What A Waste!

What Trillanes, Lim and their cohorts did in Manila Pen, I think, is indefensible. That much is certain. Despite efforts to spin what happened, focusing on their "desperation" and sidestepping what they did, is utter bullshit. It's like telling we should ignore people who rob because they did it to feed their kids.

What I am more afraid of is the seeming complicity of a big media outfit to this latest bout of military adventurism. For one, the reporting ABS-CBN, especially of its cable subsidiary ANC, was very spotty I suspect it was almost deliberate. While it had correspondents in Malacanang, it failed to get interviews from the AFP's top brass. So, while B/Gen. Lim and Sen. Trillanes were broadcasting to the whole country that different units of the military are joining them, for a long lull, there was no response from the AFP leadership, at least on TV.

It was almost like "decapitation" by failing to get an interview. This is very apparent especially after commentators doing the post mortem kept citing this lull as a sign that for a while there, everybody in the AFP was fencesitting. Evidently, if one gets his news only from the TV and cable TV, he'd get that impression.

However, Gen. Esperon was on the radio being interviewed by rival radio stations. He even said that most of those who joined Trillanes (those who were in civilian clothes and later changed to fatigues) were former soldiers who were already discharged from the service.Truly, information and disinformation are potent tools of war in the hands of those who know how to use them.

Our media must be able to draw the line between responsible media coverage and being used unwittingly as tools of psy-war. In fact, it was very clear that Trillanes and company were using them as shields. After the PNP issued an ultimatum and advised the media to vacate the hotel, the Magdalo officers kept telling them not to leave because "something big is going to happen at the end of the day".

Trillanes apparently thinks that the 11 million votes he had, which he believes came mostly from the AFP, automatically translates to support for whatever he does. By being elected, he was given a chance to work and make a reality out of his supposed ideals and convictions within the bounds of the law. Now, he throws it all away in one petulant act. What a waste.

The Abalos' Gambit

Some say Abalos "fell on his sword" to escape his certain impeachment and to spare Malacanang the agony of such political circus on someone so closely identified with Malacanang. I don't think opening his political veins to escape impeachment is the real reason. Those who abhor Abalos have already given themselves the masturbatory pat-on-the-back for a job well done.

I think they are underestimating Abalos.

Quite the contrary, instead of a forced move, I think the resignation of Abalos is a cunning gambit to develop his position as to the eventual criminal trial he will be facing. His term ends February next year (I think) and a few months seem too small a shield to hide behind.

Some people miss the fact that he will be tried while the Arroyo government is in power. Further, he is to be prosecuted by the Ombudsman appointed by PGMA. The same Ombudsman who sat on the Mega Pacific case even if the Supreme Court ordered it to determine who is criminally liable for the fucked-up COMELEC automation project. As expected then, she cleared Abalos.

He resigned to fast-track the criminal cases to be filed against him. He hopes that these criminal cases finish before 2010, or at least the presentation of evidence by the prosecution/Ombudsman. Expect the Ombudsman to file cases against Abalos and expect it to be fast. However, don't expect it to build a solid case that can lead to conviction. It will be bungled and hope that no one will notice the sleigh of hand.

The trial must be finished by 2010, or the prosecution's presentation of evidence at least. If a less sympathetic President is elected in 2010, he knows that while the Ombudsman has a fixed term, the executive has arm-twisting ways to pressure her to resign (just look at how Simeon Marcelo suddenly resigned from office). He isn't taking any chances.

If all goes according to plan, he's scot-free thanks to a weak case presented by the Ombudsman. And we can cry until we can squeeze blood from a stone, until vinegar turns to wine, but double jeopardy will protect him.

Am i glad that he resigned? No. I want him to be prosecuted under a new Administration and not under one that will give him acquittal in a silver platter.

The Wiretapping Controversy: Telcos Getting it Lightly

The wiretapping controversy in the Senate has been going on now for weeks. While it has been established that illegal wiretappings have been indeed routinely committed by the ISAFP, there has been yet no finding as to how. If one of the avowed purposes of the Senate hearings is the amendment of the Anti-Wiretapping Law, it must be established how such wiretapping is conducted.

Quite interestingly, a similar controversy is brewing in Greece involving Vodafone Greece and Ericsson regarding the wiretapping of more than 100 high-ranking government officials and dignitaries including the prime minister of Greece, his wife, and the Mayor of Athens beginning shortly before the 2004 summer Olympic Games. An article in New York Times regarding this:

The surveillance was done with a remarkable degree of sophistication, exploiting software developed by Ericsson, the Swedish manufacturer of the GSM cellular switches, which were used by Vodafone. Shortly before the bugging of the cellular system began, the telephone equipment maker had provided a software update to the computerized switches that route cell phone calls.

The article raises fascinating unanswered questions by noting that the Swedish phone equipment firm supplied only a portion of the the lawful intercept system — which had not been purchased by Vodafone Greece. The control interface software module was not included in the upgrade. However, because the modules necessary to essentially target and “clone” phone calls came with the upgrade, the attacker was able to control the modules inside the system, while effectively hiding from Vodafone Greece technicians.

That code permitted someone — who almost certainly had physical access to the computerized switches — to install at least 14 “shadow” cellular phone accounts. Whenever a call was made or received by one of the targets of the surveillance, one of the secretly created cell phone accounts could listen in.

The researchers note that Vodafone bungled its investigation of the crime by abruptly switching off the accounts and then erasing crucial phone and physical entry log data that might have provided clues about the intruders.

In another article, the same issue is being pursued:

A parliament committee is investigating the illegal cell phone surveillance of Premier Costas Caramanlis' and senior state security officials from just before the August 2004 Olympic Games until March 2005.

The list also included senior military officers, human rights activists, journalists, Arab businessmen and a mobile phone used by the US Embassy, according to a list of numbers given to parliament by Vodafone.

Victims of the wiretap operation were subscribers of Vodafone, which uses technology built by the Swedish telecoms equipment maker Ericsson to maintain its Greek network.

Ericsson's CEO in Greece, Bill Zikou, told parliament yesterday that software it installed in the network to allow legally-sanctioned surveillance had been exploited by a rogue programme to tap government phones.

Zikou maintained Vodafone had been informed about that legal software and had been responsible for its protection - a claim strongly denied by the British mobile phone operator.

"Ericsson provided the customer with full details and informative documents, noting that the new software package included software components for lawful interception," Zikou told parliament, according to a statement released in Greek by Ericsson.

But a Vodafone statement issued after Zikou's appearance said it had not been informed about the surveillance software.

In our case, when the telecoms were invited in the Senate hearings, they sent lawyers who seem more intent on leading the Senate on a "wild goose" chase by claiming that the wiretapping being claimed by former T/Sgt. Doble cannot be done without backing up their claim, at the very least, by presenting their technical people. Quite funny that the senators asking the questions base their questions on movies rather than on real-life controversies.

It seems strange that the telecom executives sent to the Senate are not aware of controversies of cellphone providers all over the world as far as wiretapping is concerned. To my mind, that may have been the point why they were sent. They are not technically competent to testify on the matter of cellphone wiretapping.

The actuation of the telecoms in the Senate hearings is quite suspicious. Information, as they say, is the real power. What if they are using the capability to listen to other people's conversation to further their own interests? Or worse, what if they are providing the capability to listen to cellphone conversations to the highest bidder?

Questions begging to be asked:

• What are the capabilities of the government in monitoring and regulating the franchise of these telecoms?
• What are these telecoms doing to safeguard the right of its subscribers to privacy of information?
• What happens when these telecoms violate such?

Back in the Saddle...

Nice to be back blogging.

The plate is full and there is a bunch of targets on the crosshairs. There is the NBN hoopla, the wiretapping controversy, and all the others in between, which is about all there is to be in Philippine politics.

Lemme just get my bearings...

More on RA 4200 and Admissibility of Wiretap Materials

A lot has been said about RA 4200 but a thorny issue has been the admissibility of wiretapped material.

Let us try to start from the indisputable.

1. The Bill of Rights (Section 3 (1) and (2) of Article III of the 1987 Constitution) expressly provides that evidence acquired in violation of privacy of communication and correspondence shall be inadmissible except if acquired as provided by law.
2. RA 4200, otherwise known as the Anti-Wiretapping Law, authorizes the use of wiretapping and other similar methods provided the following is observed:

Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence.

The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed.

Now, let us go to the questions.

• Is the wiretapped material admissible as evidence against the wiretapper?

Yes.

• Can the basis of that be found in RA 4200?

No.

DJB of Philippine Commentary argues otherwise. He argues that the basis can be found in Section 3. He says:

Most people misinterpreted the meaning of Court Orders as being valid only when they are issued BEFORE a wiretapping is done. But that is for legitimate wiretapping by the authorities, such as in kidnapping cases. A judge would never give a foreign spy this type of authorization!

But Section 3 says "before, during or after" a crime against national security is committed, Court orders may be issued authorizing "any of the acts" prohibited in Sections 1 and 2, such as possessing, copying and distributing the same.

Look how else can we prosecute real spies if we can NEVER use their illegally wiretapped products because they were illegally wiretapped.

As long as a Court says we can, we can!

That's an erroneous reading of the law. The Court Order mentioned in Section 3 of RA 4200 only pertains to acquisition of evidence through wiretapping and similar means and excludes the possession and distribution of already existing illegal wiretapped material DJB is alluding to. He missed the fact that the provision qualifies the issuance of such order on the following:

1. that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed;
2. that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and
3. that there are no other means readily available for obtaining such evidence.

How can possession and distribution of illegally wiretapped material pass the requirement No. 2 and 3? Once an illegal wiretap, always an illegal wiretap. It cannot be cured.

• So, what's the basis of the position that wiretapped material can be used against the wiretapper?

Because the prohibition of admitting wiretapped material as evidence against the wiretapper was not intended under RA 4200. It is a law intended to protect the privacy of communication and correspondence. Contrary to the letter of the law, it was not intended to protect everyone, including the person who violates it. Basic of statutory construction, "stay away from interpreting the law in a way that makes the law absurd." It is the person who was wiretapped that is afforded protection because it is his right that was violated.

DJB argues this wise:

Suppose a real spy practices espionage and tries to leave the country bearing his illegally wiretapped recordings. He is accidentally detained at the airport and is caught with the illegally wiretapped material.

The material contains scandalous conversations of govt officials, editors, publishers, private people, etc. and is prima facie evidence of the spy's violations of Section 1 of ra4200.

If the policemen decide to sell the material to the media or make lots of copies and give them away, I think they would be guilty of Section 2 violations of ra 4200 for using the illegally wiretapped materials.

But if the police submit this illegally wiretapped material to an RTC judge who authorizes them to use it as evidence in a case of espionage, this allows them to legally use the illegally wiretapped material.

Now, did the judge "CURE" (your term) the illegally wiretapped material.

Given this example, only a stupid, stupid spy would conspicuously label "wiretapped materials" as such. If the customs police or other law enforcement officer would play a CD on the suspicion that it is wiretapped material, it would constitute an illegal search. Thus, it would still be inadmissible as evidence.

It is also erroneous to say that law enforcement officers need to ask permission from the Court to use wiretapped materials in prosecuting the wiretapper. Such officer would be using it to prove that the anti-wiretapping law was violated, not to prove whatever is contained in the CD. The contents, in this instance, would be irrelevant. If the acquired wiretapped CDs, for example, were obtained through a valid search warrant or in those instances that justify a search without a warrant, why would the law enforcement officer need to ask from the Court permission to use them? Of course, they are admissible. The Court, on the other hand, is obligated to issue orders that would protect the rights of those who were wiretapped, to include hiding their identity from the public.

"Play It Again, Garci"

Two lawyers weighed in on the issue of admissibility of the so-called "Garci tapes" as evidence on the revived Senate investigations on the wiretapping scandal.

Prof. Harry Roque and Atty. Edwin Lacierda argue that the Senate can accept the tapes as evidence, both heavily relying on the Supreme Court pronouncement in the case of Gaanan vs IAC.

Prof. Roque wrote:

Gaanan vs. Intermediate Appellate Court, [145 SCRA 112 (1986)]: the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, following the principle that "penal statutes must be construed strictly.”

The “Hello Garci” tape is a taped conversation conducted through cellular phones. The wording of the prohibition is relative to tapping “any wire or cable”, and cellular technology does away with both wires and cables. Thus, RA 4200 is inapplicable.

On the other hand, Atty. Lacierda averred that:

It must be remembered that at the time of its enactment, there were no wireless cellular or cordless phones in existence. Since no such equipment existed, R. A. No. 4200 could not be stretched to include "wiretapping" of cell phone conversations. In addition to this, in 1986, the Supreme Court, in the case of GAANAN v. INTERMEDIATE APPELLATE COURT, defined "device" to secretly overhear or record conversations as an instrument that taps the main line of a telephone. In other words, R. A. No. 4200 was envisioned to apply only to telephone lines or what we call now in this wireless age as "landlines". The law is silent on cordless and cellular phones.

With all due respect, I submit that their reliance on the abovementioned case is misplaced.

First and foremost, Gaanan vs IAC was not about admissibility of evidence. As the Supreme Court stated at the very outset of the decision:

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion.

Second, the gravamen of the offense/s defined by RA 4200 is the "act of using a device to secretly overhear, intercept, or record private communication or spoken word". While its short title says "Anti-Wiretapping Law", its title is actually "An Act to Prohibit Wiretapping and Other Violations of the Privacy of Communication, And for Other Purposes".

Parsing Section 1 of RA 4200, there are two type of acts that are made punishable under it:

• to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word
• to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described

The first is your conventional telephone wiretap. The second, on the other hand, involves the use of covert listening devices more commonly known as "bugs". They are absolutely correct that when Congress passed RA 4200, the legislators could not have envisioned the use of cellphones which have no wires or cables which in effect negates "wiretapping".

However, the wisdom of the authors of the law is on the second way of committing a violation of Section 1, RA 4200, i.e., the use of covert listening devices "however otherwise described". By overhearing, intercepting or recording the private communication or spoken word, the cellphone acts as the covert listening device. It is technically a "bug". Thus, while a cellphone may not be "wiretapped", tapping into it makes it a covert listening device (as a side note, the geeks at the FBI have reportedly been able to develop the capability to convert a cellphone into a conventional "bug" by remotely activating the phone's microphones and transmitting audio within the vicinity of the phone).

Third, even admitting for the sake of argument that RA 4200 does not cover tapping cellphones, it does not make it automatically legal. It merely says that the act is not punishable under such law. For the tapes to be validly admitted as evidence before the Senate, it must pass the muster of the constitutional provision that says:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Clearly, a violation of the privacy of communication and correspondence can only be admitted as evidence if it was acquired as prescribed by law. Since no law authorizes the act of overhearing, intercepting and recording of private communication over cellphones, any evidence acquired through such acts, though they may not be criminal (admitting for the sake of argument that they are not covered by RA 4200), are still inadmissible. Not all matters that are considered of public interest justify the setting aside of constitutional rights. There must be a law!

I can only imagine of one scenario where such tapes will be accepted as evidence, i.e., in a criminal proceeding against the wiretapper as object evidence where the content shall be irrelevant.

In contrast to the paeans of praise The Philippine Commentary is heaping on Sen. Chiz Escudero, I think he got swatted like a pesky fly by Brenda. Chiz was basically arguing that the tapes be conditionally admitted as evidence subject to a declaration of inadmissibility in case it is subsequently proven to be wiretapped material. What? In effect, he suggests that the Senate accept the tapes, play it, analyze it, turn it upside down, and when they are sure that it is wiretapped, declare that it is inadmissible as evidence. Doble comes to the Senate presenting alleged wiretapped material and the Senate says, "Ows, baka naman spliced lang sa studio yan? Hane, tingnan natin." Such sophistry, Chiz! No wonder DJB is beginning to worship at your feet.

Frankly, I cannot understand why the opposition senators insist on playing the tapes. Everybody who cared to hear it has already done so. An inquiry in aid of legislation that intends to prevent or discourage "wiretapping" need not go into the contents of the tape. They need to ask Doble who he did it with, how it is done, with the help of whom, how extensive is the operation, who orders it, etc. They will not find the answers to such questions listening to Gloria telling Garci, "Yung dagdag, yung dagdag."

If they want to go back to the electoral fraud issue, they better convince their counterparts at the Lower House to impeach her.

"SB 1862: A Slippery Slope" Part 1

Senate Bill 1862 seeks to provide a fixed term for the CSAFP and major service commanders of the AFP. Originally introduced as Senate Bill 1284, after committee hearings it was substituted with SB 1862 which is a result of a merger of SB 1284 and SB 67 of Sen Loi Estrada which intended that no officer be appointed as CSAFP when he has less than a year in the active service. It also includes the qualification that the CSAFP and the major service commanders "can only be removed for cause."

The objectives of the bill, according to its principal sponsor Sen. Biazon, are as follows:

1. To prevent the trivialization of the position of the Chief of Staff thereby preserving its integrity; and
   
2. To provide stability to the leadership of the Armed Forces of the Philippines by fixing the duration of the term of corps leadership so as to ensure continuity and consistency in the formulation and implementation of policies and programs.
   

I am afraid the legislation might have unintended consequences. This is a piece of legislation too preoccupied with the present, it disregards the future.

In intending to depoliticize processes concerning the armed forces, it might undermine the principle of civilian control of the military. In attempting to make the armed forces apolitical, we are courting them to throw their hat into the political ring. In attempting to insulate the armed forces from politics, it might lead to an armed forces who has a separate definition of "national interest" from the civilian authorities.

In the book "The Man on Horseback", Samuel Finer avers that:

"The moment the military draws this distinction between national interest and the government in power, they begin to invent their own private notion of national interest, and from this it is only a skip to the constrained substitution of this view for that of the civilian government; and this is precisely what we have defined as the very meaning of 'military intervention'."

My position that making the CSAFP a statutory position with a fixed term clashes with the principle of civilian control of the military rests on the fact that the CSAFP remains in the chain of command of the AFP. Reference has been made in the Senate deliberation proceedings to the Nichols-Goldwater Act of 1986 which reorganized the US armed forces following the slew of debacles it encountered, primarily concerning inter-service rivalry and service inter-operability. The said law prescribes a term of office for the Joint Chiefs of Staff and limits the US President's choice for the position to the major service commanders (chiefs of staff), vice chairmen of the Joint Chief of Staff and the unified commands (Centcom, CPAC, etc).

There is, however, one very glaring difference. The Joint Chief of Staff has no operational command of the troops. He is not part of the chain of command. Without authorization from the President or the Secretary of Defense, he cannot command the troops on the ground on his own authority. He is, however, not powerless. He is the most influential military man on the President's round table. And this is why many consider that the Nichols-Goldwater Act makes the Joint Chief of Staff too powerful. If he can monopolize the President's ear, he is the kingmaker!

Contrast that situation here. The CSAFP and the service commanders retain their position in the chain of command. There is a unified commander in the field but I do not know of any operational guideline that straightens out the matter of accountability and conflicting orders.

Now, if the CSAFP already exercises operational command of the troops, is the senior military adviser of the President, and with the subject bill, equipped with a fixed term, what are the consequences? Further, as the proposed law intends, he can only be removed "for cause" which the proposed law strangely fails to provide.

At the center of this question lies the principle of civilian control of the military. At the outset, let me make it clear that this principle is not the same as the principle of "civilian authority is supreme over the military". The former is only a component of the latter. The former emanates from the so-called "commander-in-chief powers" of the President. The 1987 Constitution makes the President the sole entity who has operational command and control of the troops.

So, what happens when the CSAFP disagrees with the President over a matter of policy or strategy, even privately? Who wins? Is this a "cause" that would justify getting fired?

If the President replaces or fires the CSAFP, he would be opening himself/herself to accusations that he/she is attempting to subvert the integrity of the armed forces. Under the proposed law, the burden of proving that the termination or replacement of the CSAFP was for a legal cause would be upon the President. Every action or omission of the President will be scrutinized and analyzed for politicking. What we will then have is a President who will have to tiptoe around all issues concerning the military. The President is virtually a hostage.