Swearing out a Complaint

As I posted earlier, Washington County District Attorney, Todd K. Martens, does not think it is his job to enforce state election law within the Washington County courthouse.

In order to force his hand and set the ground work to take this to circuit court and/or to the State's Attorney General, I filed a formal complaint under WI Stats. 5.08 outlining 14 criminal lapses of WI Stats.7.23(1)(g) by the Washington County Clerk, Brenda Jaszewski to backup electronic election records.

A copy of the complaint can be found here.

The most interesting information today thousgh was from the clerk of Washington County, Brenda Jaszewski.

As I was delivering a copy of the complaint and its supporting exhibits, I asked Ms. Jaszewski if she had made any backups of the memory cards yet. She told me that the GEMS election management system from Diebold Election Systems, Inc. (now Premier Election Solutions) provide no feature or function to her so she can comply with the backup requirents of WI Stats.7.23(1)(g). I then asked her if she has destroyed the data containing election information from the April 3, 2007 in preparation for the upcoming November 9, 2007 School Bond Referendum in West Bend. On this question Ms. Jaszewski lawyered up and State should would not answer that question until she had first conferred with the county attorney.


I wonder if Ms. Jaszewski remembers her trip to the Brookfield Village Hall with ten other county clerks on January 18, 2006. She and other clerks from around the state came before the Wisconsin State Elections Board to demand that the Board certify the exact Diebold Election System equipment and software which is failing her now.

Back in August, 2005 through December, 2006 myself and others around the state and country were pointing out that the election equipment and software from Diebold did not meet the minimum statutory requirements of Wisconsin. In January, 2006 Clerk Jaszewski took time to actively pressure the WI State Elections Board to certify "her" equipment.

Now that Ms. Jaszewski has to admit that the Diebold system fails to meet yet another state statutory requirement, I have very little sympathy for her. She fought very hard 18 months ago to buy the bed in which she must now lie.

DA Todd Martens Shirks His Duty

I received a letter from the Washington County District Attorney, Todd K. Martens, official stating that he will duck and shirk his duty to enforce election laws in the Village of Germantown. Moreover, District Attorney Martens absurdly states that it is not the responsibility or jurisdiction of a Wisconsin district attorney to investigate or prosecute election misconduct.

Here is a short recap of this matter. Using the open records law I discovered that my county clerk was not creating election records she is required to make. I reported on this here. I turned the matter of over to the DA by sending him this letter on October 9, 2007. The complete response from Washington County DA, Todd K. Martens, dated October 22, 2007, is here: Letter from Washington County DA Todd K. Martens. [In order to fight the "Memory Hole" effect of URLs, I have highlighted this post publication updatein green. jww].

According to the Washington County DA:

My office has the responsibility to enforce Wisconsin's open meetings, open records, and ethics laws. Assuming there is a violation of the statute you cited [WI Stats. 7.23(1)(g)], my office does not have the authority to investigate it or prosecute it.

Aside from the frightenly short enumeration DA duties, this statement is in clear contradiction to written statute, WI State Election Board Regulations, and recent history in Southeast Wisconsin.

Wisconsin state statute 5.08 reads[emphasis mine]:

5.08 Petition for enforcement. Any elector[I] may file a verified petition alleging such facts as are within his or her knowledge to indicate that an election official has failed or is failing to comply with any law regulating the conduct of elections or election campaigns or proposes to act in a manner inconsistent with such a law, and requesting that an action be commenced for injunctive relief, a writ of mandamus or prohibition or other such legal or equitable relief as may be appropriate to compel compliance with the law. The petition shall be filed with the district attorney of the county where the violation or proposed action inconsistent with this chapter occurs or is proposed to occur. The district attorney may then commence the action or dismiss the petition. If the district attorney declines to act upon the petition or if the district attorney fails to act upon the petition within 15 days of the date of filing, the petitioner may file the same petition with the attorney general, who may then commence the action.

My most forgiving characterization of these events is that Washington County DA Todd K. Martens does not believe my letter of October 9, 2007 does not meet the definition of "verified complaint".

As a matter of law he is correct. The allegations in the letter are not submitted under penalty of perjury. So, I will recast my letter as a formal petition for action under 5.08 and follow every tittle and jot therein in order to create a verified complaint.

Milwaukee county district attorney, Mike McCann, began investigating election frauds from the November 2, 2004 election on the basis of newspaper reports by Greg Borowski. From a legal point of view this is flimsy evidence upon which to begin an investigation. DA Martens must have privately thought DA McCann was out of line in January of 2005 for investigating election fraud and voter fraud in the City of Milwaukee. DA Martens does not believe it is the place of a County DA to investigate election official breaking Wisconsin election law.

Clearly, on this front (election law), DA McCann was a much better prosecutor than DA Martens is.

No Backups of Election Records

For 19 years (since the passage of 1987Act391) Wisconsin law has required election officials to make backups of the electronic records found on the removable memory cards of voting equipment. The specific statute, WI Stats. 7.23(1)(g) reads:

7.23(1)(g) Detachable recording units and compartments for use with electronic voting machines may be cleared or erased 14 days after any primary and 21 days after any other election. Before clearing or erasing the units or compartments, a municipal clerk shall transfer the data contained in the units or compartments to a disk or other recording medium which may be erased or destroyed 22 months after the election to which the data relates.

I have been given a number of excuses over the last two years as to why required election records have not been created. The excuses are many and varied, but are all variations on the theme:

"But, this is a new (procedure/form/requirement). The election officials are not used to following the new (law/regulation/recommendation)."

I thought for sure a twenty year old law has been followed all along or at least for the last five or ten years. But, being the trusting soul I am, I took Reagan's advice to "Trust, but verify".

I sent out open records requests to various municipalities in the state for copies of the electronic backups created pursuant to 7.23(1)(g) for both the scanners and disability devices for the september, 2006 and November, 2006 elections. So far only the City of Milwaukee and the Village of Germantown (via the county clerk, Brenda Jaszewski) have responded. Neither creates the electronic backups mandated by WI Stats. 7.23(1)(g). From the followup questions to the open records request (e.g "What records are you talking about?"), I don't think anyone in the state is creating the backups legally mandated by WI Stats 7.23(1)(g).

Since, I live in Germantown this is the only place where I have only pursued the matter further. On October 10, 2007 I turned the matter over Washington county DA, Todd Martens. As of Friday, October 19, 2007, offical statement of the office of the Washbington County DA is that the matter is under investigation and there is no further comment at this time. You may contact the DA's office at: 262-335-4311, for further updates.

Here is the original open records request to the Washington County Clerk and her response stating there are no such records in existence. By her own records, Ms. Jaszewski put data on to memory card 6131-DA-D1 on August 26, 2006. More data was added on September 12, 2006, (if nothing else candidate vote totals), and no backup was made before the data was destroyed on October 3, 2006 by Cathy Weston.

I have spoken with a top attorney who specializes in Wisconsin election law. He was unaware that there was a data backup requirement and mention that it is likely I am the first person in 20 years to have checked to see if this election law is being followed. There are a lot of citzen watch dogs (and WI SEB staff) who oversee the enforcement of Chapter 11 (campaign finance), but no watch dogs who double check on the enforcement of Chapter 7 (Election Administration).

Here is to being a Chapter 7 watch dog. Woof Woof.

Gossip Girls at West Bend High

The West Bend High School Library has used tax funds to add the whole Gossip Girl series to the library collection. Some parents are tentatively scheduled to meet with the school administration about this acquisition at 3:00 pm on Monday, October 15, 2007. If you would like to participate, please contact 262-335-5570 (WBHS West) (262) 335-5530 (WBHS East)

Some West Bend parents are objecting to the use of tax money for such questionable additions to the library. It is good parents should know, review, and approve what is being purchased with their money. The argument by the American Librarian Association for including the Gossip Girls series in a library collection is that reading anything is better than reading nothing. (I disagree with this false dichotomy). The Librarians contend that only by reading trash will young readers be able to recognize good literature should they happen to trip over something such as Wuthering Heights. Source: Pam Spencer Holley of the American Library Association [ALA]

So, I am clear, I believe the Gossip Girls to be trash. The endless parade of casual sex, drugs, and betrayal is titillating, but not redeeming literature. The money of parents should not be stolen in order to purchase these books. It is good for the owners of the school (the taxpaying parents) to tell the hired help (the librarian) what are and are not acceptable library books. Withholding one's patronage is not censorship.

But, the main problem in the West Bend High Schools has less to do with the trash which is the Gossip Girls than with the confiscation of money at gun point in order to buy the books. Even Thomas Jefferson disagrees with the librarians on this one: To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is both sinful and tyrannical.

The problem here is the funding for the West Bend youth propaganda camps. It is coerced and attendance at the camps is mandatory for 12 years. The problem is the tax-funded school which Horace Mann transplanted from Prussia to Boston and which then infected the rest of the country. There must be a separation of State and School.

The article, "The Problem is the School" expounds on the educational problems Jefferson identifies above. The salient quote is:

With a private school, Newdow can avoid entanglement with beliefs he does not share simply by abstaining from patronizing it. He can’t do that with a government school.

To have the State involved in education is both sinful and tyrannical. Education must always be about ideas. The contents of our thoughts and the formation of those ideas is never a matter for the State.

Would anyone care if Living Word Lutheran High School carried Gossip Girls in the library? No. Because unless you are paying the tuition, you will rightly rule that the content of the library at the private school is a private matter.

But, the library contents of a tax-funded school can never be a private matter. Public money means the public as unwilling owners get to dictate the spending of their stolen money.

To the parents of West Bend students:

If these are not the books you would choose for your young girls, then you should withdraw you support of the school by any means necessary. You pay the bills. You name the tune the band will play.

To the librarians of the West Bend High Schools:

You claim you have no power to remove this book from the collection. That removal is censorship. This is a lie. You had the power to remove something from the library shelf to make room for the Gossip Girls. You have the power to remove the Gossip Girls in favor of worthwhile literature. You censored some book(s) to make room for the Gossip Girls. Removing or not selecting new books in order to create room for the Gossip Girls was censorship, because you used the coercive power of the State to inflict your notion of literature on students and parents. If you do not like that the owners of the library (taxpayers) can control the content of the collection they own, then work for a private library, a book store, or open your own library.

To the Administration of the West Bend High Schools:

Whom do you serve? The taxpayers? The parents of the students? The students themselves? Your anointed and utopian vision to mold children in spite of how parents would raise up their children?

US Star Chambers

If Star Chamber Court(s) are not already set up in the USA there is nothing in current US law to prevent it.

To undertand why this is important you need to understand history and why the disappearance of the Rule of Law from America is dangerous. Nothing does both like this excerpt from the play, "A Man For All Seasons", by Robert Bolt:

Alice: Arrest him!
More: Why, what has he done?
Margaret: He's bad!
More: There is no law against that.
Roper: There is! God's law!
More: Then God can arrest him.
Roper: Sophistication upon sophistication.
More: No, sheer simplicity. The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal.
Roper: Then you set man's law above God's!
More: No, far below; but let me draw your attention to a fact -- I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forester.I doubt if there's a man alive who could follow me there, thank God.
Alice: While you talk, he's gone!
More: And go he should, if he was the Devil himself, until he broke the law!
Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake. (source)

Here is what happens when all the laws are flat and the Devil turns round on you. You are kidnapped, rendered to Afghanistan, and then tortured for 10 months because of mistaken identity as in the case of Khaled el-Masri

If you think this can not happen to you, an American Citizen, then you have not been paying attention. The Military Commissions Act of 2006 (MCA 2006) allows this to be done to American Citizens. See paragraph ii of the definition of unlawful combatant found in section 948a of the MCA 2006. This coupled with the ruling in the John Gilmore case that laws and regulations can be secret even from the defendant means the regulations creating those "other competent tribunals" under the MCA 2006 do not need be made public. Also, little noticed by Americans, is that the Posse Commitatus Act was largely gutted in December 2006 when the John Warner Defense Appropriation Act was signed.

So, under current US law, the President or Secretary of Defense can create a "competent tribunal" by administrative rule (MCA 2006). The "competent tribunal" can be created without public notice in the Federal Register or the Code of Federal Regulations (Gilmore v. Ashcroft/Gonzales). Then, this secret, "competent tribunal" can declare a US citizen (e.g YOU) an unlawful combatant. Once declared an unlawful combatant you can then be "disappeared" ala Eva and Juan Peron and shipped on a rendition flight to Afghanistan, Gitmo, or Syria to be imprison and/or tortured indefinitely. Moreover, if the "competent tribunal" decides you are part of a "conspiracy", then under the restructured Posse Comitatus Act the armed forces (rangers, seals, MP's, etc.) can be used to kidnap give you Schutzhaft.

Welcome the Empire. All hail the Decider! May his benvolence reign lightly opon you.

Self-Incrimination in the UK

Many people think the US Constitution is a quaint document and can and should be ignored when convenient so that Congress is able to legislate at will. After all Congress is elected so it can't stray far from the will of the people. This is the UK model to protect human liberty and it is a very weak protector indeed as the UK has proved again today.

In the UK you can be compelled to provide testimony and evidence against yourself. This requirement to self-incriminate or go to prison has been extended to the electronic realm of Blackberries.

In the US the theory (untested in the courts) is that providing decryption keys is providing testimony. This is because the government is asking you to say something, write something, or otherwise communicate information to the investigators. Forcing testimony you consider self-incriminating is prohibited by the Fifth Amendment. The analogy is my shed which is locked by a combination lock and the police have presented me with a valid, Judge-signed search warrant. I am under no obligation to unlock the shed nor can I be compelled to recite the lock combination. If the police want to search fine, they can get out the bolt cutters and search the property (shed) named in the warrant. It is the same if the search warrant calls for the seizure of my hard disk. I am under no obligation to decrypt the data nor am I under any obligation to recite the description key. Let the police use the access technology on the market (electronic bolt cutters) to access the hard disk named in the warrant or find the password written down on a piece of paper in my desk.

Here are competing theories on this:
The US DOJ thinks your crypto key is not "testimonial" and, thus, not protected by the Fifth Amendment to the US Constitution.

Mr. Sergienko disagrees and backs up his analysis with case law citations the DOJ paper lacks. His position is that your crypto keys are testimonial (protected) because the keys are both communicative and can be used for authentication. Either property makes an utterance testimonial.

Both (US DOJ and Sergienko) though agree that the matter rests squarely on the testimonial, compelled, and incriminating nature of the plain text recovered. The DOJ avoids the topic of authentication completely and only addresses the communicative nature the plain text recovered.

But, as I said earlier neither theory has been test before by the 9 demi-gods in black dresses, so relying on the fifth for protection when needed may prove as helpful as a broken tooth.

BTW, did you notice in the article that Blackberry seems to be the only internet PDA device which routinely encrypts your email traffic end-to-end? Do Section 49 directives only target Blackberry because the other PDA’s (e.g. iPhone) send your email traffic in the clear so all the police need to do is go to your ISP or packet sniff for the emails of interest?

I may have to consider a Blackberry for that reason alone.