203 lines
10 KiB
Plaintext
203 lines
10 KiB
Plaintext
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Conspiracy Nation -- Vol. 8 Num. 93
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======================================
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("Quid coniuratio est?")
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CASOLOCTOPUS
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============
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Subject: Re: Casoloctopus
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Kenn Thomas
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As Inslaw prepares for its new day in court [see Conspiracy
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Nation Vol. 8, #91], the following reviews some of the legal
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history of the PROMIS case. The excerpt comes from THE OCTOPUS:
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SECRET GOVERNMENT AND THE DEATH OF DANNY CASOLARO by Kenn Thomas
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and Jim Keith, available next month from Feral House, POB 3466,
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Portland, OR 97208,
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www.sninet/central/feralhouse/
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Kenn Thomas publishes Steamshovel Press a "conspiracy theory"
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journal available for $6 from POB 23715, St. Louis, MO 63121,
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www.umsl.edu/~skthoma
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Inslaw and The Law
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Danny Casolaro had been pulled under by the Octopus of his
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imagining or his investigations, perhaps both. In not too
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distant waters, however, other behemoths thrashed about for
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supremacy in an even larger conspiratorial sea--the law.
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Legal forces lined up against Inslaw began to clarify when
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the Hamiltons discovered that Associate Attorney General D.
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Lowell Jensen had, as District Attorney in Alameda County,
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California, promoted DALITE, a rival management software, to the
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58 county California district attorney offices. Larry Donoghue,
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the man responsible for selecting software used by the L.A.
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office and later named deputy district attorney for LA County,
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recalls that, "Jensen called me into his office and I went away
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feeling what I regarded to be unusual and significant pressure to
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select the DALITE system." PROMIS, however, had won the Los
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Angeles County office and, as Bill Hamilton later remarked,
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"...evidently Jensen bore a grudge." Hamilton recalls, "Jensen
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was promoted to associate Attorney General in May or June of `83
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-- and that's when all the contract disputes came up." Jensen
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even served as chairman of the oversight committee in charge of
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PROMIS.
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Additionally, Jensen had served with Ed Meese for 12 years
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in Alameda County while Meese had been a deputy district
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attorney, and in 1985 Meese promoted him to Deputy Attorney
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General. He also came under scrutiny during the Senate's
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Iran-Contra investigations when a memo was discovered from him
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tipping off Oliver North that the federal prosecutors were aware
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of his actions. This from a Justice Department official charged
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with prosecuting the matter. (1)
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There was no misunderstanding in the government's handling
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of PROMIS. The government, or at least a particular segment of
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it, was out to get Inslaw. Sometimes they even said so in so
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many words: "On a gorgeous spring morning in 1981, Lawrence
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McWhorter, director of the Executive Office for USA attorneys,
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put his feet on his desk, lit an Italian cigar, eyed his
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subordinate Frank Mallgrave and said through a haze of blue
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smoke: "We're out to get Inslaw."
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"McWhorter had just asked Mallgrave to oversee the pilot
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installation of PROMIS, a job Mallgrave refused, unaware at the
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time that he was being asked to participate in Inslaw's
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deliberate destruction.
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"We were just in his office for what I call a BS type
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discussion," Mallgrave told Wired. "I remember it was a bright
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sunny morning... (McWhorter) asked me if I would be interested
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in assuming the position of Assistant Director for Data
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Processing...basically working with Inslaw. I told him... I
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just had no interest in that job. And then, almost as an
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afterthought, he said `We're out to get Inslaw.' I remember it to
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this day."(2)
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The job eventually went to C. Madison "Brick" Brewer. Bill
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Hamilton previously had fired Brewer for poor job performance.
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Brewer's new position as hired gun on the Inslaw case for the
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Justice Department gave Hamilton an early perception that the
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undue hassle faced by his company came from Brewer's personal
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vendetta. This was before the revelations concerning Earl Brian,
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the October Surprise pay-off and the rest of the sordid mess.
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(3) The Justice Department determined that no conflict of
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interest existed for Brewer in his new assignment. Brewer would
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eventually testify in federal court that he received approval
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from Deputy Attorney General Lowell Jensen, whose vested interest
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in the rival DALITE software had been damaged by the contract
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award to Inslaw in the 1970s, for all of his actions regarding
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Inslaw. Perhaps revenge had transformed Inslaw's contract
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disputes into a legalistic attempt to trash the company.
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Things could never be that simple in Inslaw's case, however.
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Joined with Brewer's at Justice was Peter Videniecks, the man
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Michael Riconosciuto had sworn threatened him to not testify
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before the House Judiciary Committee. Videniecks had his own
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incestuous connection to Inslaw: he had worked in the Customs
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office maintaining its contracts with Earl Brian's Hadron, Inc.
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systems consulting group. Videniecks and Brewer led Justice to
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demand that Inslaw turn over PROMIS just in case an alleged
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impending bankruptcy made it impossible for the company to live
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up to its contracts. Inslaw agreed, but with the stipulation
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that Inslaw retain all rights to enhancements to the program and
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that Justice only provide it to the US Attorney's office.
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Justice, predictably, reneged. It made no effort to determine
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the validity of Inslaw's claims of ownership to PROMIS
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enhancements and began to withhold payments, making its
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subsequent forced march into bankruptcy court a Justice
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Department self-fulfilling prophecy, and beginning the process
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that originally had attracted Casolaro's attention. As Inslaw's
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problems mounted, Earl Brian's Hadron, Inc., made a play to
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takeover the company through Dominic "We have ways of making you
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sell" Laiti, another company, SCT, financed by investment bankers
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linked to Brian, also attempted a buy-out.
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Inslaw ultimately hired Leigh Ratiner of Dickstein, Shapiro
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and Morin, to file suit against Justice to the tune of $30
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million. Ratiner established the bankruptcy court as having
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jurisdiction in the dispute with the unique argument that Justice
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had seized control of PROMIS. As Inslaw's creditor, this
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violated a tenet of the Bankruptcy Act forbidding creditors from
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controlling the property of debtors.(4) The strategy led to Judge
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George Bason's favorable ruling for Inslaw in 1987, which also
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led to Bason's early removal from the bench and, according to Ari
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Ben-Menashe, possibly also to Leigh Ratiner's early retirement by
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a pay-off to his law firm. (5) Federal district court judge
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William Bryant upheld Bason's decision after an appeal by the
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Justice Department, and the Supreme Court denied review in
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October 1991. A separate appeals court, however, deciding on an
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appeal made by the Justice Department, ultimately overturned
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Bryant on the basis of the jurisdictional argument. A three
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member panel of judges determined that federal bankruptcy court
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had no jurisdiction in the case. No judgement was ever issued
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exonerating the Justice Department from its actions in the Inslaw
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matter.
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Casolaro had given some thought to other legal dimensions of
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the Inslaw predicament. In undated notes, he made an extensive
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study of computer software and hardware case law, from the point
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of view of trade secret protection, trademark protection,
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contract law and patent law and copyright law. From that
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perspective, he underlined the concept of "a reverse engineering
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approach" that he felt was applicable to the legal status of
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PROMIS. Called the "clean room technique", it is used as a
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method of avoiding copyright infringement in the developing of
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software products of similar functions. The clean room uses two
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teams, one receiving and decompiling the protected work legally
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and "producing a document setting forth ideas and specifications
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that are in the unprotected idea domain." The second team takes
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the document and, with no further communication with team one,
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creates a new product without infringing on the protected aspect
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of the original software. Casolaro notes that such reverse
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engineering had been used by the many computer manufacturers to
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clone Apple and IBM computers. Apple and IBM never pursued legal
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action against the clean room technique because they feared an
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unfavorable legal action. (6) Perhaps for similar reasons, the
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PROMIS problems were never played out in the copyright legal
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arena.
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(1) Mahar, Maggie, "What Really Sparked the Vendetta Against
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Inslaw?", Barron's National Business and Financial Weekly, April
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4, 1988.
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(2) Fricker, Richard L., "The Inslaw Octopus," Wired 1.1,
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Premiere Issue, 1993, p 80.
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(3) Richardson, Elliot, L., "A High-Tech Watergate," New York
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Times, October 21, 1991.
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(4) Fricker, p. 101.
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(5) Ben-Menashe, Profits of War, p. 141.
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(6) Casolaro's Notes.
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of Conspiracy Nation, nor of its Editor in Chief.
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Aperi os tuum muto, et causis omnium filiorum qui pertranseunt.
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Aperi os tuum, decerne quod justum est, et judica inopem et
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pauperem. -- Liber Proverbiorum XXXI: 8-9
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