🚀 go-pugleaf

Gordon Cook wrote:

>Thanks to monumental bungling on the part of the US Department of Justice,
>Attorney William Bode is almost assured, according to knowlegeable
>observers of receiving between 20 and 30% of the 45 million plus dollars
>collected by NSI at the behest of NSF for support of the Internet's
>intellectual infrastructure.  This will be Bode's "fee" for engineering his
>successful bid to overturn the 'legality" of the intellectual
>infrastructure fund.  Judge Hogan yesterday, on the basis of limited
>information presented to him by the US Department of Justice Attorney
>assigned to defend the NSF, quite properly ruled that it was an illegal
>tax.

Page:
        We will never know what the process would have been had full
disclosure been done.  It's got to be done right or results like this can
be expected.
>
Cook:
>THE ONLY PROBLEM IS that Judge Hogan ruled on the basis of *inadequate and
>partial* information.  For example, not knowing anything of NSF Inspector
>General's Linda Sundro's checkered history of running roughshod over NSF
>policy making, the Judge cited her proposal for NSF to treat domain names
>as a money making excise tax function for the federal treasury.  The record
>before him listed the Sundro paper as part of NSF policy when, in fact, it
>was rejected by NSF management almost exactly a year ago.  Hogan didn't
>know that because the Justice Department Attorney representing NSF didn't
>do her home work and didn't tell him that.

Page:
        When a person represents the People and the Government of the U.S.
if they are not educated in the history of a case like this (hurdle #1), it
is the immediate superiors who are responsible, the chain of responsibility
rolls up from the bottom.  Similar to the dilution of U.S. govt oversight
of the IANA function's heading off into new directions (MoU), the NSF's
movement into the IIIF shows that one must always go back to reference the
fundamental documents (Constitution) when creating new policy decisions
which involve money.  If there are no employees of the USG who are willing
to invest the time to follow the trail back to the "root" of the law, then
it is "the people" who lose.  It appears to be another case of a
"Structural Failure", which is the collective failure of many individuals
to act in a manner consistent with years and years of previous legal
foundation building, focused on a new set of circumstances.  (Internet
medium)

Cook:
>Indeed she made no adequate attempt to defend her client.  Did not do so in
>January before the first ruling.  Nor did she do so at any later date, even
>though her superiors had been fully warned in advance by numerous high
>officials of Congress and Administration.  We have been writing about these
>issues in great detail for over a year.  We have watched this develop in
>great detail.  We know as few outsiders what happened and why.  We know
>that NSF was not a renegade agency and that it had reason and documentable
>support for what it did with the infrastructure fund.  We know that the US
>Department of Justice attorney should have sat down with the NSF as her
>client and that she should have worked with the people responsible to
>understand what they had done and why.  We know that she did not do that.
>What we do not know is **WHY.**  Was in just incompetence or inattention to
>intervention by high officials OR was it intentional lack of support on
>justices part?  This has been such an egregious failure with substantial
>money and reputations of agencies at stake that it is hard to believe that
>it was incompetence at both the representational level and at the
>management level in the Office of the Attorney General.

Page:
        The same questions about "incompetence or inattention to
intervention" was asked by many who were on the sidelines watching NSF's
inaction with respect to the open and free market activities of tax paying
citizens who were responding with entrepreneurial zeal to IANA's interest
in a "competitive DNS".  Again, it appears to be a structural failure,
which is really the failure of many individuals to 1) understand what is
happening, 2) take decisive action, 3) assume proactive leadership.  If one
considers that the hierarchical structure of the USG inhibits the taking of
intellectual responsibility by the NSF or DOJ participants beyond the
borders of their particular job requirements, one can more clearly
understand that the failure is systemic.

Cook:
>When early in February the judge enjoined the spending of the funds, it was
>a signal to folk around town that NSF had a problem.  The Chairs of the
>relevant House and Senate Committees wrote Justice and said "do your
>homework better this time."  Two individuals high in the executive branch
>informed us that they were telling Justice that there was a problem in the
>making because it had not given NSF adequate legal representation before
>the court.  In other words that the court had only a fraction of the data
>it needed in order to judge whether NSF had acted properly.  As the matter
>moved closer to the March 17th court date, we were informed that the
>promised help was not being delivered.  On March 11th we faxed Janet Reno a
>complaint saying that we were aware of the problem.  That Justice was
>wittingly allowing a situation to fester that was detrimental to the
>Administration's Green Paper plans.  We warned that we would go public if
>Justice continued to let support of NSF slide.

Page:
        Your description of the inter-departmental communications of
different elements of the executive branch and the attempted orchestrations
by leadership of the legislative branch demonstrate the fundamental
*absence of education* across both branches and the stakes to be won or
lost. There appears to be no clarity of understanding nor a detailed
analysis of the issues at stake by the participatory players in the drama.
Reactive leadership is much different than proactive leadership.  To the
last person, there has been no demonstrated proactive leadership, only
reactive.

Cook:
>We know that Justice had every reason to have known that it was failing to
>do its duty in representing NSF.  We know that having been informed by the
>highest levels of the executive and legislative branches, it still took no
>action to remedy its deficient representation of NSF.  We know that our own
>threat on March 11th to expose its negligence after the fact had no effect.
>We know that a major part of the responsible Federal agency handling of
>Internet management has now been found by the courts to have been illegal.
>Again what we do not know is why, when it had been forewarned that this
>would happen, the US Department of Justice made no effort to forestall it.

Page:
While it appears to be emotionally important to find blame, the blame
appears systemic.  For fear of being in a position where one makes a wrong
decision in a high profile and very fundamental situation potentially
affecting every user of the Internet, who wants to risk their job or
career?  Only a few people have studied the combination of
techno/cultural/economic/network factors to be expert enough to make any
sort of policy or directive.  Again, there is an absence of visionary,
statemanship and leadership.

COOK:
>Our article on this subject from the May 98 COOK Report follows.
>
>US Department of Justice Fails NSF in Court
>
>March 17 Hearing Overview & Survey of Some DNS Court Actions - Magaziner
>Sells House: Pledges to Remain on Job
>
>Recent developments in the Internet governance disputes have been legal.
>They focus around the administration's inexplicable failure to get adequate
>representation - despite many warnings - for the NSF in the lawsuit by
>William Bode.  Those with the power (in theory at least) to get adequate
>representation into the courtroom on March 17th failed.

Page:   There has been a scramble to understand the problem and its impact
on the short term, but not its impact on the long term.  The focus has been
on stabilizing short term operations of the Net, not on the long term
implications, which require a foundation that will pass the test of law and
time.  The GP process has been a necessary step to buy time, which benefits
NSI (hence the stock market reward of an increase in their price), but the
foundation has not been presented as being solid yet.
>

COOK:
<SNIP>

>Will the Clinton
>Administration Defend Those Who Carry out its Policy?
>
>William Bode, in early February, won a preliminary injunction against
>disbursement of any monies from the NSF created Intellectual Infrastructure
>Fund.  He won it in no small part because the attorney sent to court on
>NSF's behalf by DOJ was not versed in the appropriate law.
>
>We pointed this out to some high administration officials who assured us
>that they were letting the Department of Justice know that the Bode case
>was one the government could ill afford to lose.  When queried, one
>responded that he had been calling DOJ, and added in surprise: you mean to
>say that they didn't pay any attention to our requests!?

PAGE:   It means that if the request does not come "down the chain of
command", that is instead it comes horizontally from someone who does not
impact one's immediate job, it gets viewed as being "less important" than
other short term "fires" which need to be put out NOW.  Again, if anyone
wanted to study the intra-organizational behavior of human beings and
compare it to inter-organizational behavior, it would be clear why the
failure to pay attention occurs.  The failure is in the human response to
an archaic structure (hierarchy) which serves no real purpose in an
Internetworked world. It sounds like it's been a while since Mr. Cook has
worked within a bureacracy.

COOK:
>When, as the March 17th date of the court hearing in the Bode suit drew
>closer, and we realized that NSF was not getting the help that it
>requested, we decided to try to apply some pressure directly to the DOJ and
>sent the following letter published in the accompanying side bar.  In it we
>suggested to Janet Reno that her department had failed to provide adequate
>counsel to the NSF, had failed to provide additional promised help.   We
>explained why we believed that DoJ had been derelict in its duty to the
>NSF. We said that its dereliction was threatening the operational stability
>of the network - should Bode win thanks to DoJ lack of support for NSF. We
>pointed out that DOJ could show its intent to rectify the situation by
>getting competent representation into the courtroom on March 17th.  We
>concluded that, if it did not, we would go public with our fax and accuse
>it of failing to act on behalf of the administration's Internet efforts
>even after it had been forewarned.

PAGE: Attempting to shame an entire Department like the DOJ seems to be an
exercise in futility, since there was clearly no "named" individual
point-person sticking their professional neck out into the line of fire
volunteering to be put in charge of the defense.  So, it is easy for
everyone to abdicate responsibility since the DOJ did not create the mess
in the first place.  An attitude of "they made their own bed, they can
sleep in it" is not unusual when it appears that in hindsight it is easier
to judge that the bed was made of thorns.  For several years it was clear
that the bed was a thorny one, yet the NSF's leaders never came forward to
exercise proactive leadership.

COOK:
>It took seven phones calls before we got the phone and fax number of the
>Executive Secretariat of the Attorney General.  They are (202) 514 4507 -
>fax in office of Janet Reno's executive secretary and (202) 514 2171 -
>phone for Reno's exec secretary. Another call provided confirmation that
>the fax had been read and forwarded the justice [Case] Management Division
>for action.

PAGE: More bureacratic paper-shuffling.
>

COOK:
>On the evening of March 17, after we had been briefed on what happened, we
>sent out the following to a few private recipients: Discouraging news.
>After my March 11 complaints I had word from two key administration
>officials that the Department of Justice was being told to provide quality
>legal support for NSF into Court today.  Such promises not withstanding,
>the same DOJ attorney that originally was sent to defend NSF showed up once
>again.  The attorney's defense was a disaster.  She had learned nothing
>from the previous time.

PAGE: The process is cleary one where the key administration officials are
telling DOJ to "put out the fire".  So, like the fire department, they
respond by sending in the nearest fire engine, which means the one that
responded to the fire the first time.  The path of least resistance wins
until proactive leadership is exerted.

COOK:
>Bode had his whole show prepared for sound bites rather than substance and
>was a better lawyer than the woman who represented the NSF. But, he clearly
>played to the press rather than the judge. Unfortunately, the NSF attorney
>from DOJ had only one line, no show prepared and no sound bites. And, she
>played to no one. It was embarrassing to see a lawyer so unfamiliar with
>the relevant issues that she couldn't explain the intended purpose of
>support awards; why the "Program Income" clause exists; what purpose it
>serves, or the logic behind what was done. These concepts are an absolutely
>necessary prerequisite to understanding what the NSF was doing with the
>Infrastructure Fund. All she could say was that NSF was authorized by A110
>to impose the fees but she couldn't provide or perhaps didn't understand
>the rationale.

PAGE: Two fire engines respond to the fire at exactly the same time, one
well-trained, one not so well trained.  Who ends up convincing the
neighbors that they should put out the fire? Sounds like the DOJ's
attorney/fireperson did not know how to fight neighborhood fires.

COOK:
>Bode was saying, "what NSF is doing is wrong" and she was saying "they
>apparently have the authority to do it. Because she didn't understand the
>whole thing herself she couldn't explain it. Basically, the government
>presented no coherent explanation of it's actions and was unable to answer
>concerns raised.

PAGE: How many attorney's besides Tony Rutkowski and Dan Steinberg could
have done the job?  If they were told to respond to the DNS fire?  Probably
not many, unless the leadership had specifically assigned them
responsibility months/years before.  Bode had the easy job because to the
casual observer, he had a case.  It was up to somebody to piece it
together, to reconstruct history, which meant digging into the details.

COOK:
>Of course the truth is that what NSF did was *NOT* wrong.  Unfortunately
>the government's was not adequately refreshed on the relevant laws and
>regulations.  When the judge, unsatisfied with Bode's explanation of the
>intellectual infrastructure fund, asked the government's attorney to defend
>NSF, she was basically unable to do so. The judge seemed uncomfortable with
>the government being unable to articulate what NSF had done and why.  Then
>still seeking a coherent sense of what had happened, the judge turned to
>the NSI attorney who did give the logical explanation of NSF's authorities
>and actions which should have come from the DOJ lawyer and did not.

PAGE: Who, other than the judge (or those in the position of power) know
what the truth is about NSF and whether it acted justly or wrongly?

COOK:
>Bode was given an opportunity to respond after NSI's presentation to the
>judge. He (Bode) opted for bombast rather than substance: "most scandalous
>contract in the history of the government" was a typical phrase.

PAGE: You are focusing on the form versus content.

COOK:
<SNIP>

>We had been told by those with the power (in theory at least) to get DoJ to
>act that DoJ action WOULD be forthcoming.  It was not.  This tends to
>undermine one's trust in those who are leading the show. No one who has
>dealt with Ira Magaziner questions his sincerity or good intentions.  The
>unanswered question is what indeed is his role?  Does he have the authority
>to back his good intentions with results?  Or is he just out in front being
>amiable and sincere while Kahin and Burr, unsupervised, impose their own
>ideas on the Internet.

PAGE: The fire department needs a Captain who knows how to fight fires of
this type.  There aren't many people who have the knowledge to be
qualified.

COOK:
>We hope this isn't true.  If it is, federal meddling in the Internet that
>will create such a mess that it will be left to two clueless policy wonks,
>Burr and Kahin to further. If this happens we may all safely guess that the
>results will benefit the traditional telcos. Furthermore, a muddled
>situation could turn out to be worth hundreds of billions of dollars to the
>LECs and IXCs.  Why? Because it would permit them to use their lawyers and
>cash to tie the Internet in knots staving off for many years the expansion
>of the kind of Internet technology that will swallow incumbent IXCs and
>incumbent LECS.

PAGE: Enlightened, knowledgeable involvement by persons versed in the
Constitution, language, networks, history, economics and human factors is
needed, but the wrong sort of "federal meddling" will do much more harm
than good.

Sincerely,
Stephen J. Page, Network Policy Consultant

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