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Several others have described their days as poll workers. Here’s my story of working at my own polling place in North Oakland, Alameda County. I arrived at my polling place at 6:00 A.M. and did not get home until 10:00 P.M.

The quick summary for those who tire of Brian’s long prose:

• The training of poll workers is inadequate.
• The voting machines face numerous security and technical problems.
• About 15% of my voters refused to vote on a machine without a paper trail.
• Most of those voters were also extremely angry that their only alternative to the machines was a “provisional paper ballot”. There were numerous heated arguments about the word ‘provisional’. People do not want a provisional paper ballot that may or may not be counted and that will not be counted right away. They want a “true paper ballot” that always counts and that is counted on election day.
• Absentee voters (and perhaps election officials) do not understand the rules for absentee voting.
• Being a poll worker is extremely stressful and exhausting and you should fall down and worship the poll workers at each and every election you vote in from now on.
• My view now is that the best election system is the simplest election system. In every single aspect of the election the paramount question should be: is there a simpler way to do this?

Prior to the Election
But the story actually begins a week prior to the election when I went to my three-hour training for first-time precinct inspectors and judges. (The names for poll workers in CA are odd. The poll worker in charge of a polling location is called the ‘inspector’. That was my job. The two other types of poll workers, whose assignments seem to me identical, are called ‘judge’ and ‘clerk’. There is also a program for high-school students to work as poll workers. They do everything the other poll workers do and are called ‘student’.)

The moral of the training story was that it was inadequate and revealed numerous security concerns about the machines. (I independently reached the same conclusion as Ed Felten, that it would be best not to publish such security problems until after they could no longer affect the election.) Here’s what I learned at training.

The Diebold Accuvote TS machines began being delivered to polling places in Alameda County two weeks prior to the election. The machines are cable-locked to a cart and the entire collection of machines is shrink-wrapped. This cable-lock is like a bike or computer lock with a rotating dial of numbers acting as the lock. The code for the cable-lock was extremely easy to guess, was the same for every polling place in Alameda County, and had been used in prior elections. This means that if one wanted to tamper with a machine and had access to a shrink-wrap machine in order to cover your tracks, you would have, in some cases,up to two weeks in which to tamper with the machines. These machines were delivered to schools, churches, and senior centers all over the county, and in my case, the cart of machines was simply right inside the main entrance, not in a locked closet or secure inner room.

Each machine was also secured by a single blue plastic cable-tie. (They sort of looked like this, but different.) I don’t recall learning that this would be the case in training, and had they not been there, or had there been a generic plastic tie, I doubt that the average poll inspector would have been concerned. If someone relocked the larger cable-ties and shrink-wrapped the cart up, I suspect those machines could go into service without any alarm.

The person leading the training also said a disturbing thing. She said that we should expect problems with the machines and that if one stopped responding or had a problem that usually the best way to fix the problem, as with most computer problems, was simply to turn the power to the machine off and then turn it back on. These machines run a version of Windows CE. Having had the misfortune to have used Windows machines in the past, I distinctly recall that about the worst thing to do to troubleshoot them was to simply power-cycle them. I’ve lost plenty of data that way before. Her confidence that there would be such problems was also not encouraging.

The scariest part of the training though was how much information there was to convey about both the pencil and paper procedural matters of running a polling place and learning the myriad of facts about the machines, combined with how little time was alloted to learning all of this information. I am a person who generally catches on pretty quickly when being taught new material, and I left that training truly baffled as to the exact extent of my duties on election day. One gentleman expressed this sentiment at the end of our training session by asking if there would be a “refresher” class before the election (which was only a week away). We were told we could come to an advanced/condensed version of the same class we had just had the next day. What people needed though, was not a faster run-through of the same material, but a slower one (or several slower ones!)

We were instructed to set up the machines the night before so that their internal batteries could charge overnight. They are supposed to arrive mostly charged, but in case of power outages on election day, they want the batteries at 100%. Only the student poll worker assigned to my polling place was able to assist me with set up on Monday. We spent about an hour arranging the room, unpacking the machines, and plugging them in. I turned on each machine to ensure that they would turn on and to be sure that they were charging. All five machines seemed fine, so I powered them off (they still charge while powered off) and used the blue plastic cable ties to close the machines. Again, the physical security of the machines overnight is only as safe as the polling place’s security generally. My polling place was fairly secure, with a code required to open the external doors, but I doubt every location is as secure. This provides another 12-hour window where someone could physically tamper with the machines and potentially go undetected.

As the inspector, I was also instructed to pick up various supplies several days before the election. Included in these supplies are the keys to the voting machines, the cards that are inserted into the machines, and the voter card encoders that programs the cards. Consequently, a corrupt inspector would also have a several-day window of early-access to the machines that might be undetectable.

Election Day
When I arrived at 6:00 A.M. and began setting up the machines, one of the five machines had a malfunctioning screen. It would not come on, and remained grayish-black as if the monitor connection was simply out. There was an obvious little green power light indicating that the rest of the machine was receiving power, but you can’t read choices off of a blank screen, so that machine was closed back up and I called the problem in to the County.

The polls opened at 7:00 A.M. and we were by far busiest from 7-9 A.M. It was not until after that busy period that a replacement machine was delivered. When it arrived and we printed “the zero report” that supposedly indicates that no votes have been cast on that machine, it printed out a report on every single race or proposition in the County, regardless of whether they were races or measures that voters at my polling place were eligible to vote on. Also, while all the other machines indicated the name and number of my polling place on their screens, the new machine read “Precinct Coordinator” instead.

I was never told in training that the cards that are inserted into the machines are polling-place specific and control which ballot a voter receives. Consequently, I believed that if I allowed voters to use the new replacement machine they would be asked to vote on dozens of measures they were not entitled to vote on. Besides being enormously time-consuming and confusing to voters, I worried this might invalidate their votes. That was not a risk I was willing to take, and so I called the County to describe the situation. The person I spoke with apparently did not understand my situation (or wanted to be cautious too) as they did not tell me that voters could use such a machine and receive the correct ballot (as we did later in the day). A former inspector for this location came in during this machine’s down time and she too did not know that we could use that machine in its current state. Instead the precinct coordinator came around a little later and explained that the cards controlled the ballot and so the new machine would not require voters to vote on dozens of out-of-area matters. We then began using that machine without incident.

These cards that are inserted into the machines are also programmed by a Voter Card Encoder (VCE). My polling place received two VCEs, one of which was in an envelope labeled “Emergency” and was not supposed to be used so long as the other one was available. Our original VCE stopped working a little over half-way through the day. We had been told that these VCEs operated on batteries and that their batteries could be drained by leaving a card in them unnecessarily. Consequently we were very careful not to leave a card in the VCE and while other poll workers operated the VCE most of the day, I watched them use it many times and I never saw us leave a card inside it. Nonetheless it stopped working. We used the Emergency VCE the rest of the polling day, and luckily it lasted through closing. Had it failed too, I am not sure how long it would have taken my precinct coordinator to arrive with another VCE. In the meantime our only recourse would have been to provide voters with “provisional paper ballots”.

Voters Want A Paper Trail
I don’t remember the exact numbers, but I believe about 314 people voted on the machines at my polling place and about 78 voted on provisional paper ballots. Most of those provisional paper ballots were voters who did not want to vote on machines without a paper trail and who requested a paper ballot instead. It was a common request all day long. Many voters would ask if the machines produced a receipt or paper trail and were very disappointed when told that they did not. Some would go ahead and vote anyway on the machines with an air of exasperation. This especially happened when voters were told that their only alternative to the machines was a “provisional paper ballot.”

There is nothing that pisses off a voter more than telling them their vote is “provisional.” That word was the subject of several heated discussions in my polling place. I found myself in the unlikely position of defending the absurd system that Alameda County adopted. The provisional ballot has a removable stub that the voter keeps (I was not told this in training and only figured it out along the way.) and the provisional envelope also has a removable stub that the voter keeps. The envelope stub contains a phone number that the voter can call to confirm that their vote has been counted, 28 days after the election.

That number, 28, also really pisses off voters. They do not want to be told that their vote MAY be counted 28 days from now. They want their vote counted and they want it counted today. I would try to explain that it would be counted so long as they did not also vote absentee or try to vote in other polling places, etc. but this never made them feel any better. Voters want a true paper ballot that is counted as soon as the polls close. (This sounds like a reasonable request to me, but it is not an option that was provided.)

Absentee Voting Issues
I also had two cases where an absentee voter from a county other than Alameda stopped by to drop off their absentee ballot. While we took numerous Alameda County absentee ballots all day, I was not sure we could accept another county’s absentee ballots, so I called Alameda County’s Registrar when the first such voter arrived. I was told that unless that absentee voter was registered in Alameda County, we could not accept another county’s absentee ballot and that if we did accept it, then it would not be counted or forwarded to the other county for counting. Instead, I was told that the voter’s only recourse was to immediately drive to their home county and deposit the absentee ballot at the first polling place they found in their own county. The voters from Yolo and Monterrey counties were not very excited about this idea and I doubt that either did this. Instead, they were simply disenfranchised for not understanding the rules surrounding absentee ballots. After my first such conversation with Alameda County Registrar’s office about this, someone from the Registrar’s office called me back to ask what I had been told to do. I described the advice I had been given (as I did above) and they confirmed that this was correct. I have since spoken to a friend who was registered absentee for San Diego County and he deposited his absentee ballot yesterday in an Alameda County polling place after a long series of phone calls with various agencies. They told him the exact opposite of what I was told and that he could deposit it and have it counted for all non-local State and Federal matters. So now, I have no idea what the correct advice was.

Conclusion
Overall, this was one of the most stressful and exhausting 16-hour days of my life. While entitled to two 1-hour breaks, I took no breaks at all, both because we were so busy and so that my other three poll workers could take their breaks. The importance of the enterprise weighs on you and the desire to move people through quickly and accurately preys on your mind. I cannot imagine that I would agree to do this again, despite how important I think it was that someone who has turned a computer on before was there to manage things.

I also learned that voting is a human enterprise subject to human frailties. I do not believe that the number of signatures we collected equaled exactly the number of computer votes cast (it was off by less than 5), nor did the total number of provisional ballots we received exactly match the number we had filled out, spoiled, or blank at the end of the evening. (This was also off by less than 5). It irritates me that I was not able to watch every single thing that each of my poll workers did and so I was not able to prevent every single mistake. (Do not get me wrong. They were hard-working, well-intentioned people who deserve our thanks.) We also ended up with about three provisional ballots that were not properly filled out on the front with a voter’s printed name and signature. I know that I told every voter to whom I gave a provisional ballot that they had to fill this out and that every provisional ballot I received back I double-checked for this information before placing it in the ballot box. I doubt that these blank ones will be counted and that makes me mad. Perhaps if the voter saved the stub and calls in to check on their vote’s status, they can be matched up and counted. But I doubt that the registrar receives many such calls.

This leads me to believe that the best voting system is the simplest system. It is so difficult to avoid errors and mistakes, to train volunteer poll workers, to get voters to follow instructions, and so on, that every single aspect of the voting process should be examined with the paramount goal of simplification at every single stage. I don’t know what the result of a careful study of voting with such a simplification-goal would be. I suspect that it would not involve any sort of touchscreen machine, because the steps necessary to ensure the security and verifiability of such machines are anything but simple.

The best argument for touchscreen voting machines is their ability to better serve voters with disabilities and to allow those with disabilities to vote privately when they might otherwise require assistance. However, I did not have a single disabled voter request to use the headphones or keypad on our machine with these features. Fewer than five voters requested the magnified ballot, and the one blind voter we had wanted to receive assistance from his son rather than use the headphones. (I make no claims about how representative my location might or might not be.) So, it seems to me that a simple paper ballot with ovals filled in with pen or pencil might be the best and simplest system available. Braille and magnified paper ballots are possible. And even for those with vision problems who do not know Braille, a textured paper ballot could be devised that would allow such voters to vote unassisted by anything but a pre-recorded audio tape. A paper ballot could also be designed with larger boxes for those with fine motor skills disabilities.

However, I used to use optical-scan machines when teaching in Southern California. The machines I used had a rate of error that is unacceptable for an election. (Perhaps better machines exist.) I think election work might need to be like jury duty and when the polls close, an army of willing and unwilling vote-counters should descend on the ballots for a manual count. I don’t care if I don’t know the results until some time the next day. The inauguration isn’t until January, anyway.

Someone just told this baby about the $7.4 trillion dollar deficit that Bush has created, after being handed a record surplus.

Yeah, baby. You’ll be paying for that.

That is, if your job isn’t outsourced before you even get it.

May I suggest: www.johnkerry.com

At the newvotersproject, those under-35 can submit a question for Bush and Kerry. The best 12 will be selected and the candidates have agreed to answer them. Below is my question, although when I actually submitted it I had to edit it down to just 500 characters. I subsequently complained on their site that a serious political debate requires questions consisting of more than 500 characters.

Do you believe that every human being, regardless of citizenship, has the right not to be imprisoned unless provided prompt access to a fair system of justice in which they are made aware of the charges and evidence against them, provided opportunity to rebut that evidence and to introduce their own evidence, given access to legal counsel regardless of ability to pay, and presumed innocent until proven guilty beyond a reasonable doubt?

If not, why not? If so, please explain how to reconcile both Guantanamo and the continuing imprisonment of non-citizens in this country with such a belief.

It seems to me that this is a simple question that, while not a popular campaign issue, ought to dramatically illustrate how unprincipled the Bush administration is and how far we have been driven from what (I thought) were true American values.

Thad Anderson of outragedmoderates.org is outraged at how the Bush Administration is trashing true American values. He’s set up his site to share government documents that reveal the misdeeds of the current American regime.

He also is providing the documents through peer-to-peer (p2p) networks more famously known for sharing music files. Ernest Miller, who is usually dead-right about most anything he writes on, criticizes Anderson for his use of p2p.

Miller’s complaint is basically that in this instance, since Anderson could just host all the documents on his site directly, using a p2p network makes no sense, and just adds an unnecessary layer of complexity. Miller goes so far as to say, “There are legitimate uses and needs for P2P. Particular functions where it makes sense. This isn’t one of them.” I think he’s dead wrong about that. Here’s why:

What follows is an e-mail I just sent to Anderson of outragedmoderates.org.

[Intro snipped]

Your idea to provide government documents via p2p networks is a good one, and one I have thought about myself. I have a suggestion for you.

If a project such as yours were to remain on a small-scale, then the use of a p2p network would just be a gimmick, for you could host versions of all the documents on your site, and people would not generally have doubts about their authenticity. There would be no need, in such a case, for introducing a p2p distribution system, because it also introduces the questions about document veracity that you address by suggesting people search for your username on the p2p networks.

But, in a large scale government documents project, the bandwidth and hosting space necessary for an enormous amount of government documents becomes more than any single individual, who’s only spent $220, can bear. This is where a p2p distribution mechanism would make an enormous difference. It would allow others to share your load. The problem, in such a case, to solve then, is the problem that end users have of verifying the veracity of the documents.

Fortunately, this is easily solved. Alongside each document that you list on your site, you should publish the md5sum “hash” or “fingerprint” of that file. This number can be generated by the md5sum program, which is available for every major operating system.

For instance, I downloaded the first document linked on your site, Halliburton Contract ‘coordinated w VP’s office’ Email which came in at 39,454 bytes and produced an md5sum fingerprint of: d22b6c8827d6a8437beab1bb66da03ef

You can check this yourself. To run md5sum on Windows, get to a dos prompt and just type ‘md5sum filename’ without the quotes and replacing ‘filename’ with the actual filename, 030503.pdf in this case. In Linux or Mac OS X, you use the same command from any shell/terminal prompt.

If you acted as a central repository of the md5 hashes of each file that you seed into the p2p network, then when you host a document on the p2p networks, the first wave of downloaders will get it from you, check the hash on your site against what md5sum tells them, and then they in turn can host verified copies of the documents on the p2p network, and the next person who comes along can get the file from either of you, check the hash against your site, and also know that the file remains unchanged. You just reduced your bandwidth needs and gained an army of helpers.

Also, by monitoring the p2p networks for verified copies of the files, you could at some point even stop “sharing” them yourself as plenty of other good versions would be out there.

Hopefully this makes sense. Feel free to lift from my explanations above if you decide to adopt this suggestion and want to explain it on your site. In any event, your up to something good! Keep it up.

So, the reason I say Miller is wrong to criticize this idea is that there are lots and lots of government documents and lots and lots of people who might want to download them. Asking one individual to host all those on a single web site is asking them to have a bandwidth-deathwish.

Instead, there is a valuable service someone could provide, perhaps outragedmoderates.org, of being a central repository of all the md5sum hashes for such documents. Then we only have to trust a single site not to alter the documents before creating the hash. After reading his “About Us” page, I think I trust Thad. I hope he, or someone, will adopt this suggestion.

This story from the Boston Globe reports on the tactics used by the Bush administration to pressure House Republicans to change their votes, once it was clear that they were ready to restore your privacy in public libraries by amending one of the most offensive provisions of the misnamed PATRIOT Act.

The amendment seemed to pass, 213-206, as the 15-minute voting time expired. But, the time for voting was extended and Republican House members were told that terrorists had recently used public library computers. It worked. Our representatives were pressured and scared into changing their votes, swinging the margin back and keeping this provision of the Patriot Act intact, 210-210. (If you’ll notice, 419 members voted on time and only one additional member voted in the additional 23 minutes provided. So, it’s just false to claim, as Rep. Hastert did, that “the roll call was extended only to give more time to members who had not cast their votes.” Bull.

But here’s the real problem: This was “…an amendment that would have required law enforcement to go to a regular court — instead of a secret court — to get permission to demand library and Internet access records of people it is investigating.”

So even if the Justice Dept.’s pressure tactic is true and “…as recently as this past winter and spring, a member of a terrorist group affiliated with Al Qaeda used Internet services provided by a public library. . . to communicate with his confederates.” all this amendment was doing was requiring law enforcement officers to go to a regular court to get their warrants so that Congress and the public can monitor the number of such warrants requested and ensure that our government doesn’t go overboard and start spying on the library habits of innocent citizens. When they go to secret courts, we never find out about it. Nothing in this amendment would prevent law enforcement from doing their jobs when they actually have probable cause to monitor the activities of a suspected terrorist. This is a shameful day for the U.S. House.

Civil liberties for ordinary Americans: 0
Overbroad secretive powers for the FBI: 1

(If only the score were that close…)

Update:The Washington Post also has a good story on this and the Seattle Post-Intelligencer reports that “Democrats identified eight Republicans who switched their votes: Michael Bilirakis of Florida, Rob Bishop of Utah, Thomas Davis of Virginia, Jack Kingston of Georgia, Marilyn Musgrave of Colorado, Nick Smith of Michigan, Tom Tancredo of Colorado, and Zach Wamp of Tennessee.

One Democrat, Brad Sherman of California, also switched his vote to nay, officials said. In all, 18 Republicans joined Democrats in supporting the measure, while four Democrats crossed party lines to oppose it.”

The story in Paul Krugman’s latest column should be headlining every news outlet you could possibly read, watch, or listen to today. Strangely, I’m not hearing much about it. So, I feel compelled to talk about it.

As a white guy, I’m allowed to say this: White guys are the problem. Who was responsible for the Oklahoma City bombing? A white guy. Who went on a shooting spree in a Jewish Community Center in Los Angeles and killed a U.S. Postal worker? A white guy. Who bombed the 1996 Olympics, a nightclub in Atlanta, and a Women’s Clinic in Birmingham? A white guy. Who was the unabomber? A white guy. Who killed 16 children and their teacher at a school in Scotland? A white guy. Or in Columbine Colorado? Two white guys. It’s not often someone is crazy enough to take a shot at a U.S. President, but who shot Lincoln, Kennedy, and Reagan? Three white guys. Quick! Think of four notorious serial killers! First to come to mind for me were these four white guys (Berkowitz, Bundy, Dahmer, De Salvo, Gacy, Manson all good answers).

And now we learn that yet another white guy in Noonday, Texas had “a weapons cache containing fully automatic machine guns, remote-controlled explosive devices disguised as briefcases, 60 pipe bombs and a chemical weapon — a cyanide bomb — big enough to kill everyone in a 30,000-square-foot building.” But you didn’t hear about this terrorist because he doesn’t fit the profile that General Ashcroft wants you to fear.

While actually dangerous individuals like this white guy are ignored, the Ashcroft Justice Department spends all its efforts questioning and detaining anyone with an Arab name or brown skin.

9/11 was an anomaly as far as terrorism in the United States goes. When we realize that, we might also realize that we should not allow 9/11 to change anything about our fundamental values. America has long been committed to individual freedom and privacy, to due process rights, to that nutty innocent-until-proven-guilty thing, ostensibly to the notion that we don’t start wars, but most certainly to the idea that it is wrong to torture people. We shouldn’t give these things up. 9/11 changed nothing about the importance of these principles. But neither the Ashcroft Justice Department nor the Bush administration in general, understands this. We need people in these positions of power that are committed to true American values.

Some background first, then some analysis:

On Friday, May 21, 2004 many Boalt students received a message like this:

Dear fellow Boalt students and alums:

By now, many of you have heard about the role Boalt Professor John Yoo played as part of the Bush Administration to pave the way for the egregious violations of international law we are seeing committed by US troops today in Iraq (see MSNBC or The NY Times).

A group of us graduating 3Ls decided that we could not stand by without speaking our outrage about Professor Yoo’s actions as Deputy Assistant Attorney General under Bush. We’ve articulated that outrage in the attached petition and invite you now, as fellow students of any year and alumni, to join us.

If you are so inclined, please sign the petition at http://www.PetitionOnline.com/bh2004/petition.html before graduation on Saturday. Shortly thereafter we aim to present our perspective to Professor Yoo and the Boalt Administration.

Thanks for considering joining us. If you have comments or ideas, please send them to yoorepudiate at yahoo.com

The email was signed by eight current or graduating Boalt students who organized the effort. In case the news articles disappear, they mention a memo written by Boalt Professor John Yoo while he worked for the Office of Legal Counsel. The Newsweek article revealed that:

…on Jan. 9, 2002, John Yoo of Justice’s Office of Legal Counsel coauthored a sweeping 42-page memo concluding that neither the Geneva Conventions nor any of the laws of war applied to the conflict in Afghanistan.

Cut out of the process, as usual, was Colin Powell’s State Department. So were military lawyers for the uniformed services. When State Department lawyers first saw the Yoo memo, “we were horrified,” said one. As State saw it, the Justice position would place the United States outside the orbit of international treaties it had championed for years. Two days after the Yoo memo circulated, the State Department’s chief legal adviser, William Howard Taft IV, fired a memo to Yoo calling his analysis “seriously flawed.” State’s most immediate concern was the unilateral conclusion that all captured Taliban were not covered by the Geneva Conventions. “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions,” Taft wrote. “I have no doubt we can do so here, where a relative handful of persons is involved.”

I have tried in vain to find a copy of the memo itself. If anyone can find the memo, please post a link here.

The petition read:

To: Boalt Administration and Prof. John Yoo

We, the undersigned students, graduates and alumni of the Boalt Hall School of Law, put forth this petition to express our outrage at certain actions taken by Boalt Prof. John Yoo during his tenure as Deputy Assistant Attorney General for the Office of Legal Counsel.

According to a recent report in Newsweek Magazine entitled “The Roots of Torture”, Prof. Yoo authored a memorandum in January, 2002 advising the Bush Administration that the protections of the Geneva Conventions would not apply to prisoners held by the United States in its execution of the war in Afghanistan. While Secretary of State Colin Powell and lawyers for the State Department vigorously sought to repudiate Prof. Yoo’s flawed legal analysis, subsequent actions taken by the Bush Administration and the military demonstrate that our government has taken Prof. Yoo’s advice to heart.

We believe that the actions taken by Prof. Yoo contributed directly to the reprehensible violations of human rights recently witnessed in Iraq and elsewhere. By seeking to exploit and magnify any technical ambiguities in the Geneva Conventions and the laws of war, Prof. Yoo and the Bush Administration have created a climate of disdain and hostility towards international law, effectively opening the door to the acts of outright torture, rape and murder that we now know were committed by United States soldiers and civilian interrogators. Such abuses, if not explicitly ordered by the Administration or military commanders, were at the very least a foreseeable consequence of crippling the protections of the Geneva Conventions in the context of the “war on terror”.

The terrible consequences of these policies have now demonstrated their folly. The standing of the United States has suffered serious, lasting damage in the eyes of the world, while groups such as Al Qaeda have been strengthened and encouraged. As a result, the Bush Administration’s contempt for international law in numerous contexts has severely hindered our efforts to fight terror.

We therefore call on Prof. Yoo:

1) To follow the example of Boalt Hall’s finest alumnus, Chief Justice Earl Warren, by his expression of deep regret for supporting the internment of Japanese Americans during World War II;

2) To publicly and unequivocally repudiate his official governmental position with regards to the application of the Geneva Conventions as applied to prisoners captured by the United States anywhere in the world;

3) To use his influence with the Bush Administration to encourage United States compliance with the Geneva Conventions in all its military endeavors; and

4) To reject as immoral the use of interrogation techniques involving serious physical and psychological coercion, regardless of whether he believes they may or may not be technically defined as “torture” under existing laws.

Should Prof. Yoo refuse to take these actions, we would then call on him to resign as a faculty member of the Boalt School of Law.

We emphasize that this petition does not constitute an attack on academic freedom, as we fervently believe in a free and open discussion of ideas; rather, our position is a response to those governmental actions taken by Prof. Yoo in his official capacity as Deputy Assistant Attorney General that have caused severe damage to this nation, and the world.

Sincerely,

It was signed by many current students and alumni. As of May 29, the total was 295 signatures.

Then at graduation, some 3Ls participated in a silent protest by wearing red arm bands over their gowns. This action received news coverage before graduation at The Oakland Tribune and afterwards in an AP story.

Then, a week after the first message, on Friday May 28, a number of students received the following email:

Fellow Boalties,

We are a group of students that are becoming concerned with the growing anti-free speech climate at Boalt Hall. In response to calls for faculty resignation and looming speech codes, we have drafted a petition to send an unequivocal message to the Boalt Administration that the student body demands that free speech and academic liberty be protected.

We understand that most of you strongly disagree with the opinions expressed by these faculty members, but we urge you to sign the petition, not as an affirmation of the challenged beliefs, but as a display of your commitment to free speech rights. Any feelings you have as to the content of the speech may be addressed in the “comments” section of the petition. This space is provided so that you do not feel bound by the language of the petition, please express yourself.

http://www.petitiononline.com/boaltfs/petition.html

Most importantly, forward this on to people you think would be interested.

Many Thanks
The Concerned Boalt Students Coalition
concernedboaltstudents at yahoo.com

The counter-petition read:

To: Interim Dean Robert Berring, Assistant Dean Victoria Ortiz, and Dean Christopher Edley

Petition in Defense of Academic Liberty, Free Speech, and Open Discourse at Boalt Hall School of Law

We, the undersigned students and alumni of the Boalt Hall School of Law, put forth this petition to express our concern about the growing threat to academic liberty and free speech at our institution.

In April of this year, interim Dean Robert C. Berring responded to a student complaint that alleged racially insensitive comments had been made by a guest lecturer during a role-play exercise. Dean Berring’s solution to this incident was the proposed drafting of a speech code for Boalt faculty, which would outline what language or subjects were permissible, in effect issuing a prior restraint on professors’ speech. Still more troubling was Berring’s stated plan to resolve the “personnel issues involved;” this comment seems to suggest reprisal against the non-tenured faculty member that had invited the guest lecturer.

More recently, a group of Boalt students has called for Professor John C. Yoo to repudiate a January 2002 memorandum, written while he was a Deputy Attorney General for the Office of Legal Counsel. In this memorandum, Professor Yoo analyzed the legal status of non-state enemy combatants, namely Taliban and al-Qaeda operatives, and proposed that said combatants were not protected by the Geneva Convention. This group of students has called for Professor Yoo’s resignation as a professor of law if he does not repudiate his past findings.

Regardless of the merit or veracity of the above viewpoints, the undersigned are unanimous in the belief that unfettered dialogue should be the paramount concern of any academic institution. The proposed retaliatory measures, if realized, would undo decades of free speech tradition at U.C. Berkeley, which has been a haven for both mass movements and the exposition of unpopular opinions. As such, we fully support the right of those students to engage in protest and to petition, but we reject the imposition of speech codes and retaliatory hiring and retention practices.

The enterprise of law school is a laboratory in which opinions and beliefs are ushered into our great marketplace of ideas. History and public consensus are free to reject any of these espoused views, but such a determination can only come about through free and open discourse.

We therefore make the following resolution:

1) We, the undersigned, reject the May 21st petition which called for Professor Yoo’s resignation, and condemn any attempt to implement a new speech code or the enforcement of any preexisting speech code.

2) We, the undersigned, reaffirm our abiding belief in the right of free speech and academic freedom.

3) We, the undersigned, demand that the Boalt Administration reaffirm its commitment to academic liberty and free speech, and formally recognize these rights as inviolable.

We, the undersigned, make this resolution, and do so without expressing approval for any of the viewpoints at issue.

Sincerely,

A day later it had 116 signatures.

I have not signed either petition. This is primarily because I think both make excellent points and both fail to appreciate all the relevant points the other side makes. I also think the entire debate would proceed better if all involved had read the memo. As I said, I have not read it because I cannot find a copy. On the other hand, the key concerns I have with the petitions might not be resolved by the memo’s content itself. Here’s why.

The memo could, from a legal standpoint, be well-argued or not. If it is a total sham piece intended only to support a convenient course of action for the Bush administration, then it should be condemned and might be so irresponsible as to represent something that we would not want from any Boalt faculty member. I doubt that its arguments are that bad.

However, even if it is well-argued from a legal standpoint, one only needs to hear the conclusion to rightly say that it is certainly short-sighted. A large purpose of the Geneva convention is self-protection. We agree to treat prisoners humanely, in part, because we want our own soldiers to be treated humanely when they become prisoners. So, good legal distinctions or not, the obvious consequence of deciding not to treat some prisoners according to the guidelines of the Geneva Convention is that others, be they nations or rogue groups, will be more likely to find their own legal distinctions to justify treating our soldiers and citizens inhumanely as well. This is an ill-advised path to follow. I am not sure it rises to the level of calling on a faculty member to resign.

But another motivation for the Geneva convention is a simple appreciation of human dignity. Again, one need only hear the conclusion of the memo to rightly say that it seems to fail to adequately appreciate the importance of treating all people with respect. This is a core value of American society and Common Law legal systems. Suppose you had an accused criminal that was guilty beyond any shadow of a doubt. Why do we provide this person with all the same legal protections of the innocent? (Think on that.) I believe one big reason is a simple appreciation of human dignity. We say to the guilty person, “We so respect human dignity, that we will provide you with all the protections of our legal system. We value human dignity too much to do otherwise.” There are other reasons for this practice as well.

The issue here also goes beyond legal due process concerns to the justification of torture. Ethicists debate whether the information a terrorist might reveal could ever justify torture. I do not know of any who believe it can be justified except in the narrowest of dire circumstances. Human dignity again demands such practices be abhorred. But the question here becomes, does a law professor’s failure to agree with or appreciate the value our legal system places on due process rights and the values of human dignity in these contexts rise to the level of requiring his resignation? I think that’s a tough question about which reasonable people could disagree. Here, in particular, the actual text of the memo might be crucial.

Those who called for resignation make a distinction between Yoo’s public policy work for Government with his academic endeavors. They call for his resignation, not because of anything he said in a classroom or as part of his academic work, but because of his actions while in Government. This distinction is supposed to support the notion that one can call for his resignation while supporting his academic freedom. I believe this distinction fails. You inevitably implicate academic freedom when you suggest resignation as the solution for extra-academic speech. Call on him to repudiate his views, call on him to rethink them, call on him to better justify them, but resignation from an academic post seems an inappropriate solution.

I doubt one could find a more staunch defender of academic freedom than I. I agree that “unfettered dialogue should be the paramount concern of any academic institution.” But I also am willing to be persuaded that some actions in some contexts can be so irresponsible as to not represent the good judgment we expect of our faculty. A friend recently reminded me that those in the Nazi government likely wrote many memos supporting their actions, and might protest they were just doing their jobs or that they had good legal distinctions on which to base their positions. But there comes a point when the fascists have taken power that you have to stand up for what is right and doing otherwise is immoral and irresponsible. Does the present situation go this far? I’m not sure.

I do believe that there is probably nothing the Bush administration has done that is more misguided or more dangerous than its treatment of those it detains. From the Arab “material witnesses” detained after 9/11 for months on end to Guantanamo to Padilla and Hamdi to Abu Ghraib, the administration’s view that it can presume guilt, fail to provide counsel, not bring charges, etc. is frightening and contrary to true American values. An argument could be made that supporting such a sweeping reversal of important civil liberties is so irresponsible that it has no place among Boalt’s faculty. I have yet to see that argument made convincingly though. I think it is difficult for anyone truly committed to academic freedom. (I would also revise the above to say that the administration’s policy of pre-emptive war is probably more dangerous and frightening.)

So, without further information, I think those who call for resignation may be unjustified in thinking there is a relevant distinction that justifies calling on a faculty member to resign for their work in government policy-making. Any call for resignation implicates academic freedom. But I also think the staunch defenders of academic freedom have to ask themselves tough questions about its limits. Let’s have a look at the memo. Let’s think about the consequences of the policies of this administration. Let’s think about the values that support our commitment to due process rights and the rights of prisoners to humane treatment, free from coercion. A careful articulation of those values and their place in the present context might lead us to believe that those who fail to appreciate these values are miserable failures as faculty members at a law school.

Yoo is quoted in the AP article above as saying, “I’m happy to listen to their viewpoints. Beyond that I’m not going to change what I think.” I hope this represents an offer to be persuaded by reasoned argumentation. If so, more effort should be expended on carefully explaining why Yoo’s current view is unsound. He says he’ll listen and he might even be persuaded. If on the other hand, his declaration that he’s not going to change what he thinks represents an unwillingness to even entertain the possibility that an alternative viewpoint could persuade him to change his mind, then that attitude would truly be one worthy of requiring his resignation.

I also posted this in an online forum for Boalt students.

This bizarre statement appears at whitehouse.gov:

We have captured almost two-thirds of the known Al-Qaida leaders, including the mastermind of the September 11 attacks.

Who is this mastermind of the September 11 attacks that has already been captured? I thought the mastermind was Osama bin Laden, and that only conspiracy theorists believed he had already been captured and that Bush was just waiting to reveal this once the election draws nearer. Is this another pre-emptive blunder?

Or are they seriously claiming that Saddam Hussein, who has been captured, was the mastermind behind 9/11? No wonder so many Americans are misinformed about the total lack of connection between Iraq and 9/11.

Perhaps they mean Zacarias Moussaoui, who also is in custody, and is believed to be the “20th hijacker” that never made it on board. But this makes no sense either, as I have never heard it reported that he was a “mastermind.” If anyone within the nineteen hijackers has been touted as a “mastermind” it was Mohammed Atta, but he hasn’t been captured, since he died with the other hijackers on 9/11.

Only Google can solve this riddle. I typed in: mastermind behind 9/11 and guess what I found? The very first link is entitled: Bush-The Mastermind behind 9/11.

But then the next two links mention Khalid Shaikh Mohammed as a possible mastermind. (Remember him? He’s the one whose photo defines “sleeper cell”.) Then in the next link Ayman al-Zawahri is listed as a possible mastermind. The next link agrees with my first impression, listing Osama bin Laden as the mastermind. But best of all is link number seven, Barbara Bush was the mastermind behind the 9/11 attacks.

Anyway, perhaps Sleepy Khalid was the mastermind, but it seems to me that this remains to be shown. Let’s put him on trial and establish such a fact before we vaguely tout it on a government website in a misleading way. Where is Khalid anyway? Nobody knows. He was a high-profile capture that made lots of news (over a year ago) and I’d bet not even reporters that follow this could tell you where we are holding him today. If that’s the case for the high-profile captures, how many more nobodys have we got stored away somewhere, being tortured, or just holding them indefinitely without charges? This is not America. (Be sure to read that next-to-last link on the torture of Iraqi prisoners by the U.S. Military. Seymour Hersh has once again produced an amazing piece of journalism for the New Yorker.)

Don’t get me wrong. I’m not defending the alleged actions of these guys. I just happen to actually believe in all that “rule of law” mumbo-jumbo that we toss around so casually. I believe that citizen or not, the simple dignity of human beings requires us not to torture prisoners, to charge prisoners with crimes for which we have sufficient evidence, to provide such individuals with adequate legal counsel, and to afford such individuals a fair trial. Instead, the Bush administration has us torturing prisoners, holding people indefinitely without charges, refusing to provide captives with adequate legal counsel, and offering no trials or sham justice they call “military tribunals.” This is not likely to be a topic that would win hearts and minds in an election race, but I believe one of the best reasons to get rid of Bush in November is because we might be able to make some headway on these fundamental principles that are supposed to make our country great.

Update: It looks like the BBC and some international aid agencies have gotten worried about the locations of some of these people too. (New strategy for home readers: read Share Alike, and 19 days later, it’ll be covered by the BBC too!)

blackboxvoting.org is a web site devoted to raising awareness about the security problems and unverifiability issues inherent in paperless electronic voting machines. The operator of the site, Bev Harris, has been contacted by the Secret Service. “They want the logs of my web site with all the forum messages, and the IP addresses. That’s right. All of them. A giant fishing expedition for every communication of everyone interested in the voting issue.”

If the Secret Service is engaged in a legitimate investigation of a crime, then I am sure that they can come up with a narrower request that targets information that could reasonably be related to the evidence they seek.

If they instead insist on wielding the power of the Patriot Act to execute this overbroad search, then it is hard not to think that their “investigation” is purely a pretextual means of gathering information about all those interested in guaranteeing free, fair, and democratic elections. Very scary.

From the New York Times:

If the election were held today, 46 percent of registered voters would vote for Mr. Kerry and 44 percent for Mr. Bush, the poll found. With Mr. Nader in the race, Mr. Bush would get 43 percent, Mr. Kerry 41 percent and Mr. Nader 5 percent, suggesting that nearly all of Mr. Nader’s support comes from voters who would otherwise back the Democrat.

Arianna Huffington, at Boalt yesterday, told us what she says to her Green Party and Independent friends, “You don’t discuss remodelling, when your house is on fire.”

The folks who tried to petition Ralph not to run have updated their flash movie to try to swing Ralph’s supporters back to sanity, since Ralph himself wouldn’t listen. Check out the flash. It’s very well done.

The only other hope that I can see is Huffington’s idea to stop focusing narrowly and solely on “the swing vote” and to instead go after the fifty million eligible voters that don’t typically vote. After the 2000 debacle, it should be easier to convince them that their vote can matter. Four more years of Bush would leave this country and this world unrecognizable to someone from November 1, 2000. Something has to be done.