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The 2018.07.13 Reuters article, by Joseph Menn, observed at https://www.reuters.com/article/us-usa-trump-russia-cyber/u-s-indictments-show-technical-evidence-for-russian-hacking-accusations-idUSKBN1K32X1, is wrong. Despite the title and the content, there wasn’t evidence in the indictment. Perhaps Mr Menn was mislead by his sources or advisers, or maybe he simply does not understand what constitutes evidence. Either way, the article doesn’t deliver what its title promises. “Evidence” is a term of art in law, with a precise meaning. This specific term, evidence, is quite logically defined, so we don’t need to contort our logic to understand how lawyers use it. Evidence is “Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact”. (Black’s Law Dictionary, Ninth Edition) There is no ordinary requirement that a complaint or indictment contain any evidence. An indictment might say, “A murdered B, using a knife belonging to C, at 123 Main Street on 1 January 1900”: that is merely an allegation, that’s good enough. There is no evidence that any murder took place, or the means by which it was done, but the indictment is sufficient for most purposes. In fact, you might allege the existence of evidence, but the indictment itself usually cannot possibly contain any evidence. How, for example, would a corpse or a bloody knife be included in an indictment? An indictment is expected to contain only allegations. An allegation is merely an assertion that something is true; the assertion isn’t necessarily true, but it might be. It’s up to the trial to determine the truth or falsity of allegations in the complaint or indictment; it’s during the trial that the evidence is examined. You don’t convict on allegations, you convict on evidence. I’ll pick a few examples from the indictment, as discussed in the Reuters article, to illustrate. I’ll omit the obvious adjective, “alleged”, because, at this point, everything is alleged. So I won’t say, “alleged conspirators”, I’ll just say “conspirators”. The indictment alleges that the conspirators used a common bitcoin wallet both to acquire a VPN network account and to acquire the use of a server which hosted DCLeaks. There is no evidence here. If there were a statement of such evidence, it might say something like “the blockchain shows that the transaction shows bitcoin wallet identifiers X and Y, and the accounting records of the ISP recorded a bitcoin transaction of the same amount at approximately the same time, the ISP claims that its own wallet identifier is Y, and the blockchain shows that there were no other transactions during the interval A to B which used either of the identifiers X or Y”. In other words, the evidence would be alleged to show how we know that the allegation is true. (All of this isn’t complete. For instance, how do we know that the ISP claims that its wallet identifier is Y? Is there an affidavit? Do they publish the wallet identifier to facilitate such transactions? But this should illustrate the basic idea.) Here are a few more points consider: (1) Investigations and grand jury proceedings are normally conducted in secret. So it shouldn’t be surprising that we don’t know, for example, the bitcoin wallet identifiers. But why, in the lead-up to the election, and just after the election, before a formal prosecution was established, when this or that intelligence agency was supposedly claiming that the Russians did it, weren’t we given even the least bit of evidence to prove it true? (2) We don’t at this time know, however, if the prosecution even has such evidence as bitcoin wallet identifiers. Maybe they just came up with a story but without sufficient evidence, hoping, perhaps, to fill in the blanks later. (3) It has been speculated that the investigation has resulted in allegations which knowingly cannot be proven. Why would the prosecutor do this? If, as some believe, the prosecution is politically motivated, and if such persons as Guccifer 2.0 can’t be found or extradited for trial, then there might never be a trial, and no evidence will ever be adduced, so there is little risk to making claims which can’t be supported. (I’m not saying that I subscribe to this theory, but it has been widely mentioned in the press and on line.) (4) It is often asserted that the spooks (NSA, CIA, or whoever) can’t produce the evidence because it might jeopardize “sources and methods”. That may be true, but it’s mostly crap in this case. The technology of analyzing server logs, tracing bitcoin transactions using wallet identifiers, and so on, has been around for years. It’s well-known, publicly available stuff. There are no sources or methods to protect in most of it. Kids in junior high school do this routinely. The only witnesses needed to establish the validity of the chain of evidence are going to be mostly server administrators and the like, whose identities need not remain secret. A source in the article was quoted as saying, “The amount of intelligence gathering capability realized by this is astonishing”. In fact, I’d be astonished if the spooks couldn’t do these things. What the hell have they been spending all that money on? Pornography? (Well, maybe some of it went to pornography.) I’m not acquainted with the source; perhaps he was misquoted, or quoted out of context. This is kindergarten stuff. The blockchain is public. Getting the books of the ISP is ordinary gumshoe and subpoena activity. I’m guessing that a lot of people who work in this field are laughing at that statement. In particular – and this is why I mentioned the Clinton server – there has been no credible reason put forth that a lot of this evidence, if it exists, couldn’t have been made public a long time ago. We all know that there are a couple of theories about how the DNC files made it to Wikileaks, and portions of the server logs could have been published by Clinton herself (OK, maybe by a hired system administrator) to put much of this to rest, and such publication would not have endangered or jeopardized anything or anyone. The only credible reasons obvious to me for keeping a lot of this stuff in the dark are (1) to create a side show as a distraction, or (2) to protect someone because of what’s on, or what was on, that server. Or, a more sinister but less likely possibility, (3) to frame someone in the court of public opinion. Why is there no evidence? _________________________________________________________ Full posting guidelines at: http://www.marxmail.org/sub.htm Set your options at: http://lists.csbs.utah.edu/options/marxism/archive%40mail-archive.com
