses to size n (i.e. n<m);

(2) furthermore assume no file will be made longer;

(3) thus every file of size n or less is incompressible;

(4) since no files are made longer, thus there must be at least 2^n + 1 files that compress to size n or less: all files of size n or less plus file F;

(5) but we can't fit 2^n + 1 pigeons into 2^n holes without putting two pigeons in one of the holes: in other words, at least two files must compress to the same output file, which is lossy compression;

(6) thus assumption (2) is false: if the compression is lossless some file must be made longer.

Lossless compression nevertheless can be quite effective because data is usually far from uniformly distributed among the 2^n possibilities. The most common patterns are given the shortest codes, resulting in overall compression in almost all real files that aren't already compressed, encrypted, or otherwise random.

The proofs on hairs and hash collisions are left as exercises for the student. (Don't you hate when math textbooks say that?)

An old pigeon farm, back when people actually ate these nasty critters. Presumably all the pigeons fit into all the holes.

[*] Update: this holds for finite sets; the technicalities are a bit different for infinite sets. See comments.

Three kinds of jurisdiction

Jurisdiction is the legal right of a court to order coercive process: to imprison a person, to put them on trial, to punish criminals, and to require plaintiffs with a variety of remedies (ranging from payment of damages to injunctions) at the expense of defendants. Subject matter jurisdiction is the areas of law over which a court may legally assert jurisdiction, and personal jurisdiction is those persons over which a court may assert jurisdiction.

The question of which court has jurisdiction is in theory independent of the question of which law will be applied ("choice of law" or "conflict of laws"), though they for various practical reasons they are often in fact intertwined.

Jurisdiction comes in three basic forms:

(1) Sovereign government. This is what we were taught in high school civics class -- courts have jurisdiction over us because -- well, because they're "the government," that's why. Many people now consider this the only kind of jurisdiction. However, historically sovereign jurisdiction had its origin in a much more general kind of jurisdiction:

(2) Property. One owns jurisdiction over certain subject matters, and exercises that jurisdiction over certain tenants or visitors to one's franchise territory, based on conditions in the property deed or covenant. Often the franchise territory is simply the territory of the land one owns and to which the franchise is attached, but the charter defining the franchise could specify a different territory. The largest jurisdiction is the realm itself, the jurisdiction owned by the king, and consisting of all jurisdiction in the realm not owned by others in the form of a granted or prescriptive franchise. Jurisdiction as property was historically often associated with feudal or colonial government, but the degree of decentralization possible varied radically. In its more decentralized forms (such as those of medieval Iceland, and to a lesser extent medieval and Renaissance England) this is a radically different model of jurisdiction than that based on sovereign government. More here.

(3) Contract. This has been common in various times and places, and is on the rise in many parts of the modern world in the form of choice of law and choice of forum clauses (often called "arbitration clauses" because they often specify a private arbitrator instead of a state court). Contractual jurisdiction works much better for relational disputes than for torts between strangers. Conceivably, however, a network of contracts in which people agree to delegate consent to jurisdiction could grow dense enough to cover most or even all persons who might contact each other. There are however no modern examples of this. Medieval Iceland has sometimes been interpreted as an example of universal contract-based jurisdiction, but is better viewed as a hybrid property/contract system, since it was based on a franchise-like property right called a "godord."

The U.S. Supreme Court splits on its justifications for why a state may exercise of broad jurisdiction. The view of conservative justices is just that states are sovereign over their territories, period. If the state "tags" you inside its territory you are "it" in their courts for any amount of liability, even if you were just passing through. Liberal justices have justified state jurisdiction as a kind of restitution or implied contract, described further below. Under both views you can also be hauled in from outside the state if you had "minimal contacts" with that state, for example shipping a product there.

Thoughtful political and legal scholars have long recognized that jurisdiction requires much more than brute force assertion: it requires some kind of consent of the governed. Legal scholar Lysander Spooner long ago debunked the idea that government is a "social contract" that you and I actually agreed to abide by. Neither you nor I have ever agreed to any such thing by any process resembling that of formation in contract law. The liberal justices dredge up a similar argument: by entering a state territory and performing some minimal act, such as driving on the roads, you have "availed" yourself of the protections of that jurisdiction. By driving on the road, for example, you have availed yourself of the "significant benefit" of police services, and thereby have now subjected yourself to the full sovereign jurisdiction of that state -- even if that puts you in jeopardy of a penalty far out of proportion to any benefit you have obtained, and even if the penalty is for something completely unrelated to the benefit.

For example, let's say you were married and living in New Jersey and your spouse ran off to California with the kids. You visit California for three days to see the children.

Both the liberals and conservative justices in the U.S. agree that your spouse can greatly extend your stay by hauling you into California court to dissolve your New Jersey marriage and split up your New Jersey property. But they agree on this grotesque idea for different reasons.

According to the conservatives, California is sovereign and can simply can tag you because you are in their territory. According to the liberal justices, you have "availed" yourself of the "significant benefits" of the California laws by driving on California roads, and thereby justified California gaining control over your marriage, your children, and your property. (The actual case was Burnham v. Superior Court of California, 495 U.S. 604 (1990)).

One cannot rebut the conservatives because they just make a raw assertion: a conclusory statement, not an argument. Your spouse simply needs to file a complaint and serve you with process in California territory: tag and you're it. Stay away from your spouse and kids and your New Jersey marriage and New Jersey property are safe from the tender mercies of the California courts. Take one step inside and it's all up for grabs.

The shallowness of the liberals' pseudo-contractual argument can be seen by translating it to an actual contractual setting. Suppose you stepped onto a car lot called Mike's Maserati Mecca and were talked into test driving that slick silver bullet you certainly can't afford. After a thoroughly enjoyable ride with Mike, in which you consented to follow his directions and availed yourself of the significant benefits of his hospitality, Mike presented you with a contract from the back office. He then declared that, by driving the car, you thereby agreed to buy it. The price is the standard market price, but that doesn't mean that you can afford it. Call it a "drive-wrap contract."

No court anywhere I know of would enforce this "contract": your small act of stepping into the car dealer's territory, availing yourself of property protected by Mike's security guard, and even the somewhat larger and related act of test-driving his car, in no way could be construed as consent to "rules of the territory" that include an obligation to purchase the car. Many courts have a derogatory name for this: "officious intermeddling." Another example: if the neighbor kid shows up one day and simply starts mowing your lawn, there is no implied contract whereby you owe the kid the typical price of a mown law. You may be morally or reputationally obligated in your neighborhood, depending on its norms, but it is not a legal obligation. The only vaguely analogous situation where a court will allow a person to force a contract with you is if you are completely incapacitated and desperately in need a help: if a doctor helps you, a typical court will construe the existence of a contract to pay the doctor a reasonable fee, because that is what you almost surely would have agreed to had you been conscious. This implied-in-law contract is also often called an action for "restitution": you have been unfairly enriched by the doctor, and must "disgorge" the unfair enrichment.

On the other hand, if you had started smashing on of Mike's Maseratis with a sledge hammer, Mike would under traditional common law be within his rights to restrain and arrest you for vandalism on his property. See also Semayne's Case for the implied franchise that pertains to one's house to protect it from trespass. While (in the same move away from traditional English law that gave us the doctrine of substantive sovereign jurisdiction in place of property-based jurisdiction) many jurisdictions have restricted rights to defend oneself and one's property, many other jurisdictions retain them in statute, such as the "stand your ground" statutes that give you the right to protect your property as well as yourself in your house, and in some state in your automobile and at your place of business. Similarly, if while in California you started beating your spouse, there would be no traditional common law objections to California dealing with you in defense of its resident. Committing a tort (or crime) is itself implied consent to tort (or criminal) jurisdiction.

The liberal justices with their pseudo-contractual or pseudo-restitutionary talk of "availment" to "significant benefit" giving rise to arbitrary jurisdiction do not explain why California's assertion of jurisdiction over out-of-state marriage and property is not also simply officious intermeddling. They certainly do not explain why, even if you've unfairly enriched yourself by driving free on California's roads, you should be forced to disgorge far more than the value you obtained, and in areas of your life unrelated to highway safety: your marriage, property, and children.

Assertion of sovereign jurisdiction, the kind were taught in school is the only kind, is in fact the kind of jurisdiction that is the most unjust and that is on most intellectually shaky ground. U.S. courts either simply don't try to justify it or try to justify it with absurd pseudo-contractual arguments. Like their intellectual forebears with their specious idea of a "social contract," many modern justices at least recognize the moral requirement for consent to jurisdiction. But they too fail to address the issue with intellectual seriousness, because the consequences for the law of jurisdiction would be too radical: their own courts could lose most of their power.

There are some good arguments for some sovereign jurisdiction, but they lead to a sovereignty far smaller than that exercised by the modern state. The necessity for some minimal sovereign court, to which you and I are bound "just because," seems unavoidable. For both the property- and contract-based jurisdictions there seems to be the need for at least a "night watchman" or "meta" court that determines the questions of basic jurisdiction itself. In property-based jurisdictions such as the franchises of England, the king's courts determined these questions as a matter of "trespass" on (infringement of) franchise property. It was also possible for a court to trespass on a defendant by violating basic due process rights associated with the type of jurisdiction, for example torturing the defendant or by denying right to a trial by jury. In a contract-based system, involuntary courts with large territories would be needed to determine, if disputed, the preliminary question of whether a proper contract had been formed with a proper choice of forum clause. In the U.S. this question is answered by the court with jurisdiction over the contract, usually a court of the state where the contract was formed.

Citron's "data reservoirs": putting liability at the wrong end of the problem

Danielle Citron has written an interesting article on liability for leaks of data like social security numbers (SSNs) that many organizations use as authenticators. Use of such weak authenticators increasingly results in failed (i.e. false) authentication ("identity theft") that harms a victim by imputing to that victims debts or bad credit history. Citron argues that the handling of such "personal data," like the reservoirs in Rylands v. Fletcher, should be deemed an "ultrahazardous activity", and thus that those who handle personal data should be held strictly liable for any damages caused in fact by the handling of that data (in particular, by leaks of that data subsequently used by "cyber-criminals" to harm a victim).

There are several things wrong with Citron's analysis:

(1) Strict liability, like other forms of liability, is generally limited by proximate cause. Indeed, I've never heard of strict liability coupled to mere cause-in-fact. If there is a data leak by Trent that enables Mallet to falsely authenicate himself as Bob, which failed authentication is then depended on by Alice resulting in harm to Bob, both Mallet and Alice are intermediate causes of Bob's harm. There is thus cause-in-fact but no proximate cause between Trent's data leak and the harm to Bob. Indeed, the typical identity theft involves a chain of causation quite remote from the data leaker and thus far beyond where courts have ever dared to tread. This is in sharp contrast to the completely unmediated causes in all previous ultrahazardous activity strict liability regimes.

The case Citron cites about the landlord being held liable for the harm of an assault inside his property arose as she states under negligence, not strict liability. Furthermore it was a rare exception, it is not the rule. In most states this would go the other way. The same issue of intermediate cause has rendered futile attempts to hold gun sellers responsible for crimes committed with their guns. The relation between the typical data merchant and the person referred to in the data is far more distant than the landlord/tenant relationship. Even the gun seller is fewer intermediate causes away from the harm of a typical murder than an SSN leaker is to the harm of a typical identity theft victim. Quite often the origin of the identity thief's false authenticator simply cannot be established, whereas the organization that depended on the false authenticator and proximately caused bad credit or false debt is well known.

(2) The article assumes data held by trusted central authorities who have the ability to protect this data at a relatively low cost, and that if they cannot protect it then society could do without the activity. The first assumption is questionable given the existence of tiny data fobs and many other ways to steal or accidentally lose data beyond the control of the organization. Citron debunks the second assumption herself by pointing out how ubiquitous and how important the use of such data is.

Furthermore, just about every organization in our society, and many individuals, handle data which could be used to harm people. It's hard to imagine articulating a rule clear enough (by, say, restricting it to specific kinds of data such as SSNs) to cover most of the risks, yet to put the risks on the major data brokers in particular but not on the rest of us. If strict liability is restricted to certain poor authenticators (e.g. SSNs) but not others (e.g. legal names), data brokers and authenticators will simply switch their activities to use the non-covered authenticators, which are often even weaker, the result being even greater levels of identity theft.

(3) Citron does not provide a clear set of rules, but clear and complely objective rules, and methods for gathering unambiguous evidence of violations, are crucial for a regime of strict liability.

(4) A much better alternative is to let liability lie on organizations that use information known to be widely distributed and often leaked, such as SSNs, as authenticators, and on organizations or individuals who most proximately cause the harm of identity theft -- those who even in good faith falsely report the victim's name to a credit bureau or try to collect a false debt from the victim that was incurred by depending on a false authentication of the victim. These situations are far more analogous to the landlord case -- like the landlord, they have established a relationship with victim; at least they have after falsely reporting the victim's name to a credit bureau or trying to collect a false debt from the victim. Indeed they are more proximate to the victim than even the identity thief: the thief fraudulently used the victim's authenticators, but the thief was not the party that directly harmed the victim by putting the false information on the victim's credit report or by attempting to collect a debt the victim did not in fact incur.

(5) Citron's "data reservoir" metaphor is facially attractive, but as with most physical metaphors applied to information it is highly misleading. The "water" (data) leaking here causes no obvious direct damage like a flood. Rather when data leaks it does not cause any damage until it is used by other parties, like water being used for irrigation. Applying Citron's reasoning to the latest e. coli contaminated spinach harm, Citron would make liable not the immediate seller of the spinach, nor the packager, nor even the grower who used the contaminated water. Instead Citron would put the liability on the rancher whose cattle produced the e. coli in the first place, even though e. coli is inevitable ingredient of manure and thus an inevitable part of ranching activity. Citron's strict liability rule would brinig the entire business of cattle ranching to an end. Just the same, in a world of laptops and fobs and a variety of other conduits, data leaks are an inevitable part of the indispensible business of handling data, and Citron's rue would devastatingly bring this business to an end.

Bottom line: liability should be put on the low-cost avoider. This is not merely a rule of negligence but a guideline for determining where any kind of liability should fall in any new area of commerce. The idea that the data brokers are the low cost avoiders in this system is highly implausible. Rather, here as with most other harms, it is those parties most proximate to the harm who can most easily prevent it. Furthermore, the evidence needed to hold parties liable will be far more reliably available for the proximate harmer than the remote data leaker.

Organizations that use widely distributed and easily leaked data like SSNs as authenticators, and who currently depend on such weak authentications for credit reporting and debt collection, can switch to more secure passwords at lower costs than would be imposed by Citron's regime. Organizations that fail to use secure authenticators, especially organizations that report information to credit bureaus or attempt to collect debts based on insecure authenticators, should bear the liability for identity theft due to the known insecurity of those authenticators, rather than organizations who inevitably leak already widely distributed data.

H/T: Emergent Chaos.

How to succeed or fail on a frontier

In the early 15th century, two nations at opposite ends of the world -- one vast and the other tiny, one an ancient and advanced civilization and the other recently emerged from a barbaric Dark Ages, one fielding large fleets with large ships, the other fielding small fleets with small ships -- both set out on the sea. Told that one of these nations was destined to travel around Africa and conquer the main sea trade routes of the world by the early part of the 16th century, any rational observer would conclude that this prophecy must refer to the vast and ancient civilization with its giant fleets. That observer would have been wrong. But why?

The vast nation, the Chinese Empire, sent abroad vast naval flotillas -- the Zheng He fleets. The main purpose of these fleets was not to develop trade, nor to protect trade, nor even to conquer. Instead, the main purpose was simply to display the glory of the Chinese Empire, which as everyone already knew was indeed the most glorious and powerful empire on the planet. A quite secondary purpose was to collect tribute, which came nowhere near the levels needed to fund the fleets.

Size of a Zheng He "treasure ship" vs. a typical Portuguese or Spanish caravel (here Columbus' Santa Maria).

These state fleets operated completely independently of the vibrant private Chinese merchant fleets that traded not only off China with Japan and Korea and the Philippines, but in Indonesia, Indochina, India, and as far as the east coast of Africa. Zheng He did not help to either protect, expand, or otherwise enable this trade. Instead Zheng He, a eunuch and master bureaucrat of the Emperor, sailed his vast fleet as far as Africa accomplishing little more than showing off the glory of the Emperor and collecting exotic animals for his amusement.

All it took was a political change for the bureaucracy to realize that these expeditions were far too expensive and ultimately pointless. But, as often occurs with politics, the Emperor overreacted and banned not only Zheng He's "treasure fleets," but also the productive trade of the Chinese merchants. The last "treasure fleet" returned in 1433 and China soon withdrew on itself.

A million-yuan giraffe, brought back to China from East Africa by a Zheng He flotilla in 1414 (click to enlarge). Not the most cost-efficient zoo acquisition, but the Emperor's ships were bigger and grander than anybody else's! In the same year, on the other side of the planet, the Portuguese using a far humbler but more practical fleet took the strategic choke-point of Ceuta from the Muslims.

Meanwhile, on the other side of the globe, a tiny nation of fishing villages and small-time crusaders set out on a different path. Assisted by navigators and investors from other parts of Europe, the Portuguese embarked on a pay-as-you go path of conquest and trade. They focused on conquering strategic points that allowed them to control, tax, protect, and enable trade. They enforced the property rights of their allied merchants and otherwise enabled the commercial institutions by which that trade could flourish.

The first little conquest was Ceuta, on the African side of the Straights of Gibraltar, the strategic choke point of the Atlantic-Mediterranean shipping routes. In 1414, at the height of the Zheng He expeditions, Prince Henry ("the Navigator") of Portugal conquered Muslim Ceuta for the Christians. Having gained this crucial strategic advantage over their Muslim and Genoan rivals, Portugal went on to conquer and settle several Atlantic island chains that had been discovered by the Genoans, including the Canaries and the Azores. The Portuguese also followed the older Genoese missions down the west coast of Africa.

At each step down Africa, the Portuguese set up trading stations. They traded European goods ranging from weapons to Venetian glass beads (used by many Africans as money and jewelry) for gold, slaves, and a variety of exotic products. At the same time the Chinese Empire was persecuting its merchants, banning them from trading overseas, the Portuguese were slowly expanding their trading posts down the coast of Africa, paying for their explorations as they went by setting up new and lucrative businesses.

Each expedition pushing farther south was a humble affair involving tiny numbers of small ships. Soon after the middle of the century, the Portuguese learned by repeated experience how to navigate out of sight of the (northern) Pole Star. Using this knowledge they made their way down the west coast of Africa in the southern hemisphere. Then they did what no Arab, Chinese, or Indian navigator had apparently done from the other direction. In 1488 Bartolemeu Dias' tiny fleet of caravels sailed around the southern cape of Africa and into the Indian Ocean. Four years later Portugal's neighbor Spain sent the Genoese navigator Christopher Columbus to Asia from the other direction, but Asia turned out to be much farther west than Columbus predicted and America sat in between.


Extent of the Portuguese maritime empire by the mid 16th century (click to enlarge). Controlled territory in green; forts and trading colonies in red. By stark contrast, China with its vast wealth, advanced civilization, and giant fleets failed to sail around Africa to set up trading posts on the west coast of Africa or Europe.

Using its now mature experience in open-seas navigation and advanced European technologies such as the cannon, as well as its good sense of affordable yet effective fighting and trading ships, subsequent Portuguese naval fleets soon conquered the main strategic choke points of Middle Eastern and Asian trade: Hormuz, Malacca, and others. Rather than ignoring merchants, they focused on controlling and enabling trade. They weren't out to show off the glory of Portugal; instead they created it. They invited investors from many other parts of Europe to send trading fleets. Trading between different Asian ports and trading European silver for exotic Asian goods both proved quite lucrative. By the early 16th century, the Portuguese had revolutionized navigation and had conquered the main trade routes of the world. Instead of Chinese fleets conquering Ceuta and Gibraltar and setting up trading posts in London and Lisbon, it was Portuguese fleets that set up trading colonies in India, Indonesia, Japan, and China. Soon other small European nations were to follow.

When it comes to the "final frontier" of space, it seems to be so far the West that has stepped into China's old shoes. What did Apollo return but glory and a handful of rocks? We proved that our socialists, if funded by taxing capitalists, could beat their socialists funded by socialists. Did such proof of bureaucratic glory really require 1% of our GDP over several years?

Apollo has been followed by several more white elephants that have much more to do with showing off the power and glory of federal bureaucrats than with military advantage or practical business. The space shuttle was originally promised to cost $36 million per flight (in today's dollars). It was supposed to greatly reduce the cost to space and thereby give rise to "space-based civilization." NASA predicted that we would have bases on Mars by the year 2000, and a generation of boys dreamed of growing up to be astronauts who traveled across the solar system.

A billion-dollar rock made of anorthosite, a very common mineral on earth as well as on the moon. But we got there first, and our rocket was bigger than theirs!

In fact the Shuttle ended up costing $1.5 billion per flight, over forty (40) times the promised price even when adjusted for inflation . The space station announced in the early 1980s and promised to be completed within a decade. But the first module was not launched (to be assembled into the greatly designed-down form of the International Space Station) until 1998. And just NASA's portion of the cost has exceeded its estimated cost for the entire program when it was first announced.

Past and current proposals for Moon and Mars bases are also nothing more than the same kind of dramatic white elephants: they have no realistic prospects of military advantage or practical business. NASA is still stuck on Werner Von Braun's sixty-year-old science fiction scenario of "space stations" and "bases" that have almost no practical use beyond showing off the power of federal bureaucrats to spend vast sums of money in dramatic ways.

There is a thread of space development that more closely resembles the pay-you-go methods of Portugal and other successful explorers and developers of frontiers. These involve launching useful satellites into orbit for communications and surveillance. As with the Portuguese, these serve both military and commercial purposes. They are not just for show. Spinoffs of these spacecraft form the flotilla of small unmanned spacecraft we have sent to by now explore all the planets of the solar system, as well as several comets and asteroids. The succesful Hubble telescope is a spinoff of the U.S. National Reconaissance Office's spy satellites. And environmental satellites have revolutionized weather prediction and climate study on our home planet. Recently, space tourism with suborbital rockets has demonstrated a potential to develop a new thread of pay-as-you-go space development largely unrelated to the prior gargantuan manned spaceflight efforts.

The Zheng He and NASA style of frontier-as-PR, where the emphasis is on showing the glory of the government, is a recipe for failure in the exploration and development of new frontiers. It is in sharp contrast to the pay-as-you go method by which tiny Portugal conquered the world's oceans, exemplified today by the practical unmanned satellites of the commercial and military efforts. It is by these practical efforts, that fund themselves by commercial revenue or practical military or environmental benefit, and not by glorious bureaucratic white elephants, that the successful pioneers will, in good time, explore and develop the solar system.

600,000 excess deaths in Iraq since U.S. invasion

A sample of 12,801 individuals in 1,849 households and in 47 geographical locations shows that the death rate in Iraq increased from 5.5 people thousand people before the U.S. invasion to 13.3 per thousand after. This is almost entirely due to a vast increase in the number of violent deaths.

This implies that about two hundred (200) times as many extra Iraqis have been killed since the U.S. invasion as the number of Americans killed on 9/11. While most of the deaths in the first year were attributed to the U.S.-led forces, most of the deaths since are attributed to insurgents. The study controlled for reporter bias by checking actual death certificates and finding them in 92% of the cases -- pretty good record-keeping and truth-telling for such a chaotic land.

Here is the study. Here is a good discussion of the study.

Just one.

Visual mathematics

Symbols are indispensible, but we lost something when symbolic algebra replaced geometry as the main medium of mathematics. My math is quite rusty but I understood these proofs within a few seconds. Via Teeming Multitudes.

Prosecute U.S. Justice Department lawyers as war criminals?

In an article most Americans (not including me) will find outrageous, but many international legal scholars and overseas judges will not, Scott Horton argues that U.S. Justice Department lawyers who advised executive officers that acts such as "extraordinary rendition," waterboarding, and so on were legal, when they should have known that they were war crimes, can and should themselves be prosecuted overseas for war crimes, along with the officers who ordered or carried out the alleged war crimes. I have previously discussed how many lawyers in and the bureaucratic culture of the Justice Department, and not just the current President, are morally responsible for the expansions of power, in violation of the U.S. Constitution and international law, that have occurred in the U.S. executive branch in former as well as recent years. Now Horton argues that these lawyers can also be held legally responsible for war crimes under international criminal law when they advised, having actual or constructive knowledge to the contrary, that those criminal acts were legal.

Horton starts with a premise that should be self-evident: "In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn." Horton cites the Nuremburg war crimes case United States v. Altstoetter. German Justice Department lawyers had drafted detailed regulations implementing commander-in-chief Adolf Hitler's "Night and Fog" (Nacht- und Nebelerlass) decree which authorized secret detentions, i.e. "disappearing" or "extraordinary rendition" in wartime, a violation of the Hague Conventions:

The [German] Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, "not farmers or factory workers," they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were "recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war." That is to say, they were customary international law. Further, the United States charged, this decree "would probably cause the death of human beings," grounding a charge of homicidal intent.

After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years' imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.

Horton also makes the interesting observation that Military Commissions Act, recently passed in the U.S., by so clearly preventing prosecutions within the U.S. for violations of international law, makes the assertion of overseas jurisdiction against U.S. citizens far more clearly legal in "universal jurisdiction" countries. Of course, practical politics will almost surely prevent overseas courts from exerting coercive process over employees of the world' s sole superpower, but it's nevertheless a quite interesting argument:

Clearly there will be no prosecutions in the US, certainly not under Attorney General Alberto Gonzales, who would figure near the top of anyone's list of criminal conspirators and whose name has already appeared in a criminal indictment relating to Abu Ghraib. But what about universal jurisdiction processes? Spain, France, Belgium, Germany, Switzerland and Italy all have universal jurisdiction statutes. Germany has already entertained a complaint against Rumsfeld, Tenet and others over detainee abuse questions. That complaint was dismissed without prejudice by the German Federal Prosecutor. In his opinion, the Federal Prosecutor stated that the first predicate of the statute had not been met since there was no showing that a prosecution for the crimes shown in the home nation of the defendants would not occur. Considering the political and military position of the United States, the invocation of a universal jurisdiction statute against sitting officers of the government has to be viewed as more than an uphill task. But I think passage of the [U.S. Military Commissions] Act has just made it a whole lot easier.

Reaching U.S. citizens with coercive process could be very difficult. But these universal jurisdiction countries could establish a war criminal suspect watch list for use in their airports, just as we have terrorist watch lists. Many Justice Department lawyers could then find themselves sadly limited in their vacation itineraries.

Hungarian Revolution anniversary

October 23rd will be the fiftieth anniversary of the Hungarian Revolution. It was a glorious lost cause; glorious enough that Hungary, and the world, won in the long run.

The Hungarian American Federation has a great 1956 page. Wikipedia has a good article. My alma mater happens to have a good collection of historical documents related to the Revolution, along with an introduction to the events. Here is an old newsreel that provides a good overview. Even Quentin Tarantino helped make a movie about the Revolution and a nasty game of water polo.

My dad was one of those students who wouldn't put up with tyranny. Besides communism being defeated in the end, there was a bright spot for myself and my siblings in particular: it brought my dad to America to meet my mom, making us possible. :-) But thousands of Hungarians didn't make it through November.

Liberty and habeas corpus (II)

The long reach of habeas corpus was reaffirmed by the U.S. Supreme Court in Hamdi v. Rumsfeld, in 2004, when it ruled that U.S. citizens detained in Guatanamo Bay, a U.S. military base on long-term lease from Cuba, were on U.S. territory and therefore have a right to plea to a U.S. federal court for habeas corpus and thereby enforce certain minimal liberty rights under the Due Process Clause. The companion case, Rasul v. Bush, declared that aliens (non-citizens) held at an overseas U.S. military base also have this right. However, recently passed legislation, the Military Commissions Act, has suspended habeas corpus protection for all aliens, even the tens of millions of aliens visiting or residing inside the United States proper. It also jeopardizes many of the legal protections U.S. citizens have against arbitrary detainment once we have invoked habeus corpus.

In Hamdi Justice Scalia, unusually joined by Justice Stevens, quoted William Blackstone's 18th century legal treatise, parts of which had also been quoted by Alexander Hamilton in Federalist #84:

"Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities. ... To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. ...

"To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, ... that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him." 1 W. Blackstone, Commentaries on the Laws of England 132-133 (1765) (hereinafter Blackstone).

Scalia added:

It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing. Cf. Kansas v. Hendricks, 521 U. S. 346, 358 (1997) ("A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment").

Both Scalia and Stevens held that this applied to military detentions of U.S. citizens as much as to imprisonment by civilian courts. However Scalia, but not Stevens, made a strong distinction between U.S. citizens and aliens. "Citizens aiding the enemy have been treated as traitors subject to the criminal process," and thus when imprisoned entitled to invoke the federal courts via habeas corpus.

The Great Writ has been often been suspended in areas and periods of warfare, allowing armies to capture enemies en masse without incurring legal overhead, but such suspensions have often led to unjust deprivations of liberty. Liberty, as well as life, property, and truth, is a common casualty of war. Without habeas corpus severe political oppression and deprivation of liberty through the practice of disappearing becomes all too easy.

Blackstone wrote about the conditions under which the writ might constitutionally be suspended:

"And yet sometimes, when the state is in real danger, even this [i.e., executive detention] may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing... . In like manner this experiment ought only to be tried in case of extreme emergency; and in these the nation parts with it[s] liberty for a while, in order to preserve it for ever." 1 Blackstone 132.

Among other constitutional problems with the recently passed legislation, the Military Commissions Act, suspending habeas corpus for aliens, is that it has done so until repealed by Congress, rather than "for a short and limited time." It's also absurd to argue, as some have, that the U.S. currently in a state of "invasion" or "rebellion" as required by the Constitution:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Art. I, §9, cl. 2.

In Eisentrager v. Forrestal, the Court had held that German citizens captured in China during World War II and imprisoned in Germany did not have the right to invoke habeas corpus in U.S. federal courts. The special conditions quoted in Eisentrager were as follows: the defendant " (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." Although Eisentrager was decided by a court similar to the Court that decided the notorious case of Korematsu, legitimatizing wholesale confiscation of property and internment in concentration camps of innocents in wartime, it does set at least some minimal bounds on what alien combatants may be arbitrarily derived of their liberty.

As Justice Stevens wrote in his majority opinion in Rasul:

this Court has recognized the federal courts' power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace. The Court has, for example, entertained the habeas petitions of an American citizen who plotted an attack on military installations during the Civil War, Ex parte Milligan, 4 Wall. 2 (1866), and of admitted enemy aliens convicted of war crimes during a declared war and held in the United States, Ex parte Quirin, 317 U. S. 1 (1942), and its insular possessions, In re Yamashita, 327 U. S. 1 (1946).

Stevens distinguished the facts in Rasul from those in Eisentrager:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

In concurrence, Justice Kennedy distinguished the Guantanamo Bay detentions from those in Eisentrager as follows:

The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the [habeas corpus] petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities....The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. [citation omitted] Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

During the debate over the Military Detentions Act some Senators, such as Arlen Specter (R-PA), argued that the habeas corpus provision of this Act was unconstitutional, but then, pathologically, voted for it anyway. In the early years of the Constitution, it was Congress, not the Courts, who were mainly responsible for making sure legislation stayed within constitutional bounds, and constitutional issues were often debated in Congress and were considered the most decisive issues. Voting for an admittedly unconstitutional Act was a highly irresponsible act. We have a seriously paranoid and unstable situation with Washington D.C. culture and it cannot be predicted how the highly divided Court with two new conservative membes will vote. Not just the Supreme Court, and not just the Executive, but all U.S. citizens, including Congress, are responsible for obeying the Constitution and ensuring that it is obeyed by our leaders.

New fun legal specialty

What could be wrong with more fun jobs for lawyers?

The Lex Gabina: ancient Military Commissions Act?

Historical novelist Robert Harris writes a good article on the parallels between Pompey's war on piracy, accompanied by the Lex Gabina, and the modern war on terror and accompanying expansion of unchecked executive power. The ancient Greek historian Plutarch wrote that the Lex Gabina, a response to piratical terrorism at Rome's main port, Ostia, ceded "what amounted in fact to an absolute authority and uncontrolled power over everyone." Literally Pompey was granted an authority to wage war that extended fifty miles inland from any coast, which included Rome and most other major cities and towns of the Republic. Perhaps not far from the arbitrary detentions now allowed under the new Military Commissions Act. The MCA grants the U.S. military the authority to detain either U.S. citizens or foreigners anywhere in the world and try them before military commissions with a bare minimum of due process. If you are not a U.S. citizen, there is no appeal to normal U.S. courts as habeas corpus for you has been suspended, regardless of whether you reside in the U.S.

Pompey did far better than our modern terror warriors: he is reported to have eliminated the pirate threat all across the Mediterranean within three months. But this was not followed by a rescinding of his powers. Rather, military jurisdiction over civilians came to be seen as normal, and political opposition to these powers came to be seen as a form of aid and comfort to rebels or pirates, and thus legally categorized alongside rebellion and piracy. Julius Caesar, followed by Augustus Caesar, would soon usurp Pompey's power, ending the Republic and creating the totalitarian Empire. (Yes, the political plot of "Star Wars" was loosely based on these all too real events).

Another parallel closer to our time was the Reichstag Fire, a terrorist attack which was followed by the Enabling Act. This statute, however, was a far more overt assumptions of arbitrary executive power and abrogation of the constitution than the Military Commissions Act.

The conversion of democratic fear into totalitarian power is a very ancient and devasting pattern.

Hello Kitty people

Nicholas Carr complains about the lack of human intervention in the calculation of many web search engine rankings. This popular viewpoint is like the silly final scene in the original Star Wars movie: turn off that darned machine and "trust the force, Luke." Never mind that web searches, like the torpedo or whatever that destroyed the Death Star, necessarily require complex technology, or that the algorithm can make billions of decisions in the time it would take Carr or myself or a Chinese firewall operator to make one. Carr bitterly complains that some commentary that he and I and Martin Luther King would find quite disagreeable comes first when you Google for "Martin Luther King." Out of trillions of possible short search phrases, Google's algorithm can be shown to produce an occasional poor result -- oh my!

Carr would thus like to substitute human judgment -- or more precisely, the judgment of some human who agrees with him -- for Google's algorithm. He makes the robotic assumption that a human is automatically more trustworthy than robot. After all, we are much more cuddly than robots. Like the humans that run the Chinese firewall, he fails to add.

But automata have often served as authority to great human benefit. In late medieval times, mechanical clocks replaced more erroneous or subjective time measures such as the sun or personal inclination. The result was that we be became better coordinated in all sorts of ways. The calculator on a cash register cuts way down on disputes over counting change. Entire professions like accounting, auditing, and the law, among others, exist because human strangers cannot, and should not overly pretend to, trust each other without some highly evolved, verifiable, and often repeatedly mechanical institutions. In other words, processes and rules.

Human trust requires being able to tell the "good guys" from the "bad guys." That only occurs among people who know each other well (and otherwise, in fiction). People who have gotten a close look underneath often misleading robes. For every other kind of relationship we depend on those loathsome processes and rules, as objective as possible. Whether we like to admit it or not, and we usually don't. And the people who don't are proud to say so. They sound like much more agreeable people if they just trust everybody, and expect everybody to trust them, regardless of how well they know or are known. Call them the Hello Kitty people. Until proven otherwise, each and every one of the six-plus billion people on the planet are angelic and adorable fuzzballs who can be fully trusted by everyone. Until disillusioned, Hello Kitty people purr with content. And thereby they come across as the most adorable of us all. As opposed to computer programmers or lawyers with our cold hard rules.

The Hello Kitty people are those teenagers who put their personal lives on MySpace and then complain that their privacy is being violated. They are the TV viewers who think that the Hurricane Katrina rescue or the Iraq war were screwed up only because we don't, they belatedly discover, have actual Hello Kitties in political power. When inevitably some of world's Kitties, unknown beyond their cute image, turn out to be less than fully trustworthy, the chorus of yowling Kitty People becomes unbearable cacophony.

The people who run search engines and other remote Internet companies are generally not our families, nor our close friends. They are not organizations we can come to trust merely based on their humanity. When it comes to strangers, human judgment is often far less verifiable, and thus far less accountable, than an algorithmic intermediary. When stranger trusts stranger, human judgment all too easily turns into human corruption. How many examples of strangers, or nearly so, killing each other, lying to each other, stealing from each other, and so on do you need in the news every day to be convinced that many strangers have other things on their mind besides your welfare? (Hint: the headlines are just the tip of the iceberg. Strangers harming strangers are vastly more common than an algorithmic Google ranking we'd all agree is erroneous).

With large institutions staffed by strangers (e.g. a big search engine company), the human appearances can be far more deceiving than for the people we know and therefore can rationally trust without the help of verified performance of rules. Among strangers a computer program, at least an open source one or one whose results can readily be tested by third parties, is often much fairer and far less corruptible than human judgment. The highly controversial area of web search rankings is probably one of the areas where this is the case. I usually trust simple objective ranking algorithms (e.g. those based on counting links) long before I trust the censorship of ideologized strangers like Carr or the censorious bozos on the Chinese firewall. But our emotional instincts evolved in small little tribes, and so there will always be countless Hello Kitty People to decry all these cold hard rules and programs in favor of their own fuzzy and cuddly illusions. If the world were just a fiction movie, or just a little happy tribe, I'd quite agree with them.

Liberty and habeas corpus (I)

The writ of habeas corpus is an order from a national court to a local entity that has imprisoned a person to (1) produce that person at the national court, and (2) provide that court with a good reason for the imprisonment. Habeas corpus is is an extraordinary writ, and for that reason runs much farther than the normal jurisdiction of the national court. The local entity commanded by the writ can be any entity within the nation, or any within any territory of that nation (including military bases), or on any of the nation's ships at sea: any entity at all that claims the right to detain people. Habeas corpus is almost a millennium old, and in various forms it is probably much older. It has been and remains the main way by which legal rights against the arbitrary detention of a person by any kind of entity are enforced. Habeas corpus well deserves its other traditional name: the Great Writ.

Two cases help illustrate how crucial habeas corpus has been to the development of liberty. The core meaning of the word "liberty" itself is simply freedom from bodily constraint without due process of law. For many hundreds of years in legal systems derived from English law, habeas corpus has been the main, and often the only, mechanism by which this most essential of freedoms has been enforced.

Dr. Bonham's Case, in 1610, played a key role both in the history of American and Commonwealth constitutional law and in the ending of the power of the guilds. Guilds were somewhat like labor unions or business cartels, but often with an extra power -- the power to themselves convict and imprison those operating in the guild's business.

Besides guild courts, there were a large number and variety of other franchise courts in England: church courts, merchant's courts, manorial courts, mining courts, colonial courts, municipal courts, the courts of private counties, and so on. The king's courts generally had no jurisdiction to hear appeals from franchise or military courts except by extraordinary writ -- the most important of which was habeas corpus.

Dr. Bonham was imprisoned by the London physician's guild for practicing medicine in London without their license. Habeas corpus made it possible for Dr. Bonham to appeal his imprisonment. The Court freed Dr. Bonham, holding that his due process rights had been violated by the guild: the guild's conviction had not been obtained before a proper court.

Somerset's Case, in 1772, played a crucial role in the abolition of slavery. Somerset was a (former, it was argued) slave (formerly) owned by a merchant from the American colonies. When Somerset escaped from his master, he was recaptured and put on a boat for the British territory of Jamaica. An abolitionist petitioned on Somerset's behalf for habeas corpus, which Lord Mansfield granted. Still on the high seas, the writ of habeas corpus ordered the British captain to bring Somerset to London to be produced before the King's Bench. Slavery was no ordinary kind of property: it was also a deprivation of bodily liberty. As such, habeas corpus made it possible for the slave to challenge his status as bodily detained property. The high court's writ of habeas corpus reached far beyond Great Britain to the United Kingdom's colonies and its ships as sea. Once Parliament banned slavery across the British Empire, the Great Writ was crucial in implementing the ban to abolish slavery throughout that globe-spanning enterprise.

The Great Writ has been often been suspended in areas and periods of warfare, leading to great abuse but also to the ability to efficiently and ruthlessly fight the war without the legal overhead. The U.S. Constitution specifies that habeas corpus may be suspended only by Congress, and only with respect to invasion or rebellion (it may not be suspended domestically due to a foreign war or mere domestic crime), and even then only so long as public safety requires the suspension. Article I (listing the powers of Congress) states:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Art. I, §9, cl. 2.

More about the habeas corpus , military detention, and the Military Commissions Act coming soon in a subsequent post.

UPDATE: Here are some subsequent posts on habeas corpus and the MCA:
The Lex Gabina: ancient Military Commissions Act?
Liberty and habeas corpus (II)