January 22, 2002
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1. Walker This Way
The decision to try John Walker Lindh in federal court has put Attorney General John Ashcroft in a tough spot. Ashcroft has to face the possibility that he'll need to make a face-saving plea agreement rather than risk seeing "the American Taliban" walk.
A smart defense attorney will do everything possible to get anything that Walker might have told the government declared inadmissible. Ashcroft seems to think that because he has Walker's signature on a piece of paper everything is a slam dunk.
It is hard to tell when Walker might have waived his right to an attorney. Was it when he was half-conscious, near death while being treated by a Special Forces medic? Or was it when he was trussed up, kneeling in some courtyard while CIA operatives loudly discussed whether he wanted to live or die? Or it could have been later, while he was held incommunicado (at least from his, ahem, lawyer) on the USS Bataan.
Also, the extent to which Walker knew Al Qaeda was out to kill Americans will be plumbed. Being a member of the Taliban at the time the U.S. opted to go to war is not itself a crime; otherwise the thousands of Taliban fighters who switched sides would be on their way to Gitmo too.
Looming over Walker's trial is just how the U.S. will handle bad actors it does catch.
The Bush administration cannot have it both ways. Targets cannot be both combatants engaged in an act of war against the U.S., and thus liable to be on the pointy end of several tons of ordnance, and common civilian criminals subject to the full perp walk, plead-or-else prosecutorial heft of the Justice Department. If the feds refuse to choose an approach, they at least need some hard-and-fast rules aside from simple convenience.
Back in December during his dramatic appearance on Capitol Hill, Ashcroft laid down his tough line on getting terrorists, which seemed to be part of the justification for Bush's creation of military tribunals.
"Are we supposed to read them their Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV?," he asked.
If they are going to be tried in federal court, what other choice is there?
2. Code is King
Every time a settlement looms in the government's antitrust case against Microsoft, some tech-blind troop of lawyers pops up to find a problem. The latest involves geeky little things known as application programming interfaces (APIs).
APIs are the little "hooks" in Windows–or any big, complex piece of software–that allow smaller, more task-specific pieces of software to attach themselves. Developers of applications for Windows, who may or may not work for Microsoft, need to know where these APIs are and what they do so the code they write will work.
For years the complaint has been that Microsoft kept many of the best, most efficient APIs secret so that only in-house developers working on Microsoft could use them. Thus Microsoft's control of the PC operating system market gives it an unfair advantage, allowing it to "extend" its monopoly via unfair practices. So, the reasoning goes, Microsoft must be forced to publish all its APIs.
But this claim overlooks the fact that Microsoft–or any other builder of complex software–might have a very good reason to keep some APIs under wraps. Fixing and supporting code in the field could become almost impossible if outside developers were allowed to use any API in any way they wanted. Small patches could blow up dozens of applications, resulting in costly, bigger fixes for everyone involved.
For that very reason many software firms try to manage the number of APIs they let developers play with. Nothing nefarious there. But even if we assume the API police are right and Microsoft does use its API scheme to its benefit, that isn't the end of the story.
It is at least as important to remember that Microsoft's competitors would love to force Redmond to support hundreds of more APIs. That, at the very least, would be more expensive, it and could translate into unstable operating systems. This would play right into the hand of Redmond's UNIX-based business-sector competitors, who for years have seen their market share shrink while trying to justify their higher-priced UNIX systems by saying the premium bought much better reliability compared to Microsoft's offerings.
Court-ordered mucking about in the internals of Microsoft code would also further the goal of getting Windows declared a de facto common carrier, the same category that regulators apply to the phone lines running into every home. As a common carrier Windows would have to treat all comers "fairly" as determined by–surprise–lawyers.
Leaving aside whether the comparison between Windows and copper-lined infrastructure makes any sense, the sorry state of U.S. telecom, with incoherent pricing, government service mandates, and sketchy availability of broadband, fairly screams that API policing will not end well.
3. The Enron Midgame
The Enron blame game continues, now with the chief executive of Arthur Andersen pointing out that Enron's business model was faulty.
"An important point here is people want to focus on the accounting, and that's fair game, but a company has failed … because the economics didn't work," Joseph F. Berardino said on NBC's Meet the Press.
True enough, but it might have been nice for someone at Andersen–which was receiving hefty consulting fees along with Enron's audit biz–to point this out back when the firm's SEC filings started to go wacky over a year ago.
In the political realm, Enron's appetite for heavy pollution regulation is becoming clearer. It turns out that in a July 1997 White House meeting Enron CEO Ken Lay personally asked Bill Clinton and Al Gore to support pollution credits as a response to global warming. Enron planned to "make a market" in these credits and make a killing.
A later Enron memo noted that the Kyoto pollution treaty–signed by Clinton but never ratified by the Senate–"would do more to promote Enron's business than will almost any other regulatory initiative outside of restructuring the energy and natural gas industries in Europe and the United States."
Michael Lynch summarizes the Enron debacle to date at https://reason.com/ml/ml011702.shtml
Sam MacDonald says the Enron collapse now colors everything big-business lobbyists do in advance of November's elections at https://reason.com/hod/sm012102.shtml.
4. Quick Hits
Quote of the Week
"All we'll have to do is milk the goats," geneticist Jeffrey Turner, president and chief executive of Nexia, referring to the development of new technology that extracts silk-making genes from spiders and implants them in goats.? The silk, five times stronger than steel, can be harvested to make sutures for microsurgery, biodegradable fishing line, or body armor for the U.S. Army.
A Medal of Honor carried by a retired Marine Corps general who won it as a fighter pilot during World War II prompted questions from airline security personnel at Phoenix's international airport.? Joseph J. Foss was held up for 45 minutes while a decision was made on what to do with the medal and a nail file he carried.
Officials in Charlotte, North Carolina, shrugged off news that the city's NBA franchise plans to move to New Orleans. The Big Easy promises several million dollars a year in subsides to help offset any operating losses the Hornets might suffer. "Stop-gapping the Hornets' financial losses…is not a taxpayers' expense," Charlotte's budget director explained.
5. New at Reason Online
Birthmarks and Bioethics
Enron So Far
and much more.
6. Coming in the March issue of Reason's print edition:
In Praise of Vulgarity How commercial culture liberates Islam—and the West. By Charles Paul Freund
Panic Attacks Drawing the thin line between caution and hysteria after September 11. By Jesse Walker
Social Insecurity Why an increasing number of countries are turning to market-based pension plans. By Brink Lindsey
The Politics of Dead Children Have sanctions against Iraq murdered millions? By Matt Welch
Windbags of War Even after September 11, left-wing McCarthyism predominates on American campuses. By Cathy Young
Porous Border How Mexican migrants change themselves—and the U.S. By Sara Rimensnyder
And much more. If you like Reason Express, you'll love the print edition of Reason magazine.
7. Reason News
Click here for the latest on media appearances by Reason writers.
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