L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 56, September 30, 1999
by Victor Milán
Exclusive to TLE
Am I the only one to wonder about the use of increasingly abstruse
"scientific" evidence in criminal trials?
Example: DNA samples. What, precisely, prevents prosecutors from
simply printing out graphics and columns of figures that support
their contention? If they are trying to "prove" that DNA samples
taken from a crime scene match sequences from their suspect, what's
to prevent them simply showing two copies of the same slide, side by
side? Could you tell the difference? To accomplish it wouldn't even
entail much of a "conspiracy:" one person along the chain of evidence
could effect the switch, and it would be hard to trace in the face of
the automatic/reflex government stonewall.
Sure, the defense is free to spend all the money on Earth on its own
DNA tests. But to get on a jury, especially a fed jury, you have to
convince the judge and prosecuting attorney beyond a reasonable doubt
that you're a hole-eyed Ritalin zombie who will repeat: "The
government is always right. Truth is what the government says,"
Perhaps the above scenario is unlikely. Perhaps.
Now consider the latest flap over encryption of computer
communications. The nation's confessed top serial murderer, Janet
Reno, and fanatic religious cultist Louis Freeh, have led a furious
jihad against any and all forms of privacy: to them, any
attempt to deny the government access to every facet of your life
constitutes "privacy gone crazy" as one of their Congressional sock
monkeys like Barbara Boxer or Orrin Hatch called a recent (and
failed) attempt to return a modicum of confidentiality to our bank
transactions. Current export restrictions state that no American
company can sell crypto software abroad unless it's got a backdoor.
Foreigners can be pretty stupid - the Brits' surrender of their
firearms, thereby putting themselves utterly at the mercy of Heinrich
Himmler avatar Jack Straw comes to mind - but they're not dumb enough
to trust the US government not to spy on them and steal them blind.
(Hmm. So, who's stupid?)
Now, suddenly, the government is agreeing to relax those
restrictions. That's a surprise: this is hands-down the most fascist
administration in American history. "Liberal" Bill Clinton has
transformed America into a police state in which anybody with a badge
can do anything, anytime, to anybody who lacks one - even break into
their houses and shoot them in the back with no comebacks. The only
freedom Bill Clinton will ever permit to increase is the freedom of
politicians and their armed myrmidons to plunder, rape, and
So why the turnaround?
WIRED News ("Decoding the Crypto Policy Change" by Declan McCullagh
flips us a big clue: "Another answer might lie in a little-noticed section of
the legislation the White House has sent to Congress. It says that
during civil cases or criminal prosecutions, the Feds can use
decrypted evidence in court without revealing how they descrambled
It goes without saying the Republicans will pass this one: if Slick
introduced a bill banning the GOP two-thirds of Republicans would
roll over like roaches (and it might soon come to that, since the
permanent government has to realize the GOP can no longer effectively
pretend to be an "opposition" party).
If you're awake, I shouldn't have to spell out to you why allowing
the government to introduce evidence without even pretending to
account for its provenance is a horrific idea. But here's a twist
you might not think about.
Evidence such as DNA matching is functionally "sourceless," since
even if you were provided complete documentation on it, you still
couldn't understand it: unless you're already an expert, you have no
common-sense way to judge whether it's valid or not.
Allowing the government to introduce evidence without accounting for
it at all goes light-years beyond the incomprehensibly
esoteric: it gives the government carte blanche to just frame you.
They can hang anything on you.
A government spy could sign up for Hotmail, say, using your name,
send messages in which "you" describe plans to blow up Tipper Gore or
give away crack rocks instead of candy on Halloween, and then
introduce printouts of those messages into court as evidence.
Remember: if this law passes, the government doesn't have to say
where it comes from or how it got it.
But wait. There's more. Consider: why go to all the trouble of making
up loaded questions and handpicking your respondents to produce
desired poll results, when you can simply make up flamboyantly
manifest bullshit such as "70% of Americans support more gun
control," and the collaborator media will report your lies as Gospel?
Likewise, why tax the abilities of some ATF operator who isn't smart
enough to learn not to draw his sidearm with his finger on the
trigger by requiring him to perform actual online tasks? You'll only
wind up emailing death threats to Tipper with an
"@atfhq.atf.treas.gov" return address.
You can make them up. You can make anything up and introduce it into
evidence against your chosen victim. You can convict anyone, of
anything, at will.
That's what it means when the government gets to introduce "evidence"
without even having to make up a good lie as to where it comes from,
But of course, I'm just being a wild-eyed conspiracy nut again. Our
government would never do any such thing. Any more than it would
launch a war of aggression against a non-hostile nation to prevent
the Chief Executive from being busted for selling secrets to the Red
Chinese, or burn scores of law-abiding Americans to death in their
own home and cover up the evidence afterwards.
You got me.
Victor Milán email@example.com
The great distinction:
A conservative is a socialist who worships order.
A liberal is a socialist who worships safety.
Fourth Estate Lawyers
"The June American Lawyer, in its article recounting the origins of
the firearms litigation, reports that prominent New Orleans trial
lawyer Wendell Gauthier was the first to talk his colleagues into
suing gun makers, even though their pockets weren't all that deep.
The suit 'fit with Gauthier's notion of the plaintiffs bar as a de
facto fourth branch of government, one that achieved regulation
through litigation where legislation failed.' " - excerpted from "Big
Guns: Plaintiffs' lawyers declare themselves the 'fourth branch of
government' and go after firearms", by Walter Olson, in Reason
Online, October 1999 [emphasis added - TLE]
to return to the previous article, or
Table of Contents
to return to The Libertarian Enterprise, Number 56, September 30, 1999.