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Grand Jury Hears Witnesses in the Palin Hacking Case:
According to the Chattanooga Times Free Press, the grand jury considering the Sarah Palin e-mail hacking incident heard testimony today from the roommates of the suspect, David Kernell. Glenn Reynolds comments, "I don't know why they would take a case to the grand jury this fast."

  That's what I would expect, actually. The prosecutors are taking the case to the grand jury now because they need to nail down the testimony of Kernell's roommates. The FBI executed the warrant at Kernell's apartment on Saturday night, and it's likely that they retrieved a whole bunch of different computers. To tag Kernell with the crime, they need to show that Kernell was the one at the computer that gained access to Palin's account at the time access was gained.

  There are some forensic ways of showing that, giving the timing of the attack and records kept on the laptop, if Kernell hasn't zeroed out his hard drive or otherwise tried to delete records on it. But the testimony of Kernell's roommates is likely to be very valuable for investigators, assuming that Kernell was in fact the wrongdoer here. The roommates can testify about where Kernell was when the attack occurred, what computer he was using, what computer he normally used, whether anyone else had access to the computer with the evidence found inside, etc. In addition, the roommates can testify about what Kernell may have told them at the time or how he was acting afterwards.

  Why get this evidence now and not later? One important reason is that the grand jury power lets the government get the roommates under oath: They will be sworn in to testify, and they can face perjury charges if they do not tell the truth. The government would want to get this now while memories are fresh and before the case is ready to be indicted. Once the indictment comes, the grand jury's work is done and the roommates can't be sworn in to testify until a trial (if the case goes to trial).
JunkYardLawDog (mail):
Here's a first OK,

I AGREE !!!

Says the "Dog"
9.23.2008 10:49pm
Oren:
Very effective tactic against the Reagan defense. I'm curious what the other legally-acceptable methods for refusing to answer GJ questions there are?
9.23.2008 10:56pm
trad and anon:
Oh, of course that's their motivation. It couldn't have anything to do with the election. No chance.
9.23.2008 11:07pm
OrinKerr:
Trad and anon,

I wouldn't say there is no chance, because we don't know the investigators personally (as far as I know). But I agree with you that this is their motivation and that it's not about the election.
9.23.2008 11:11pm
Philosopher:
Very good post by Orin, although I'd revise the reasoning slightly. The primary reason why you bring witnesses before the grand jury is not because their memory will fade with time. It's because you want to "lock in" favorable testimony so it is difficult for them to lie later on to help their friend's defense. As you point out, once you indict, you can't lock them in until trial unless you supersede.

And to answer Oren's question, there is no legal justification for refusing to answer questions before the grand jury unless the witness invokes the Fifth Amendment. I suspect that all of these witnesses were read their rights before going into the grand jury because they might have some exposure.
9.23.2008 11:21pm
OrinKerr:
Philosopher,

Oh, agreed -- that's what I meant by "nailing down" their testimony and getting it under oath.
9.23.2008 11:28pm
eeyn524:
Trad and Anon - nothing to do with the election, as you say. I'm sure if someone got hold or your Yahoo password or mine, we could be confident that multiple agencies would be after the perps immediately and a grand jury would be on the case within days.
9.23.2008 11:28pm
Dave N (mail):
There are some forensic ways of showing that, giving the timing of the attack and records kept on the laptop, if Kernell hasn't zeroed out his hard drive or otherwise tried to delete records on it.
From everything I have been told, short of the hard drive'sactual destruction, the data is recoverable, largely because even deleted data is only overwritten as space is needed--and most people never fill up their hard drives.
9.23.2008 11:29pm
OrinKerr:
eeyn524,

A good general rule is that the FBI moves very quickly when a story is front-page national news. I don't know who you are, but if gaining access to your Yahoo account would be front page national news, then I'm pretty sure the FBI wuold move quickly in your case, too.
9.23.2008 11:30pm
Michael B (mail):
eeyn524,

Give it a rest.

If this is some minor, state level, Democratic politician's son who instigated this intrusion, then it's difficult to see how any grand jury probe would impact the election one way or another.

Even a situation where David Axelrod, Obama's campaign manager, is directly implicated, the press is resolved to "pay no attention to that man behind the curtain." That being the case, a minor, state level politician's son's involvement in this hacking incident is not going to gain traction in the press, nor should it, and it's not going to sway voters one way or another either.
9.23.2008 11:32pm
eeyn524:
Prof Kerr - yes, and it's front page because of the election, which kind of proves Trad's point.
9.23.2008 11:32pm
eeyn524:
Michael B - sorry if I gave the impression I thought there was something partisan about the investigation. I'm sure (no sarcasm this time) that a Biden hack would also get a prompt response. My point is just that if the victim wasn't currently running for VP I really doubt there would be a giant rush to get it to a grand jury.
9.23.2008 11:37pm
JunkYardLawDog (mail):
[Deleted by OK on civility grounds. JYLD, using acronyms of common insults doesn't make the common civil. If you would like to comment here, keep it civil.]
9.23.2008 11:37pm
Paul Milligan (mail):
I'm sure the Feds want to send a message, very loudly and publicly 'Mess with a candidate on the national ticket during an election and your ass is ours, right here, right now. Not next year some time'.
9.23.2008 11:40pm
Michael B (mail):
eeyn, got it, I understand, apologies for the snark.

And a correction, the circumstantial evidence (re, this) strongly points to Axelrod but that much of the story remains an allegation, not a proven fact.
9.23.2008 11:41pm
eeyn524:
JYLD, you're reading something into the comment that's not there. Never said they shouldn't get on it fast, they should. I just don't buy the explanation that this is some special legal strategizing that would apply to any similar case not involving national politicians.

And who said anything about a conspiracy? I'll GYAFB when you give me one.
9.23.2008 11:47pm
whit:
What Orin said.

This was a national news front page story involving a state governor, and somebody hacking into her email account. Furthermore, it's reasonable to assume/suspect that the CRIME was motivated by the election, specifically by her candidacy.

all this PDS aside, I would expect the investigation to go right to the front of the queue and get handled expeditiously.
9.23.2008 11:48pm
whit:

From everything I have been told, short of the hard drive'sactual destruction, the data is recoverable, largely because even deleted data is only overwritten as space is needed--and most people never fill up their hard drives.



I don't want to get into a long wank about hard drive recovery techniques, but suffice it to say that when you "delete" a file... you don't. You just delete a POINTER to the file. The data is then part of the unallocated space on your hard drive.

There are WIPE programs that can arguably effectively purge data from your hard drive, although I have a friend who says an electron microscope can work wonders on the margins of each nibble, but again I really don't want to go into a long wank.
9.23.2008 11:52pm
eeyn524:
BTW Michael B - thanks for the link, it had some interesting stuff I wasn't aware of.
9.23.2008 11:52pm
Grover Gardner (mail):
Well, no indictment as of yet. But if someone hacks a major candidate's private email, I would hope the authorities would act fast. Someone with access to a candidate's personal communications could pose a threat to the candidate or the candidate's family. A big no-no.
9.24.2008 12:05am
JunkYardLawDog (mail):
[Deleted by OK. JYLD, I realize that you think your comments are so great that I should spend my time editing them carefully when you violate the comment policy. But this is a blog, not a nanny state: Get with the program or you're outta here.]
9.24.2008 12:17am
trad and anon:
A good general rule is that the FBI moves very quickly when a story is front-page national news. I don't know who you are, but if gaining access to your Yahoo account would be front page national news, then I'm pretty sure the FBI wuold move quickly in your case, too.
But how quickly? Is the need for this degree of speed really unrelated to the implied deadline six weeks from today? The motivation doesn't have to be partisan but the election can be a major reason to hurry things along without a partisan motivation.

Perhaps this degree of speed really is unaffected by the election except to the extent that the election makes it a high-profile case in the first place. And I've never been a prosecutor and you have, so I must give at least some deference to your judgment on this point. But I think some more explanation needs to be provided of why we should presume that the desire to make progress on the investigation before the election is not speeding things along.
9.24.2008 12:26am
Elliot123 (mail):
I knew the kid was under suspicion prior to the raid, so I presume he knew, too. A brand new laptop hard drive costs less than $100. Turn the laptop over, take out two screws, take out the hard drive, trash it, plug in the new drive, insert the two screws, run the restore CD that came with the computer, and the laptop is pure as the driven snow.

I will be surprised if the original HD is still in the machine.
9.24.2008 12:30am
OrinKerr:
Trad and Anon,

I don't think I get the question. Is the idea that you want me to parse out the percentage of the speediness that is related to the fact that this is a high profile case versus the percentage of the speediness that is related to the fact that the matter concerns a near term future event versus the percentage of the speediness that is related to political pressure? If so, is there anything else I can do for you while I work on that?
9.24.2008 12:32am
Elliot123 (mail):
"But how quickly? Is the need for this degree of speed really unrelated to the implied deadline six weeks from today?"

Have we ever seen district attorneys scheduling trials as a function of their own upcoming elections? Gambling! I'm shocked!!
9.24.2008 12:33am
Randy R. (mail):
If only they could move as fast to investigate Troopergate up in Alaska.....
9.24.2008 12:34am
Oren:

And to answer Oren's question, there is no legal justification for refusing to answer questions before the grand jury unless the witness invokes the Fifth Amendment. I suspect that all of these witnesses were read their rights before going into the grand jury because they might have some exposure.

There doesn't need to be a legal justification, just a failure to have specific recollection of a particular event. After all, we all forget all sorts of things all the time. I hope for the sake of our defendant that his roommates know how to forget things as well.
9.24.2008 12:55am
whit:
"troopergate" aka tasergate didn't involve a crime. what i do know is you have a trooper who was drinking in his patrol car, who tased his (11 yr old?) kid, who allegedly made threats etc.

i'm not saying that what he did justified firing... depends imo on his history of discipline/lack thereof, his honesty during the investigation, etc. but to compare a case where a governor (apparently) put some pressure on state law enforcement agency to put the hammer down on this trooper. *if* this trooper was just some guy who was divorcing palin's sister, i might think it was a big deal. considering this trooper's "interesting" conduct... i haven't seen much reason to believe it's at all a big deal.

certainly not as big a deal as hacking into a presidential candidate's and governor's private email account, then making same available for all and sundry to see on the web
9.24.2008 12:57am
Oren:
I will be surprised if the original HD is still in the machine.
Tampering with evidence.

Smarter move -- do all your criminal business in a virtual machine booted from a (virtual) live cd. Since there's no storage, there's no history and you don't need to suspiciously replace the hard drive or anything like that.
9.24.2008 1:02am
whit:
everybody's concentrating on the hard-drive, but don't forget his computer has an internet address, and it won't be difficult (unless he was very smart in covering his tracks) to track the activity to his computer, regardless of whether they can find stuff on the hard drive.
9.24.2008 1:20am
Elliot123 (mail):
Good idea. I suppose another approach is to use two hard drives - one for everyday stuff, and the other for the crooked stuff. That way the machine will have a normal HD full of all the accumulated crap that clutters most drives, and a real timeline of misc activity up to, during, and after the time of the crime.
9.24.2008 1:22am
Elliot123 (mail):
Whit,

Since we have the beginnings of a cyber crime novel here, the guy can just drive around until he finds an unsecured WiFi net. They are everywhere.
9.24.2008 1:24am
PC:
everybody's concentrating on the hard-drive, but don't forget his computer has an internet address, and it won't be difficult (unless he was very smart in covering his tracks) to track the activity to his computer, regardless of whether they can find stuff on the hard drive.

If the guy's online confession has any basis in reality, he was an idiot. He used a US based proxy service to do a password reset and then bragged about it. 1337 hacker he is not.
9.24.2008 1:32am
Dave Hardy (mail) (www):
"A good general rule is that the FBI moves very quickly when a story is front-page national news."

Is true. And this may be the first such case where the guy they announce as the first suspect actually did it. Or as the fad now goes, the first "person of interest." One might think that being an interesting person would not be derogative....

Maybe I'm becoming a softy in my old age, but I'd be all for scaring the suspect out of his mind, prolonging things to deter others, and then dropping matters. He's a jackass punk, needs to be taught a lesson. That can be done without giving him a felony record. A cop on the beat knows how to do it. Whether FBI on a high publicity case does so may be another question.
9.24.2008 1:38am
Bill Poser (mail) (www):
Whit,

If the hard drive has actually been overwritten, it isn't that easy to recover the data. The techniques involved require not only expensive equipment but a great deal of time. So, yes, if you have data that the NSA is willing to spend its time and money to recover, it is likely that nothing short of physical destruction of the disk is safe. If your data is anything less than that, a few overwrites of the disk should be sufficient. Even professional data recovery companies probably can't recover much from a region that has been overwritten. The "Great Zero Challenge" calls for a data recovery company to show that they can recover data from a disk drive that has been zeroed out just once. The challenge was issued on January 15th, 2008. There have been no takers. The three firms contacted by the sponsor of the challenge all refused to attempt it.

The really smart thing, of course, is run anything you don't want to be recoverable off a USB stick or other storage that you are willing to destroy afterward and for any files that you keep on your hard drive, use hard encryption. Not even the NSA can break the better encryption methods that are now readily available.
9.24.2008 1:41am
subpatre (mail):
Oren said "I hope for the sake of our defendant that his roommates know how to forget things as well."

...or that he wipes the gun clean before he plants it on his girlfriend? What's with the "I hope..." [crime facilitation] suggestions?

One theory about the rapid investigation is circulating in fickle Tennessee (remember Al Gore from Tennessee? The guy who didn't carry his own state?) that a quick resolution will acquit father Mike Kernell of wrongdoing.

That's the theory: Let the kid take the rap, clear pappa, and show Obama is not another hoodlum.

Oren's cheerleading (and several others here as well) will tell the Volunteers that Obama Democrats are criminal scum after all. As long as the issue drags on, gets covered up, dissembled it's to McCain's advantage.


BTW - Any comments on Wade Davies, Kernell's defense who also wrote this article on computer forensics?
9.24.2008 2:04am
JunkYardLawDog (mail):
[Deleted by OK. JYLD, I'm afraid you don't understand: Comment threads are not an opportunity for you to insult people, whether those people are other commenters or me. You have been a long time commenter here, and you have often been pretty abrasive, but I don't want to have to ban you. But you don't seem to appreciate that you need to be civil if you want to comment here. I'll give you a final warning: Be civil in every comment or else or I will ban you from commenting here. I assume you will think this is unfair to you, but that's the way it is; the choice is now yours.]
9.24.2008 2:56am
Dave N (mail):
Subparte,

I know litte about Wade Davies (though his resume on the firm website seems rather impressive) but his article comports with everything I learned last year in a series of seminars on computer crime put on by the National Association of Attorneys General.

In fact, since I sometimes teach Computer Crime for CLE purposes, I will likely contact Mr. Davies for permission to use his article as part of my course materials.
9.24.2008 2:59am
Gregory Conen (mail):
Isn't it more that the roommates can be compelled to give testimony by subpoena? If they lie to the federal investigators, under oath or not, they can be prosecuted under 18 USC 1001 anyway.
9.24.2008 3:25am
Angus:
I maintain my position that the devotion of so many resources to this case is dumb. At this rate the government will spend millions of dollars to track and prosecute a guy who did what? Bombed a building? Kidnapped someone? Tried to assassinate someone? Nope. Guessed someone's security password and got into their free Yahoo account. Hacking someone's email sucks, and is definitely unacceptable, but the baying for blood on conservative sites appears to me to be all out of proportion to the crime.
9.24.2008 5:20am
Dr. Weevil (mail) (www):
Angus:
The punk was trying to change the result of a presidential election. That seems to me to be very close to assassination in seriousness.

If you kill a cab driver or 7-11 employee, you deprive dozens or at most hundreds of people of a friend, relative, colleague, or employee. If you kill (e.g.) Robert Kennedy, you do all that and also deprive tens of millions of people of their right to vote for their candidate of choice. Assassinating political candidates is therefore far worse than ordinary murder. And trying to affect a presidential election by illegally publishing a candidate's private e-mails (and her childrens' phone numbers, among other things) is a far worse crime than doing the same to an ordinary citizen like you or me.
9.24.2008 7:57am
Arkady:
Doc Weevil's point is a little over the top, I think. I'm not altogether sure about the 'trying to change to result of a presidential election' thing as his primary motivation. I could be wrong, but I think it'll turn out that the main thing was, "Gee, look what I did!" I.e., adolescent hijinks bullshit. This is not to say that the hacking could not have had the result Doc mentions. But from my reading, the emails tell us as much about Sarah Palin as her two interviews have: precious little.

And, hacker's motivation aside, I do think it is a serious matter that needs investigation -- she is, after all, a candidate for vice-president.
9.24.2008 8:55am
Angus:

And trying to affect a presidential election by illegally publishing a candidate's private e-mails (and her childrens' phone numbers, among other things) is a far worse crime than doing the same to an ordinary citizen like you or me.

No, it really isn't. Killing RFK vs. killing a cab driver is the same crime. More people might mourn the former, but a human life is a human life. Both are murder. I've never heard anyone charged with "Murder of someone well-loved."

Hacking an email account is the same crime regardless of who is the victim. The only way this event could have influenced the outcome of the election is if the emails showed Palin doing something majorly wrong. And in that case the fault would have been with Palin rather than the hacker.
9.24.2008 8:56am
Richard Aubrey (mail):
Angus. You missed the point, deliberately, I'm sure. Nobody said one murder was worse than another.
What was said was that the social and political effect of one was significantly different than the other and so the polity is justified in seeing one as more urgent.

Just so you didn't think you got away with anything.
9.24.2008 9:01am
Oren:

everybody's concentrating on the hard-drive, but don't forget his computer has an internet address, and it won't be difficult (unless he was very smart in covering his tracks) to track the activity to his computer, regardless of whether they can find stuff on the hard drive.

The IP address was probably shared by everyone at the home (the router does NAT, for the technically inclined). The best you can do with the external address is nail down the house. Hence the need to question all the roommates ASAP.

Essentially, the prosecutor has them in a prisoner's dilemma -- if they all clam up (and provided the perp didn't leave any evidence on his computer), he's got no way to prove which one pulled the trigger (clicked the mouse?).
9.24.2008 9:12am
Oren:
...or that he wipes the gun clean before he plants it on his girlfriend? What's with the "I hope..." [crime facilitation] suggestions?
Can you please point me to the portion of any relevant law that insists that I have a perfect recollection of events when subpoenaed? If it just so happens that my memory gets a little foggy when served with official process, I don't think any law has been broken.

At any rate, if it's crime facilitation to point out the obvious then a lot of people on the internet are as guilty as I am.
9.24.2008 9:20am
jukeboxgrad (mail):
whit:

"troopergate" aka tasergate didn't involve a crime


That's not entirely clear. In Alaska, tampering with a worker's compensation claim is a crime. Someone told Branchflower, under oath, that "the governor's office wanted this claim denied."
9.24.2008 9:21am
Oren:

Isn't it more that the roommates can be compelled to give testimony by subpoena? If they lie to the federal investigators, under oath or not, they can be prosecuted under 18 USC 1001 anyway.

Yes, compelling testimony ASAP (which makes the "I don't recall" dodge much tenable) is absolutely essential. Federal investigators are liable to just get the "no comment" treatment.
9.24.2008 9:22am
Oren:
s/'much tenable'/'much less tenable'/ !$

Shouldn't post comments before coffee.
9.24.2008 9:23am
Eli Rabett (www):
charming to see oren recommending the Gonzales defense.
9.24.2008 9:28am
Oren:
Don't give Gonzales credit for the Reagen defense!
9.24.2008 9:30am
Richard Aubrey (mail):
Angus.
Further. It is one thing to phony up some military records in order to make an ordinary guy look bad. That's bad. But few are affected.
Phonying military records in order to throw an election in wartime affects far more people. Same crime, and all, but a different effect.
9.24.2008 9:41am
Angus:
Richard Aubrey,
I do indeed understand your point. I just strongly disagree with it. This case is totally different than the forged Nat Guard documents in that the hacker here used illegal means to uncover real information. Fraud to me is more serious of a crime than email hacking, and the range of loss from fraud alters the seriousness of that particular crime. Had something awful been in the emails that tipped the election, the fault would have been Palin's for doing the awful thing or things, not the hacker's fault for finding out about it.

What this boils down to is a simple case of an email account being hacked and no one harmed apart from a violation of an individual's privacy. And Palin's privacy is neither more mor less important than any other American's. Illegal? Yes. Important and worthy of a special task force and millions of dollars in a rush investigation? No.

I would feel exactly the same way had Obama or Biden been the victims of an email hack.
9.24.2008 10:14am
wfjag:

I've never heard anyone charged with "Murder of someone well-loved."

Ever hear of "victim impact testimony"? The prosecution seeks to depict the victim as a Saint, and the defense seeks to depict the victim as an A**hole who deserved to die.
9.24.2008 11:34am
Ben P (mail):

This was a national news front page story involving a state governor, and somebody hacking into her email account. Furthermore, it's reasonable to assume/suspect that the CRIME was motivated by the election, specifically by her candidacy.


Reasonable? Perhaps, but it was posted on 4chan for gods sake.

I have some experience moderating at least two different fairly large internet forums, and 4chan, and /b in particular can quite literally be described as the asshole of the internet. I'd challenge anyone here to browse /b for more than a minute without running across something that's probably illegal. It takes half that time to find something that's disgusting or truly disturbing. There's a reason posters and that image board are collectively referred to as "/b tards"


I'll concede that this particular kid may have had some political motivation, but a /b tard doesn't need political motivation to do stupid crap, they do it naturally.
9.24.2008 11:52am
MG:
This is off topic, but it seems like there are some knowlegeable people in the thread. When the terrorist groups post things on the Internet--like propaganda videos, or worse, videos of decapitations or other terrorist acts, why doesn't that leave a pretty clear trail back to the terrorists (or at least the person who put the material on the Internet for the terrorists)? Is it not possible to determine the physical location from which these videos were first added to the Internet?
9.24.2008 12:05pm
Oren:
The NYT did a pretty good introduction to the misanthropes/trolls that populate /b etc . . a little while back.
9.24.2008 12:06pm
Thorley Winston (mail) (www):

"Why does the name "Annenburg" keep coming up"



Because the Annenberg Foundation is the parent organization and primary source of funding of the Annenberg Political Fact Check.

And because last year during the Heller case, the Annenberg Foundation gave $50,000 to the Brady group when they advocated on behalf of D.C.’s gun ban which was one of the central issues in this piece.

They probably should have mentioned it when they wrote the piece because learning that this supposedly objective and non-partisan group is run by a larger group that gives heavily to gun control causes when they’re writing a piece critiquing an ad by a gun rights organization may make people question their objectivity as well as the quality of their work.
9.24.2008 12:06pm
Thorley Winston (mail) (www):
Sorry posted to the wrong thread.
9.24.2008 12:09pm
Oren:
MG, many message boards explicitly delete their logs every 24 hours, thus destroying any trace back. In most countries, that sort of information is not required to be kept until there is a court order to preserve it (provided that it is deleted in accordance with a set policy, not just ad-hoc -- e.g. if you always purge your logs at midnight).

Even if you have the server logs, all you get is an IP address which belongs to a particular ISP. You need to convince the ISP to give you their logs so you can connect the IP address to a particular customer.

Even if you have the location, it could be a house with many roommates, internet cafe, library or an unlocked wireless access point. Worse still, someone at that IP could be running a proxy server which effectively means you need to beg/subpoena the logs for the proxy server (which might be in a different country and hence beyond your normal legal power) and what you get is another IP address.

For smart perps that use dozens of proxies in dozens of separate jurisdictions, it's effectively impossible to trace the thread back.
9.24.2008 12:12pm
zippypinhead:
Based on public reports, even if the kid overwrote the HDD to NSA spec then dissolved the platters in acid, there is still probably enough to take the case to a jury. As cyber-crime goes, this one is pretty easy.

The roommates have every incentive to tell the truth before the grand jury to the extent they are able to deny being on-line at the times of the hacks (or even just able to deny using the subject's computer - presumably if they were online using the same network access at the time of the hacks, their own computers weren't also overwritten and can effectively corroborate their denials). Exculpatory testimony usually isn't too hard to elicit.

If somebody DID try to destroy evidence, all they will have managed to do is dig themselves into an even deeper hole -- if the kid simply agreed to an early plea on the substantive offense there would be a decent chance of getting only a misdemeanor conviction under the Computer Fraud and Abuse Act, or at worst a fairly low-grade felony. But destruction of electronic or documentary evidence in contemplation of an investigation is obstruction of justice under a number of statutes including Sarbanes-Oxley's 18 U.S.C. §1519, which has a 20-year statutory max, and was specifically enacted to nab crooks who destroy things early on before the Feds can get to them with a warrant or subpoena.

An old saying in political D.C.: "it's never the crime that gets you, it's the cover-up."
9.24.2008 12:19pm
zippypinhead:
When the terrorist groups post things on the Internet--like propaganda videos, or worse, videos of decapitations or other terrorist acts, why doesn't that leave a pretty clear trail back to the terrorists (or at least the person who put the material on the Internet for the terrorists)? Is it not possible to determine the physical location from which these videos were first added to the Internet?
Yes and no. In the Palin Yahoo case, it was easy because the kid was laughable inept at covering his cyber-tracks. But it's likely sophisticated terrorist organizations are using numerous anonymous proxies located in countries that will not cooperate with U.S. law enforcement or intelligence services, are uploading on unsecured public wi-fi links at obscure cyber-cafes, and are only providing the files to web sites hosted by ISPs who are sympathetic to their cause and take whatever steps they can at the server end to help cover the terrorists' tracks.

Someone once asked me a related question: why doesn't the U.S. just do a little cyber-warfare to destroy the terrorists' web presence? Good question. I suspect the answers are (a) we'd always be one step behind in the game of whack-a-mole so it wouldn't work anyway; (b) it would spawn an unfriendly backlash that isn't worth the cost, and/or (c) our intel folks actually gather a lot of good information from these posts and want them to continue.
9.24.2008 12:30pm
Rod (mail):
Angus,

I love your moral code. If the police pick the lock on a house and do no damage in their search, that is just fine. If they find any evidence of wrong-doing that is just the fault of the perp that lives in the house. If they search and find nothing criminal, then no harm no foul.

We can now get rid of that pesky fourth amendment.
9.24.2008 12:38pm
Dan Weber (www):
The challenge was issued on January 15th, 2008. There have been no takers. The three firms contacted by the sponsor of the challenge all refused to attempt it.

That's because it's not worth the time of the data recovery firms to participate in this joker's game.

I think he's generally right, and recovering data that is overwritten, even once, is extremely extremely difficult, but his "Challenge" is no more proof than all the "Cryptography Challenges" put out by various charlatans over the past 20 years are.

When the terrorist groups post things on the Internet--like propaganda videos, or worse, videos of decapitations or other terrorist acts, why doesn't that leave a pretty clear trail back to the terrorists ... ?

It leaves a trail off to some ISP in the middle of Chaosistan, who apparently don't keep very good logs, gee we are really sorry about that.
9.24.2008 12:38pm
Angus:
Rod,

Way to swing and miss. In your hypothetical, the action by the police would be illegal and worthy of condemnation. However, it would not be any more or less serious if done to Palin's home than were it done to mine.

Also, the 4th amendment does not apply to private individuals, but does apply to the police.
9.24.2008 12:56pm
Rod (mail):
Angus,

You noticed I used the term moral code? You seem only upset by the legality, not the principal of the thing.
9.24.2008 1:05pm
Oren:
Zippy is on the right track, except for the "incentive" part.

If the feds (or staties) started investigating my roommates, I will certainly refuse to answer any questions and my roommates would doubtless do the same for me. These people are friends, for pete's sake, and (good) friends don't help the government put you in jail.

The GJ subpoena makes it a lot tougher since you can't legally just refuse to talk, but even if I were innocent, I would certainly consult a lawyer on how vague, evasive and non-committal I can be before getting slapped with contempt or perjury (Alberto Gonzales could be a big help there).

There's obstructing an investigation and then there's refusing to actively help it along -- they are two very different animals.
9.24.2008 1:31pm
Ben P (mail):

If the feds (or staties) started investigating my roommates, I will certainly refuse to answer any questions and my roommates would doubtless do the same for me. These people are friends, for pete's sake, and (good) friends don't help the government put you in jail.


I think you're underestimating the intimidation factor.

We already know that the Feds staged an evening raid on this apartment. I'd wager a good bit of money that this raid included seperating the residents of the house and threatening all of them with something akin to "We'll charge all of you and we can put you a way for a LONG time, unless you tell us if X has said anything about it."

Most college students, even smart ones, would be scared out of their mind by then and probably wouldn't have the presence of mind to say "I'm not answering anything until I get a lawyer."
9.24.2008 1:37pm
Oren:
Most college students, even smart ones, would be scared out of their mind by then and probably wouldn't have the presence of mind to say "I'm not answering anything until I get a lawyer."
My roommates and I had an explicit talk about this. Nobody answers questions and nobody with apparent authority allows police in for a consent search. It's always good to make that explicitly clear.

Any good defense lawyer will tell you in no uncertain terms "NEVER TALK TO THE POLICE". It doesn't matter if you are innocent or guilty, it doesn't matter if they threaten to take you away to PMITA prison. Every US citizen should know their rights and the right to refuse to make any statement is chief among them.
9.24.2008 1:45pm
You say buy us, I say by us:
You can do a Government Wipe on a hard disk drive by Zeroing or writing all 1's to the platter. The NSA version does this a total of 4 times in a row and it's quite difficult to restore at that point.

However, not sure how legal that would be or seen as an attempt to destroy evidence.

This kid wasn't that deliberate or smart though. Looks like he saw a chance to do something "funny" and newsworthy and didn't do much planning, like offshore proxy / TOR / use a public IP and forged Mac Address.

Those password reset things really are a joke, though - simple social engineering will beat hack scripts and bribing inside officials almost every time.
9.24.2008 2:07pm
Angus:

Angus,

You noticed I used the term moral code? You seem only upset by the legality, not the principal of the thing.


On the contrary, I think morality is central to it. I don't believe that hacking Palin's address is either more or less immoral than hacking anyone else's address. However, many conservatives seem to think it is much more awful for someone to hack Palin than it would be for an average person.
9.24.2008 2:37pm
whit:

Reasonable? Perhaps, but it was posted on 4chan for gods sake.

I have some experience moderating at least two different fairly large internet forums, and 4chan, and /b in particular can quite literally be described as the asshole of the internet. I'd challenge anyone here to browse /b for more than a minute without running across something that's probably illegal. It takes half that time to find something that's disgusting or truly disturbing. There's a reason posters and that image board are collectively referred to as "/b tards"


I'll concede that this particular kid may have had some political motivation, but a /b tard doesn't need political motivation to do stupid crap, they do it naturally


i'm well aware of their propensity for hackery for sake of hackery.

however...

i think you are being stunningly naive if you don't recognize that it is more probable than not, that she was CHOSEN because she is a national figure, and a candidate for the second highest office in the land.

that's just common sense.
9.24.2008 2:39pm
whit:

Any good defense lawyer will tell you in no uncertain terms "NEVER TALK TO THE POLICE". It doesn't matter if you are innocent or guilty, it doesn't matter if they threaten to take you away to PMITA prison. Every US citizen should know their rights and the right to refuse to make any statement is chief among them


this is complete rubbish, and i've debunked it many many times. and i've spoken to several defense attorneys who have said they give that advice because they ASSUME their client is in fact guilty as hell, and they don't want HIM making that judgment, since they are paid to.

fwiw, I am assuming you are talking about situations where you are a suspect, or at least an investigation target.

i speak to hundreds of such people every year, the VAST majority cooperate and the VAST majority are BETTER off for doing so, especially when they are NOT guilty.

in terry stops, for instance, a simple explanation and they are back on their way. very common.

that's the real world. defense attorneys only see cases where the guy ends up getting charged, and thus have a selection bias where it seems every time some guy talks to police, he gets charged.

in general, police are more lenient if you are guilty and offer a decent explanation - happens hundreds of times a year with me and suspects. and if you are innocent, honesty is by far your best policy. period.

this ridiculous advice is repeated here ad nauseum and deserves to be debunked.

the job of the police is to clear the innocent just as much as detect the guilty. if you ARE innocent, it is almost always in your best interests to speak with them, even if in a suspect/target situation.

most people who have common sense (ie not lawyers lol) recognize this and DO speak with the police, and this is helps the system work much better.
9.24.2008 2:46pm
Ben P (mail):

however...

i think you are being stunningly naive if you don't recognize that it is more probable than not, that she was CHOSEN because she is a national figure, and a candidate for the second highest office in the land.

that's just common sense.


But her being targeted for this by a /b/ tard who may also have opposite political leanings, (and seriously, what kind of leanings do you think people would have that frequent a board where furry and cartoon pornography is posted?) is simply not equivalent to the implication made by some here that this was some sort of organized democratic party attack on her.
9.24.2008 2:57pm
whit:
i have no idea nor does anybody else know if it was an organized dem attack. i suggest if the shoe were on the other foot, people would be screaming ROVE ROVE but whatever.

there's what we know, what we have good reason to suspect, and what is just baseless speculation.
9.24.2008 3:05pm
You say buy us, I say by us:
And if you are guilty, this will help to cover your ass and avoid punishment. I know several potential-DUI people who avoided their punishment due to shutting up and refusing any of the tests. This kept their drunk asses from having them give the police evidence of their guilt and as a result their records are clean today. I personally picked up 2 of them from the police station and I saw they were still quite drunk several hours later.
9.24.2008 3:07pm
whit:

And if you are guilty, this will help to cover your ass and avoid punishment. I know several potential-DUI people who avoided their punishment due to shutting up and refusing any of the tests. This kept their drunk asses from having them give the police evidence of their guilt and as a result their records are clean today. I personally picked up 2 of them from the police station and I saw they were still quite drunk several hours later.



i'll repeat. if you are INNOCENT, it is almost always in your best interests AND In the interest of justice (allaying suspicion from you and the cops being able to get back on the right track) to speak to the police when in a target/suspect position.

i've personally beein in that situation - pulled over as a robbery suspect cause my vehicle matched the description of a get away car, and i had time/place proximity.

if you are GUILTY, then I would agree - in most cases (of serious crime) it's in your best interest not to give a statement. it doesn't mean it's the moral thing to do . but it is usually in the guilty person's best interests.

in some cases, (frankly, quite a lot) people guilty of minor crimes/infractions ARE better off being honest cause they are way more likely to get a break. i'm not talking about dui, though.

i had a pretty sweet episode (should be on an upcoming COPS episode) with a guy recklessly shooting his gun in the air, that was a good example of that, recently.

and as i've said before, DUI is about the only crime where the innocent are 100% protected from falsely being charged - the breathalyzer. if you are innocent, it will exonerate you. if you are guilty, it will convict you. it's a TRUE truth teller, which is why defense attorneys dont like it :) since defense is not (usually) about getting the truth out, it's about obfuscating the truth and getting a guilty client off.

fwiw, my jurisdiction is unique in that i almost ALWAYS have defense attorneys tell their clients TO blow on the breathalyzer, because if you refuse you lose your license for at least 1 year. but that's another story.
9.24.2008 3:16pm
zippypinhead:
If the feds (or staties) started investigating my roommates, I will certainly refuse to answer any questions and my roommates would doubtless do the same for me. These people are friends, for pete's sake, and (good) friends don't help the government put you in jail.

The GJ subpoena makes it a lot tougher since you can't legally just refuse to talk, but even if I were innocent, I would certainly consult a lawyer on how vague, evasive and non-committal I can be before getting slapped with contempt or perjury (Alberto Gonzales could be a big help there).
Except that's not how it works in the real world. Let's assume the subject and his roomates have a "pact" along the lines of the old Mafia "nobody talks, everybody walks" creed. It won't work here. Why:

You're dealing with 20-year old college kids who were the guests of honor at a late-evening search warrant execution, and have been dodging all the TV and cable news reporters camped out on their front stoop for the last several days. And worst of all - they had to tell mom that the Feds took their computer. Now an FBI or Secret Service agent shows up with a short-fuse grand jury subpoena. And they're advised in no uncertain terms that screwing up at this point basically ruins their lives. 95% likelihood that's enough

But let's assume these are especially determined, or dumb, kids, and they show up in the grand jury room still indicate in some way they're not going to provide any substantive testimony. They will then be hauled before a District Judge, who issues a formal compulsion order pursuant to 18 U.S.C. §6002, et seq., and explains exactly what will happen to them if they fail to testify truthfully and fully. If they don't have counsel, counsel will be appointed for them.

Every competent defense counsel in America salivates at the opportunity for their client to take an "immunity bath" via formal use and derivative use like you get in a 6002 order. Why? Because that's a Get Out Of Jail Free Card -- it's overwhelmingly difficult for the Feds to make the Kastigar showing necessary to prosecute a truthful immunized witness for the crimes they testified about. So counsel will advise the witness the following: (1) testify truthfully; (2) testify fully, making sure ALL the possible dirt gets transcribed on the record in the greatest possible detail; (3) and if you don't do #s 1 and 2, the government will first commence a contempt proceeding against you, and ultimately will prosecute you for false statements, obstruction, and everything else they can throw at you. And then the witness ends up in the grand jury room, being interrogated by an AUSA who already has bunches of evidence (some of which he confronts the witness with), with a court reporter taking down every word and 23 grand jurors sitting there scowling at the witness.

So what's a scared college kid to do? Keep your pact, even though it's pretty clear your roomate is going down anyway (and unlike the Mafia, is unlikely to have you whacked), or spill the goods and walk away free?

It won't be tough to get these witnesses talking under these circumstances... If tough guys like Oliver North, John Dean and the half of Enron that wasn't charged all dived headfirst into the immunity bath they were offered, these kids will too.

I think it was Richard Nixon who was caught on tape advising Haldeman that "nobody ever went to jail for saying 'I don't recall.'" Res Ipsa Loquitur.
9.24.2008 3:19pm
Oren:

in terry stops, for instance, a simple explanation and they are back on their way. very common.

Every time I've been Terry stopped, I've explained to the officer that I'm far too busy to answer his questions and giving them the silent treatment. That gets me on my way extra-fast since they can't drag it on by inquiring about my personal life.

Whit, your judgment here stands in contrast to the accepted legal advice from every defense lawyer that's been asked.


in general, police are more lenient if you are guilty and offer a decent explanation - happens hundreds of times a year with me and suspects. and if you are innocent, honesty is by far your best policy. period.

Yes, because they use your testimony to nail your roommate/girlfriend/passenger. The government doesn't pay me enough for me to want to act as their agent.
9.24.2008 3:48pm
Oren:
i'll repeat. if you are INNOCENT, it is almost always in your best interests AND In the interest of justice (allaying suspicion from you and the cops being able to get back on the right track) to speak to the police when in a target/suspect position.
If you are innocent and you have no moral qualms about snitching about the people around you. I happen to like the people that I associate with and have a positive interest in keeping them out of jail.

Maybe that's just me and my old fashioned sense of loyalty.
9.24.2008 3:51pm
Oren:

They will then be hauled before a District Judge, who issues a formal compulsion order pursuant to 18 U.S.C. §6002, et seq., and explains exactly what will happen to them if they fail to testify truthfully and fully. If they don't have counsel, counsel will be appointed for them.

Except that these consequences only accrue if someone can prove that they have no testified truthfully and fully. Unless you are an idiot, you make a mental note that you forgot something and you keep it forgotten forever.
9.24.2008 3:52pm
Oren:
Also, whit, on a more personal note, even if you are the kind of officer that gives people a break, I know plenty that don't.

My friend's little sister was driving around with some dope and the cop (who just had a good hunch) promised her that she wouldn't go to jail if she gave it up -- she gave it up and he hauled her ass to jail with a dumbass grin on his face (I saw the dashcam video that was produced during discovery).

Maybe you wouldn't do such a thing, but you can't tell me with a straight face that it doesn't happen. Cooperating with the police makes it easier for them to nail you, plain and simple.
9.24.2008 3:57pm
Oren:

with a court reporter taking down every word and 23 grand jurors sitting there scowling at the witness.

(1) Why does the facial expression of the jurors matter?
(2) I've given talks in front of nasty audiences (scientists are not kind people) and I can testify from personal experience that the more nasty the audience, the more I become inclined to give vague and evasive answers. If you give them something specific to latch onto, you are just digging your own grave.
9.24.2008 3:58pm
Smokey:
Angus:
I would feel exactly the same way had Obama or Biden been the victims of an email hack.
Please.
9.24.2008 4:15pm
whit:

Every time I've been Terry stopped, I've explained to the officer that I'm far too busy to answer his questions and giving them the silent treatment. That gets me on my way extra-fast since they can't drag it on by inquiring about my personal life.

Whit, your judgment here stands in contrast to the accepted legal advice from every defense lawyer that's been asked


not in the real world. i know plenty. they have admitted to me that they give this advice cause they are assuming the client is GUILTY. i am speaking real world, you are speaking based on selection bias and theory.

and if you are terry stopped and not guilty, it benefits YOU AND society to be forthright and truthful. the cops want to catch the guilty one. if that's NOT you, then you have nothing to worry aobut and often can help point them in the right direction . and are you sure you are talking about a terry and not a traffic stop when you were stopped?



Yes, because they use your testimony to nail your roommate/girlfriend/passenger. The government doesn't pay me enough for me to want to act as their agent.



false. that's not what i am talking about. i am talking aobut cops cut breaks ALL THE TIME when people are honest. i have had it happen TO me, and I have done it myself scores of times. there's reality, then there is your theories.
9.24.2008 4:34pm
whit:

If you are innocent and you have no moral qualms about snitching about the people around you. I happen to like the people that I associate with and have a positive interest in keeping them out of jail.

Maybe that's just me and my old fashioned sense of loyalty.



i'm not talking about "snitching". i am talking about YOU get stopped for terry or whatnot and you are not guilty.
9.24.2008 4:35pm
whit:

Also, whit, on a more personal note, even if you are the kind of officer that gives people a break, I know plenty that don't.

My friend's little sister was driving around with some dope and the cop (who just had a good hunch) promised her that she wouldn't go to jail if she gave it up -- she gave it up and he hauled her ass to jail with a dumbass grin on his face (I saw the dashcam video that was produced during discovery).

Maybe you wouldn't do such a thing, but you can't tell me with a straight face that it doesn't happen. Cooperating with the police makes it easier for them to nail you, plain and simple.



and cooperating with the police also makes it that much easier for them to catch the real bad guy and get a break. an anecdote is just that. one example. what that cop did imo is 100% unethical, and i have NEVER seen anybody i work with do anything of the sort. but again, one anecdote does not constitute anything but one anecdote.

like i said, you are suffering from theory'itis vs. the real world.

cops are evidence gatherers. it is at least as important to clear the innocent as convict the guilty. and if you are innocent, you help YOUR case by speaking with the police. that's reality. you don't SEE those cases because they don't go to court. so, again... selection bias
9.24.2008 4:39pm
zippypinhead:
Oren, you don't practice criminal law, correct? You've probably never been inside a Federal grand jury room? You don't know the law or procedure of Federal grand jury practice?

Take it from one who was in the grand jury room hundreds of times - and has seen a few tough guys, including Master-Of-The-Universe type corporate executives and even lawyer/general counsels, literally break down crying in the witness chair. In the real world, the pressure on a witness is immense. In the real world, the stakes are huge. In the real world, the incentive for the witness to come clean in exchange for use and derivative use immunity is overwhelming. In the real world, the penalty for not doing so is severe.

In the real world, the Palin hacker's roommates are either going to testify truthfully, or they'll get all tripped up by their lies in ways they will live to regret. The tools are there. The tools will be used fully, skillfully, and effectively by the AUSA conducting the examination. And the witness' lawyers will advise them to tell the truth, and the whole truth, because the Feds already have enough evidence to detect both lies and smoke. And the Feds will NOT be amused by lies and smoke.

In the Palin Yahoo hacking investigation, the subject's roommates aren't being asked to be a government "agent." They aren't being quizzed in a Terry stop. They are being haled before a Federal grand jury and have a legal obligation to testify truthfully. And their Fifth Amendment privilege can be extinguished by a compulsion order, so the "silent treatment" isn't going to do them any favors. If they don't testify truthfully, they're at serious risk of legal consequences FAR worse than ticking off Officer Whit at the side of the road.
9.24.2008 5:25pm
Morat20 (mail):
He was an idiot from 4chan. That's really all you need to know.

Far more interesting a question would be "Why was Palin using a Yahoo account for government business, as opposed to a more secure account" or "Why did she have such a moronic reset question" or I suppose even "I wonder if Alaska has the sort of sunshine laws that would make using yahoo email illegal, since it has no provisions for data archiving".

Otherwise, it's just a case of a 4chan retard gaining access to some moron's webmail, and the only "interesting" part is it's a government official whom we could all hope was smarter than to have a yahoo account secured by "What is my zip code".
9.24.2008 5:37pm
Oren:
Zippy, can you cite a real world case of an testifier being sanctioned or convicted for providing evasive testimony in a grand jury situation? I'm not talking about perjurers (e.g. Mr Libby) that made statements that were false but rather about someone that gave vague or non-concrete testimony.

I'm not doubting your expertise (quite the contrary, I'm revising what I thought about how the process worked!) but I am surprised that prosecutors have so much power to compel citizens to become informants for the government. When grand juries were less state-controlled, this might acceptable (e.g. at the founding, when there were no prosectors at all) but in today's system (ham sandwich, etc...) it strikes me as both abusive and repressive.
9.24.2008 6:46pm
Oren:

and if you are terry stopped and not guilty, it benefits YOU AND society to be forthright and truthful. the cops want to catch the guilty one.

Everybody is guilty of something whit. It's just a matter of pulling out the rulebook and finding something. I defy you to drive for 4 blocks without violating some traffic law that's a legal basis for a stop.

Even on foot, it's easy to dredge up an offense. Under the broad definitions in a few states, just about anything in your pocket qualifies as a concealed weapon (for instance, I wear a caribbeaner to hold my keys, I had a cop tell me with a straight face that it was banned as a subset of "brass knuckles" since it could be slipped over the knuckles and is metal). Anyone that's had a baggie of dope in their pocket has enough residue to be charged with possession (modern chemistry can detect 1 part in a trillion with ease). Stepping onto the curb not in a crosswalk is jaywalking. Spitting on the street is illegal in many states.
9.24.2008 6:55pm
Richard Aubrey (mail):
Angus. I was referring to your comparison of the murder of RFK and Mr. Nobody.
9.24.2008 8:37pm
David M. Nieporent (www):
not in the real world. i know plenty. they have admitted to me that they give this advice cause they are assuming the client is GUILTY. i am speaking real world, you are speaking based on selection bias and theory.
Sorry, Whit, but you're talking about, at most, you. Defense lawyers deal with lots of officers. It has nothing to do with thinking the client is guilty; it's that police think the client is guilty.
9.24.2008 9:45pm
zippypinhead:
Zippy, can you cite a real world case of an testifier being sanctioned or convicted for providing evasive testimony in a grand jury situation? I'm not talking about perjurers (e.g. Mr Libby) that made statements that were false but rather about someone that gave vague or non-concrete testimony.

...I am surprised that prosecutors have so much power to compel citizens to become informants for the government.... in today's system (ham sandwich, etc...) it strikes me as both abusive and repressive.
I almost changed my username to "Ham Sandwich" for this comment, but that would be wrong, eh?

On your first question: I personally reduced and even revoked a number of USSG §5K1.1 downward departure recommendations for sentences pursuant to plea agreements when conspirator witnesses who had committed to cooperate went south with implausible "I don't recall" type answers. That's actually not unusual, and seldom makes headlines since it's merely killing a potential break for a conspirator rather than a de novo prosecution. And it's amazing how many more times I've suggested I was considering doing just that, and almost immediately thereafter the witness had a miraculous return of memory. I've also had cases where District Judges decided on their own initiative to depart upwards on sentences by as much as 50% from Guidelines levels and/or plea agreement recommendations based on uncharged obstructive behavior that offended them. On a bigger scale, I recall reading that the Justice Department's Antitrust Division recently had fairly significant litigation through the Court of Appeals level after they revoked a non pros agreement with a corporation whose cooperation in an investigation failed to disclose all relevant facts as they'd committed to do. So yes, sanctions happen, and not just for the famous "it depends on what the meaning of is is" response of a certain impeachment defendant (and now disbarred attorney) we all know.

But seriously, a Federal investigatory grand jury is a powerful tool, with potentially powerful sanctions. Grand jury witnesses are not "informants," they're merely required to truthfully answer questions, with lawful disincentives for not doing so. And every tool and technique I mentioned in above comments has passed Constitutional muster with SCOTUS.

In the Palin hacking case, it seems that the FBI/Secret Service already had the most damning evidence in hand from search warrants, cooperating ISPs who produced server logs, and public sources including the subject's own blog admissions. The grand jury roommate witnesses were likely called to (a) tie up loose ends, and (b) foreclose possible avenues of defense. Under those circumstances, any decent defense lawyer would tell the client/witness there's no percentage in trying to play hide the bacon on the AUSA.
9.25.2008 12:31am
Richard Aubrey (mail):
zippy.
Thanks for the description for us IANAL types.
Question: If the truthful answers aren't useful,
what do you do to get the right ones?
9.25.2008 9:27am
Oren:
Zippy, thanks for the description for the non-lawyers.

Followup question, the cases you cited were all 'sanctions' for guilty conspirators. I was proposing that the non-guilty roommates play "hide the bacon" because they don't need a downward departure or any other kind of break. In fact, they don't need anything from the prosecutor or judge at all because they will not be found guilty of any crime. The most they need to do is stay just clear of a perjury/obstruction charge or some other contempt sanction.

So I return a modified version of the original challenge -- can you cite any cases where innocent testifiers were sanctioned for "I don't recall" or other evasive techniques.
9.25.2008 9:57am
Oren:
Or, perhaps more helpful, can you explain what pressure you can put on a demonstrably innocent testifier that wants to withhold as much information as possible?
9.25.2008 10:00am
Richard Aubrey (mail):
So, if you start a question with, "Isn't it true that....?" and the kid says, "No.", you tell the judge, "Got no case, your honor. I'm outta here."
Or is it only cops who coerce testimony?
The description of the intimidating atmosphere of the GJ indicates that you could get almost anybody to say almost anything.
And, even if he does tell the exact truth, some investigator's hastily hand-written notes may differ in some minor degree, so you have either perjury or lying to an investigator.
How can you lose?
9.25.2008 11:20am
Oren:
Richard, a smart responder always restates or reframes the questions so that he can provide the most accurate answer on his own terms. This is something that I learned even without going to law school (I'm a scientist, answering hostile questions comes with the territory).
9.25.2008 1:22pm
Richard Aubrey (mail):
Oren.
Okay, you're a scientist answering in matters pertaining to your field which the questioner has spent a day studying.
Now, let's say you're a nineteen-year-old kid and the questioner doesn't let you reframe the question?
You start, he interrupts. You start again, he interrupts. You start again, he implies you're trying to dodge.
You start again, he mentions perjury.
9.25.2008 1:28pm
Oren:
You patiently explain that you will answer the question when the questioner stops talking.
9.25.2008 1:37pm
Oren:
Also, the hardest questions come when you know a little bit about a field that the questioner has studied for decades.
9.25.2008 1:38pm
zippypinhead:
Wow, guess I started something...

Some of the questions from Oren and Richard are typically covered in law school trial practice courses or the trial advocacy courses that junior AUSAs take at DOJ's National Advocacy Institute (and that anyone can take at NITA or other CLE courses), and are basically examination technique issues. But:
Question: If the truthful answers aren't useful, what do you do to get the right ones?
LOL! Truthful answers are useful even if they're exculpatory -- believe it or not, prosecutors aren't interested in convicting people they believe are innocent -- which not only takes away scarce time and resources from getting the real crooks, but more importantly would be a clear ethical violation and probably worthy of a few additional millenia in Purgatory in the next life, to boot.
I was proposing that the non-guilty roommates play "hide the bacon" because they don't need a downward departure or any other kind of break.
The problem with trying to be evasive is that it's really hard work to remember your spins, shadings, and lies. On sensitive topics, a skilled examiner will return to the topic repeatedly, often approaching it from different angles and deeply probing small details, looking for inconsistencies. There's a standard examination technique called a "perjury trap" that basically involves giving an evasive witness enough rope to hang himself, getting him to buy into demonstrably false propositions that appear to support what he's trying to do, then at one's leisure yanking the rope he's spooled around his own neck -- either right then by impeaching the witness, by taking a break to tell the witness's lawyer his client just stepped in it and he ought to have a little chat with him about clearing the stench, or by just holding it until a later time when it becomes relevant (like when you return a false statements indictment). Scooter Libbey initially just wanted to blow smoke, but eventually he ended up wrapping the rope around his neck and gleefully jumping off the scaffold when he crossed over into outright lies. Happens to the best of 'em sometimes...

Although once in a while the grand jurors get so fed up sitting through such antics that one of them interrupts and asks such a witness direct questions like "why are you lying to us?" While not terribly elegant as a cross-examination technique, that tends to fluster most witnesses. The biggest challenge to the prosecutor when that happens may be to keep from laughing...
9.25.2008 2:41pm
Richard Aubrey (mail):
"believe it or not" huh? Give me a minute....

To be more precise, I was referring to testimony that might apply to the guilt or innocence of somebody else.
9.25.2008 2:50pm
zippypinhead:
I was referring to testimony that might apply to the guilt or innocence of somebody else.
And? Testimony can be exculpatory as to yourself ("I didn't do it") or a third party ("he didn't do it"). Either way, it's better to get the truth on the record. Hopefully that's not a terribly controversial thought.
9.25.2008 3:20pm
Oren:
Zippy, thanks for the response! If you don't mind, I'll waste your time with more followup questions:

On sensitive topics, a skilled examiner will return to the topic repeatedly, often approaching it from different angles and deeply probing small details, looking for inconsistencies.
Can't the witness object that the question has already been 'asked and answered'. He might raise the hackles of the prosecutor but for the purpose of this hypo, assume that our witness is squeaky clean and only trying to cover for some other party. The prosecutor can ask the question as many times as he wants for as many angles as he wants but the witness can respond to all of them by politely pointing out that he's already answered those question (or asking the stenographer to read the answer he gave previously).

The prosecutor has the right to ask questions but does he really have the right to ask the same question repeatedly until he gets the answer he wants?
9.25.2008 4:14pm
Oren:

Either way, it's better to get the truth on the record. Hopefully that's not a terribly controversial thought.

I've avoided getting into the normative side of the debate (since I'm just learning the objective aspects and having a hard enough time without concurrently defending my personal opinions on the matter) but certain things are none of the government's business and the best thing in these instances is to keep as much information out of their hands as possible.

IOW, I view my help to the gov't as conditioned on my personal judgment that the case in question is an appropriate use of government power and not just another case of official interference in the private lives of citizen for offenses that are malum prohibitum.

Like I said, that's my personal view which is provably contrary to the stated law (which perversely regards the content of my brain as property of the government as opposed to my own province to dispose of as I see fit -- that's the problem here).

Also, to be clear, I don't mean this as a personal attack on the officials that exercise this government power. Their job is manifestly necessary and the vast majority do a great public service by prosecuting bonafide criminals. The blame lies elsewhere.
9.25.2008 4:48pm
Richard Aubrey (mail):
zippy.
Ref third party evidence:
"You know the penalties for perjury, don't you?"
"Now, how would you like to reframe your answer?"
And then you get the answer you want.
If I'm not clear here, let me try again. What is the connection between known innocence and the possibility that you want an exculpatory answer? High? Low? Random? Depends?
Speaking of the instant case which consists of nineteen year olds, not other lawyers, or scientists, or adults.
9.25.2008 4:51pm
Richard Aubrey (mail):
zippy.
Further:
Most people in this country are not lawyers.
Therefore, far fewer people in this country see themselves strutting around like Jack McCoy than see themselves like the hapless White House Travel Office guys, or whatshisname in the Kafka story. Or the McMartin preschool case, or Amirault or the Duke laxers or....
9.25.2008 5:08pm
Oren:

"You know the penalties for perjury, don't you?"

"That's not relevant to your current line of inquiry."
9.25.2008 5:08pm
Richard Aubrey (mail):
Oren.

Nice, but you're an adult. Not a nineteen year old being quizzed about your roomie's political predilictions.

How about "I'm the prosecutor here [kid who's in danger of jail if you don't cooperate] and I'll decide what is the line of inquiry."
9.25.2008 5:52pm
Oren:
You underestimate me -- I was a seriously wiseass teenager.

Remember that the kid is not in danger of being sent to jail.
9.25.2008 7:49pm
Richard Aubrey (mail):
Oren. Of course he is, if he doesn't say what the prosecutor wants him to say.
Because the prosecutor has other evidence which contradicts what this kid says. One way or another, he's got a pocket full.

You will recall that one of the issues that brought Libby down was his difference from the FBI's interview of him which the FBI could not produce, but the agent had an idea of what had been said.

Whatever's necessary.
9.25.2008 10:11pm
Oren:

You will recall that one of the issues that brought Libby down was his difference from the FBI's interview of him which the FBI could not produce, but the agent had an idea of what had been said.

Never talk to the police. Ever. Even if you have nothing to hide.
9.25.2008 11:05pm
zippypinhead:
I go away for 24 hours (something about having a job, and all that...), and get to read several interesting responses... If only my kids paid as much attention to my random blatherings. On a couple points:
Can't the witness object that the question has already been 'asked and answered'. He might raise the hackles of the prosecutor but for the purpose of this hypo, assume that our witness is squeaky clean and only trying to cover for some other party. The prosecutor can ask the question as many times as he wants for as many angles as he wants but the witness can respond to all of them by politely pointing out that he's already answered those question.
"Asked and answered" is a civil deposition objection that really means "you're unreasonably wasting time." A skilled examiner who's looking for inconsistencies is much more subtle - probing a topic with different questions, from different directions, asking to "clarify" previous points, or whatever. And remember, a witness may end up before a grand jury for several separate sessions - and it's REALLY hard to keep your lies straight for an extended period of time.

As an aside, I am painfully familiar with lots of multiple witness appearances before the grand jury, such as the fellow who testified on 11 days over about 3 months before he was done telling everything he had to tell. And that witness, who was a small fish in an alleged criminal conspiracy, ultimately wasn't charged criminally but did get sanctioned heavily by a civil regulatory agency for his role in the conspiracy, including being fined an extra $2 million for "obstructive behavior" on top of his base civil penalty. Fortunately for him, his "obstructive behavior" occurred in pre-Sarbanes-Oxley days when shredding all your incriminating documents BEFORE you actually got a subpoena wasn't necessarily illegal.
You underestimate me -- I was a seriously wiseass teenager.
I prefer wiseass adults -- I especially love the ones who think they're waaaay smarter than me (didn't Sun Tzu say something about the benefits of getting your enemy to underestimate you?). Although unlike teenagers, you can't always threaten to tell their mom what they did...

In closing -- as Oren wryly noted above,
"the stated law...perversely regards the content of my brain as property of the government as opposed to my own province to dispose of as I see fit."
I like the way you think, Oren! So a subpoena ad testificatum is just a disguised motion for replevin! I believe it was the Duke of Argyle who first said to the House of Lords in 1742, "the public has the right to every man's evidence." See also U.S. v. Nixon, 418 U.S. 683, 709 (1974). Fortunately, I hear it's recently gotten easier: the NSA figured out how to penetrate even the best tinfoil hats to suck out the contents of your brain. Shhhhh! Whatever you do, don't let word of this get into that Intertubes thingie!
/sarcasm off>
9.26.2008 7:23pm
Oren:
Come on, I conceded quite readily that my opinion was contrary to settled law! That usually means that you don't need to drop quotes to prove I'm wrong, seeing as I already said as much. As to the actual normative point, I still don't see that you've made a case for why a man should have to support a prosecution that he disapproves of (Fugitive Slave Act, War on Drugs, whatever . . )

Could you please address the question of how much pressure can be put on a party that is innocent (not a small-fry conspirator, not someone looking for a downward departure, not someone investigated by a civil regulator agency -- someone that is squeaky clean)?
9.27.2008 3:27pm
Fred (mail):
A couple of thoughts. Martha Stewart went to jail and my understanding is that her stock market activities were not what she was convicted of but rather because of things she said to the investigators.

If any cop says to me "I promise that you won't go to jail if you tell me what you were doing/give up the contraband, etc.", I would automatically assume he was lying. They are allowed to do that after all.

I don't have a whole lot of faith in the good faith of any District Attorney or Federal Prosecutor. I assume that they are not at all interested in guilt or innocence but rather in making their conviction records look good. Their self interest would gravitate toward the guilty but if I happen to get caught up in their net and they think they can build up a good enough case I don't have any confidence that they will do the right thing.

Am I paranoid? Perhaps. But probably better to make those assumptions than to rely on the kindness of strangers.
9.27.2008 11:09pm