Chaos and Legitimacy

At BruCon 0x06, I was awoken from a nap to the sound of canons, and looked out my window to see soldiers marching through the streets. It turns out they were celebrating the 200th anniversary of the Treaty of Ghent. As I’m sure you’ll recall from history class Wikipedia, the Treaty of Ghent ended the war of 1812, and was the second war between Great Britain and the less Canadian parts of its North American colonies.

Treaty of Ghent Anniversary Celebration

Lately, I’ve been thinking a lot about that and what it tells us about Iraq, ISIS and more recently, Ferguson, and I want to write some of it down to see if it makes sense.

Much of our policy in Iraq and Afghanistan seems to operate on a model of history which goes something like this: after the revolutionary war, town meetings coalesced into the Constitution, and we all lived democratically ever after. It’s an ahistorical view that forgets the Articles of Confederation, the Whiskey Rebellion, Shays Rebellion, and what some in the American south still call “the War of Northern Aggression.” It takes time to develop the institutions of a functioning democratic society.

Is it any surprise that after years of dictatorships, torture of dissidents, children growing up under sanctions (in the case of Iraq), occupation, and civil war, the people of Iraq are not using democracy to solve their problems? That they fight over how to run their country?

While each has a unique history and set of circumstances, it appears to me that there is, across Afghanistan, Iraq, Syria, a crisis of legitimacy. The people who live in those areas have disagreements about not only who should lead them, or what policies should be in place, but about the process for selecting their leaders or governments, and the powers those governments should have.

Their disagreements are strong enough that many people are willing to take up arms rather than acquiesce to other visions. Our understanding of these disagreements is muddied by use of terms like “militia”, “the legitimate security forces” or “the so-called Islamic State.”

The Islamic State, with territory, an army, and a currency, is in many ways, no more or no less legitimate than the army and currency of Prince Assad of Syria. (He is a prince in all but name, having inherited power from his father, that literal inheritance of power being the defining feature of princes.) Assad has taken the step of staging a Potemkin village election, because he understands that legitimacy (rather than power) comes from the consent and agreement of the governed.

This is why Churchill said that democracy is the worst form of government, save all those others that have been tried. No one really thinks that asking a bunch of people who can’t be bothered to vote who should lead them is a great way to get the best people into government. But democracy is a unique way to give people a voice, and in that voice, get their consent. The form democracy, that everyone has a voice, is what gives it its legitimacy. Another way to say that is it’s the ballot or the bullet. (If you haven’t listened to Malcom X give that speech, it’s really an outstanding use of your time. Ballot or Bullet Part I, Ballot or Bullet Part II. In two parts from 100 American Speeches, not sure why it’s two-parted.)

Developing legitimacy requires both institutions and time. The institutions must show that they are reliably better than other choices, or people will pursue those other choices. When Federal grand juries return indictments in 162,000 out of 162,011 cases brought to them, it is reasonable to question if they are a worthwhile or trustworthy institution, or act simply as an instrument of power. From that same 538 Story, grand juries in Dallas reviewed 81 shootings by officers, and returns a single indictment. It is easy to think something is out of whack.

What I think I see in Ferguson is that the institutions of justice have failed, again and again. They didn’t just fail when Darren Wilson shot Michael Brown. Police officers can and will make bad decisions. But afterwards, they continued to fail. The medical examiner didn’t take photos because the battery in his camera died. The prosecutor led Darren Wilson’s testimony.
The institutions didn’t just failed in the moment, they couldn’t be made to work under an intense spotlight. The figures about grand jury indictments indicate that they system is failing victims of police violence. (Although Law Proffesor Paul Cassell makes a case that the grand jury did the right thing, and Wilson had a strong self-defense claim.) However, the institutions didn’t fail completely. A grand jury met, its activity was transcribed and the transcript was released. These elements of transparency allow us to judge the system, and find it wanting. But even while wanting, it’s better than judgement in the ‘court of public opinion,’ and its better than mob justice or lynchings.

These failures may lead reasonable people to ask what alternatives to violence exist? It may lead people to think that violence or destruction is their best option. Perhaps the democratic bargain as a whole is no longer sufficiently legitimate to the people protesting or even rioting in Ferguson. To be clear, I don’t think that the violence or property destruction will improve their lives. In fact I believe that violence and property destruction will make their lives worse. I also think that the people rioting, if they would sit down and talk it through might even agree that burning their own community won’t help. But they’re living in a system where things are more arrest warrants than people.

The chaos in Ferguson, like the chaos in Boston in 1776, like the chaos in Iraq, like the chaos in Syria, may be stopped, for a time, by more violence. But violence will not correct the underlying issues of legitimacy.

(There’s a whole related history of the use of offices to enrich office-holders, including the sale of military commissions, the sale of tax collection jobs, etc. I think that’s too complex for me to work into a single blog post. But briefly, the idea that positions were held as a public trust was an important development. We’ve lost it to the idea that because
officials will sometimes act in their own interest, we should only expect them to act that way. In no longer holding people to an ideal, we’re losing something.)

3D-printed guns and the crypto wars

So there’s a working set of plans for the “Liberator.” It’s a working firearm you can print on a 3d printer. You can no longer get the files from the authors, whose site states: “DEFCAD files are being removed from public access at the request of the US Department of Defense Trade Controls.
Until further notice, the United States government claims control of the information.” Cue Streisand Effect.

My understanding is that the censorship order was issued under the ITARs, the “International Traffic in Arms Regulations.” Cory Doctorow has said “Impact litigation — where good precedents overturn bad rules — is greatly assisted by good facts and good defendants. I would much rather the Internet-as-library question be ruled on in a less emotionally overheated realm than DIY guns.” I think that’s reasonable, but recall that Shaw claimed that all progress depends on the unreasonable man.

Doctorow also refers to Bernstein, who did good work, but his lawsuit was the last nail in ITARs applying to crypto, not the first. (ITARs still do apply to crypto, but in ways that allow both open source and commercial software to ship strong crypto, which wasn’t the case in the 90s.) Me, I see lots of evidence that gun control doesn’t work any better than alcohol control or marijuana control. And I think that the regulatory response by the DoD is silly. (One can argue that the law gives them no choice, but I don’t believe that to be the case.)

So the right step was demonstrated for crypto nearly 20 years ago by Phil Karn. He filed a pair of “Commodity Jurisdiction Requests.” One for Applied Cryptography, a book, and one for a floppy disk containing the source code.

The State Department ruled that even though the book itself is “in the public domain” and hence outside their jurisdiction, a floppy disk containing the exact same source code as printed in the book is a “munition” requiring a license to export. It’s old news that the US Government believes only Americans (and maybe a few Canadians) can write C code, but now they have apparently decided that foreigners can’t type either!

In the past three years I have taken my case to all three branches of the federal government. Here is the full case history in the Executive and Judicial branches, including all my correspondence with the US State Department, the Bureau of Export Administration (BXA) in the Commerce Department, the US District Court for the District of Columbia, and the Court of Appeals for the DC Circuit.

I believe the analogy is obvious. The DefCad files are 2mb zipped, and the STL files can be opened with a variety of software. Unfortunately, STL looks to be a binary format, and it’s not clear to me after a few minutes of searching if there’s a trivially printed text format. But that’s a very low hurdle.

As Doctorow implied, reasonableness on all sides would be nice to have. But at home printing isn’t going to go away, and censorship orders are not a productive step forward.

[Previously here: “What Should a Printer Print?“]

we mutually pledge to each other our Lives, our Fortunes and our sacred Honor

declaration-of-independence.jpg

In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us, in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

The signers of the Declaration represented the new states as follows:

New Hampshire

Josiah Bartlett, William Whipple, Matthew Thornton

Massachusetts

John Hancock, Samual Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island

Stephen Hopkins, William Ellery

Connecticut

Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York

William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey

Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Pennsylvania

Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Delaware

Caesar Rodney, George Read, Thomas McKean

Maryland

Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Virginia

George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina

William Hooper, Joseph Hewes, John Penn

South Carolina

Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Georgia

Button Gwinnett, Lyman Hall, George Walton

Image: Washington’s copy of the Declaration of Independence, from the Library of Congress.

Thoughts on this Independence Day

Emergent Chaos has a long tradition of posting the American Declaration of Independence here to celebrate the holiday. It’s a good document in many ways. It’s still moving, more than two centuries after it was written. It’s clearly written, and many people can learn from its structured approach to presenting a case. And last but not least, it’s a document celebrating that we all are created equal, with certain inalienable rights. That none of us is a king or a serf by accident of birth, with special rights by those circumstances.

And so today I’d like to talk a little about the extraordinary events in the Arab world over the last six months. When Muhammad Al Bouazizi set himself on fire, it was unlikely that he knew that his actions would set in motion events including the downfall of the Tunisian and Egyptian governments, a civil war in Lybia, and a revolt against King Assad in Syria. (Yes, I know that’s not his official title, but Presidents don’t inherit the title from their fathers.)

It’s easy to assert that these are American values rising up in the Arab world, or that Twitter or Facebook are somehow central. I don’t want to be so facile.

What is happening is that the Egyptians are struggling to force a new reality of law onto their current military government, with a release of protestors, and end to torture of prisoners and especially the sexual abuse of women prisoners. They are working to ensure that they have free and fair elections as soon as possible.

The Libyans are engaged in an all-out civil war. Colonel Khadafi, accused kleptocrat and now wanted war criminal, has lots of money, and repeated NATO attempts to kill him have failed. (I think these are legitimate attempts-he’s a military officer, and killing him as part of a military operation would be a legitimate act of war. If he had a reasonable separation and a military commander, then it would be assassination.)

The Syrians are engaged in an all-out revolt against their King, with little notice or support from the wider world. The same situation applied in Yemen, except their King claimed that title, and he’s now on life support in Saudi Arabia. As an aside, when the only place that will take you in doesn’t let women drive, you’re on the wrong side of history.

So for all this chaos, I’m optimistic for the Arab peoples. Their struggles to build socieities will be hard. They will have detours. Their first attempts to build societies after throwing off their Kings will be troublesome. Much like after we threw out the British, we had our Articles of Confederation, we had our whiskey and Shay’s rebellions, and we even had a civil war over issues that our founding fathers couldn’t hammer out themselves.

So I don’t expect what the Arab states are going through will be simple or easy. But I do know that tens of millions of people now have more say in their future than they did, and that’s a fine thing to celebrate this Independence Day.

A few thoughts on chaos in Tunisia

The people of Tunisia have long been living under an oppressive dictator who’s an ally of the US in our ‘war on terror.’ Yesterday, after substantial loss of life, street protests drove the dictator to abdicate. There’s lots of silly technologists claiming it was twitter. A slightly more nuanced comment is in “Sans URL” Others, particularly Jillian York, said “Not Twitter, Not WikiLeaks: A Human Revolution.” Ethan Zuckerman had insightful commentary including “What if Tunisia had a revolution, but nobody watched?” and “A reflection on Tunisia.”

That conversation is interesting and in full swing. What I want to ask about is the aftermath and the challenges that Tunisia faces. After 24 years of oppression, it’s going to be hard to build the political structures needed to create a legitimate and accepted government.

The American revolution came after years of discussion of British abuses of power. American perceptions of abuses of power like the Stamp Act combined with slow communication to the King and fast local communication to create a local political class that could assemble in a continental congress. Even so, after the American revolution, we had one entirely failed government under the Articles of Confederation, which was replaced with our current Constitution. But that was followed by the whiskey rebellion.

I bring this up because it’s easy to focus on the mechanics of government while forgetting about the soil in which it grows. Perhaps the digital world, with its ability to connect Tunisians to people living in places where we’ve worked these things out, will help. (For those foreigners who speak Arabic, or those Tunisians who speak other languages.) I’m not terribly optimistic in light of the shootings in Arizona and how quickly the online discourse devolved into “why this tragedy proves I’m right.” I’m also not optimistic given our poor understanding of our history.

I am, however, hopeful that the people of Tunisia will manage to take a collective break from the violence for long enough to work out a Tunisian approach to democracy. What would that look like? Would technology play a role?