The first fallout from Cybergate

    Date11 Feb 2004
    Posted ByAnthony Pell
    This might be analogous to the difference between trespassing and "breaking and entering". It is a well known aspect of law that breaking into private property that has been explicitly locked is far more serious than if it was left open. If left open, the issues become muddied with those of entrapment; the act of encouraging a crime so that you can persecute it. If the Democratic memos were left completely unsecured, which appears to be the case here, it clouds the legal case against those who read them. . . . Politics is dirty business, and rarely so much as in the area of patronage: appointments to sought-after federal jobs in general, and to the federal bench in particular. So it should be little surprise that, with so much at stake, one political party would want to use the insecurity inherent in computerized databases to its political advantage.

    What is surprising, however, is that, caught with their hand in the cookie jar, Senate Republicans employed the tactic of blaming the victim: they said, in essence, It's your fault that we got and used your information. If successful, this tactic does not bode well for the government's ability to prosecute computer crimes, and to protect critical infrastructures.

    With the resignation last Thursday of Senate staffer Manuel Miranda as the first victim of what I might call "cybergate," we may learn whether this tactic will be pursued and whether it will be ultimately successful.

    The scandal itself revolves around the process by which federal judges are appointed, and more importantly, how such appointments are blocked by the opposing party. When President George W. Bush came to office, he sought to make numerous appointments to the federal bench -- some to positions that conservative Republicans had deliberately left vacant for years of Democratic administrations.

    The Democrats, at the time a majority in the Senate, sought to use tactics similar to those they criticized Republicans for in preventing such nominations from reaching a vote on the floor of the Senate. The key Senate Committee responsible for such appointments was the Judiciary Committee.

    Democratic staffers wrote and transmitted confidential memoranda describing the means they would use to block such nominations in general, and the nomination of conservative Republican Miguel Estrada in particular. A year ago, in February 2003, columnist Robert Novak -- the same columnist responsible for revealing the name of a CIA operative on a leak from government officials -- published information from these Democratic strategy memos. Novak reported that the information came from "internal Senate sources" but refused to identify these sources when questioned by Boston Globe reporter Charlie Savage.

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