Hal: FLASH! on Waco; Shane Johns "not responsible" for computer misuse

                              Hal Pepinsky
                             October 8, 1993


My goodness, I haven't opened my diary to make an entry since last month.
I was amused to read continuing irritation at my posting-chutzbah, turning
into wry wonder at whether I wasn't the "2001" computer-gone-insane, just
as I became too preoccupied with other things here--notably with two
pretty intense classes--and there--notably that perceptual control
theorists were forming McPhail, Powers and Tucker's "ring of fifteen"
around me on their net, suddenly taking me seriously and asking me to
account for myself.

Thank you, Marty Schwartz, for proposing a "digest" of what's to come, for
in all, this will be a long entry. Read/delete what you will. I need to
reflect occasionally, and I've made this morning available to myself to do
it. There's a lot happening I want to think out loud about. I won't
cover it all, but I'll touch several topics that are pretty hot for me
right now.

Graeme Newman on UNCJIN-L asked what we thought about Janet Reno and Waco.
I think the whole media/USG portrayal of events in Waco is surreal,
because of a video tape I have seen, especially footage of the ATF and FBI
assaults which was somehow fed to all the networks, which I will describe
in the next section of this entry. My wife is one of my freest critics.
A former P202 (big class) student had lent me her dub of the video. I
previewed it and promptly showed it in class. Linda Thompson, who made
the video and ended her Indianapolis law practice to found the American
Justice Federation, promised to come to class the following period to tell
us stories of a CIA/gun/drug-running cult of people who want to turn the
world into their police state. She didn't show. I was told she feared
too much for her life to make public appearances now that the
Treasury/Justice reports were coming out; she was due to appear on Hard
Copy last Monday and did not. So when the original of the video I'd
ordered from the Am.Jus.Fed. came in the mail yesterday, Jill suggested we
watch it together. This time, Jill saw the awesome connotations of the
video more strikingly than I did. Check it out.

Yesterday, I represented Shane Johns before the Dean of Student's hearing
commission--a rehearing on charges that Shane made unauthorized use of
computer accounts in January and February 1993. Shane asked that the
hearing be open. At his request we made sure an Indiana Daily Student
reporter was there. The hearing last a full three hours. Deliberations
were interrupted by the Dean of Students' representative with a newly
discovered piece of information indicating that Shane might be a liar.
The deliberations last over half an hour. The commission voted 2-1 that
Shane was "not responsible" for any personal misconduct. I felt relieved
and exhausted, emotionally drained. I'll explain below at some length,
and especially for the perceptual control theorists who have been asking
whether I really use a model, I'll apply my model of peacemaking to
analyze my own ambivalence over the result.

I got back to the office yesterday afternoon to meet another student paper
reporter and journalism graduate student to talk about Bloomington's
"gang" problem. The phone rang. For the first time in my life I am being
called to jury duty. It was only about three years ago that my name was
drawn for the first time. I wrote on my questionnaire that I am
conscientiously opposed to passing judgment on people, which happens to be
true. (Jill tells me not to talk about it; think of what I could do on a
jury!) I returned from vacation this summer to find a new questionnaire.
Item 23 had been added. This time I got to check off a box indicating
that I remain conscientiously opposed to passing judgment on others. I
thought I was home free. Not so. I delayed my call, but was assured I
would appear. Actually, I think I could do a pretty good job of weighing
evidence in a civil suit. I had the clerk in stitches, and she told me
she thought criminal defense lawyers would love me (does she know about my
past?). Still, I don't expect to survive any voir dire.


That's the title of Linda Thompson's video. Linda has just changed her
phone system so that I can't get past machines. I'm irritated by her.
The one time I did talk with her on the phone (when she agreed to come to
my class), she told me that she had never approved of conspiracy theories.
In Waco she carried a press card (for an e-mail news service) and sought
to represent Branch Davidians. She tried getting into and out of the
compound, and was at one point detained incommunicado for two days. What
astounded and angered her was the media shut-down on running the video
footage of the assaults. Now she fears for her life.

I know the feeling of shock (that's the word several students used about
seeing the video) from first confronting organized murder in law
enforcement or the military. Since no one has ever let you notice the
phenomenon before, all you have to fall back on are our myths about how
organized criminals work. If everyone who might know or find out the
truth seems to be blocking inquiry, you look for evil culprits and
apperceive plots. That's what happened to me when Bill Breeden opened my
eyes to state crime about ten years ago.

Now I remain pretty agnostic about precisely is guilty of doing what to
whom. If I can't even really know what's going on with some poor
defendant powerless to resist inquiry, I'm not going to know beyond a
reasonable doubt who is doing what to whom high in the power ether.

But this I do know: The silence on the issues raised by the footage and
the video is deafening. We're all allowing ourselves to believe that the
issue is whether it was a military blunder to assault the compound when
Koresh knew the ATF was coming, and for the FBI to spray CS gas (which my
colleague Alex Weiss has heard happens to be highly flammable in spray
form) into the living quarters of a Book of Revelations cult. Bullshit.
Here's what the tape shows of the two attacks.

The tape shows the ATF assault from a helicopter. One diversionary team
is in front of the compound, while another climbs a pair of ladders onto
a second-story roof on the side. The diversionary team is shown firing.
They have two automatic weapons going. There is no return fire.

After a sequence of ladder climbing in which one agent appears
inadvertently to shoot himself in the leg as he reaches for his pistol,
you see four ATF agents on the left up another ladder to a third-floor
roof. One agent lies up the roof from a window with a black blanket
tacked onto it, prone, semi-automatic rifle at the ready, while the other
three tear at the blanket, toss in a smoke grenade, fire and enter one at
a time and fire again with no sign of return fire. There's a break Linda
announces was in the network feeds. The fourth agent is now standing at
the window. He pulls back the blanket and without looking tosses what
appears to be a smoke grenade into the room into which the other three
agents had gone. Then he sticks the barrel of his gun between the blanket
and the window frame and fires into the room. Return fire comes out the
wall to his left. At one point three bulletholes appear simultaneously.
The fourth agent is hit on the back of his helmet, falls down, gets up
rubbing his head and scampers down the ladder. Linda announces that the
three agents inside were three of the four killed in the raid, and that
all three had guarded Clinton at his inaugural. That's where Jill began
feeling events were more sinister than I had really allowed myself to
imagine seriously.

At the Treasury press conference releasing the report on the ATF raid,
which I watched all the way through on C-Span, senior White House
correspondent Mary McCrory referred to a "videotape that is floating
around" suggesting that "three of the four ATF agents were killed by
friendly fire." Bentsen simply said that this was not true and referred
reporters to details in the report, which he assured us the report said
better than he could recall. I've asked my local representative for a
copy of that report, and for the Justice Dept. report on the aftermath of
the initial raid, due out last Tuesday, now due out today. I read
Newsweek's discussion of the report. There's no mention of the "friendly
fire" issue, sure enough.

The final raid footage begins with scenes from over the bunker in which
many compound residents died, which in fact was underground outside the
compound. You are reminded, per a London Times report, that the FBI could
see and hear everyone in the compound at all times. (Isn't technology
wonderful?) First you see a tank knocking the house over the entrance to
the tunnel leading to the compound off its foundations. Then you see
agents climbing out of the tunnel to the bunker just outside the compound,
getting into an armored carrier. Then you see smoke pouring out of the
bunker. Then you see a "tank retriever" smashing a house apart at its
stairwell (not punching small holes in the wall for CS canisters). Then
you see a tank to its left, over the entrance to the bunker, smashing the
stairwell, with a large gas jet shooting flame from a barrel on its nose.
Then just as smoke billows out of a second-story window, you see a tank
with someone on it taking off a hood. Then you see someone else jump down
off the roof and slowly, calmly walk away, taking off a hood. Then you
see tanks pushing debris INTO the fire as it burns down. Then you see
agents walking calmly all through the ruins (no fear of exploding
ammunition there).

If you want to get the video, the Amer. Jus. Fed. charges $19.95 plus $3
shipping and handling. You can order by credit card at 800-758-0308, or
by check to Waco, POB 14, Beech Grove, IN 46107 USA. You can also order,
sign up for Linda's "militia" for defense of civil rights, and choose from
among an array of touchtone numbers, at 317-780-5200.


Let me organize this analysis in the sequence lawyers follow writing
briefs and opinions--first the facts, then the proceedings, then my
analysis and conclusion.

The Facts--

This I believe: Sometime before midnight last January 31, someone used a
consultant password to enter an account designed for use by consultants in
the library. There s/he set up an anonymous guest account on an FSP
server (like an FTP server but faster and with expanded capabilities).
There some placed a message asking for pictures of naked guys,
specifically guys aged 13-17. Someone also advertised the INTERNET
availability of the anonymous server. There's no telling when this was
done. A consultant read the INTERNET ad, checked the server account,
found the message, and took it to the coordinator on duty. No one ever
sent pictures as requested. She discovered the password to the account
had been changed after setting it up. She shut the account down. Then
the same message and arrangement was found at about noon the next day on
another account which consultants hadn't been using much for about month.
It was left open to see who might enter it. No one did. There was a log-
in to the latter consultant account which almost surely was by Shane's
personal account off a modem in the cluster in Shane's dorm (Shane was the
only consultant who lived there; there he used his own pc in his room).
That log-in lasted from 16:03 to 16:03. Shane denies he made that log-in,
or had any involvement in any of this. We both suspect the same flamingly
homophobic consultant of using the password sniffer he had bragged about
to get Shane's password and log into the scene of the "crime." A
consultant tipped him off Sunday night that he was under suspicion for
having "posted pornography" (vs. a request for pornography, which is not
an offense). He logged into the publicly accessible directory listing of
files in the first account, which was found in his room by police
executing a search warrant on February 9.

Shane had been fired a year earlier for insubordination, which consisted
of protesting being forced to dismantle a MUD server he was using on his
own time to program virtual reality machines. I represented him at an
appeal where he won reinstatement on grounds that insubordination was too
vague a violation of work rules to result in summary dismissal. That
fall, he and other consultants were put on notice that they were employees
at will and could be dismissed at any time for any reason. Consultants
blamed this notice on Shane. That fall, too, Shane decided on his own to
set up a gay/lesbian/bisexual BBS. He had begun advertising it just
before the offending message was discovered. He had noticed that some
consultants were making a point of avoiding him. The search turned up
computer records of his requests for pictures of "teenage boys" for the
adult-subscriber portion of his BBS. Shane knows full well that law
enforcement monitors such requests, monitors his BBS routinely to remove
illegal or offensive material, and understands clearly that "teenage"
means at least eighteen.

Proceedings below:

The supervisor of the abused accounts referred the matter to the IUPD, who
sent a detective who prides himself on knowing computers. The one log-in
account he could identify was that one log-in on Shane's account, coming
from the computer cluster in his dorm. On this basis, the next thing
Shane knew, the detective and another officer showed up at his dorm room,
taking Shane's hard drive and all the printouts they could find. Three
days later a judge issued a warrant for Shane's arrest on $1,000 bond for
misdemeanor computer trespass. The detective's report was, meanwhile,
headed "obscene communication" and mentioned that he had tried without
luck to bring the FBI into the case. The local judge's schedule indicates
that first misdemeanor arrestees are normally to be released on own
recognizance. I showed up at Shane's initial appearance to vouch for him,
and to make sure the judge assigned him a public defender. The judge and
prosecutor believed Shane to be an ex-employee who was disgruntled about
having lost his job. I told them I personally knew this not to be true.
The bail remains. Shane has the public defender, who alternately with the
prosecutor has requested continuances on grounds of being unprepared. The
prosecutor has told the pd that he isn't sure the police report states any
viable criminal charge, but says he hasn't yet gotten around to looking
carefully at the file. I know this scene well. Once a defendant has
requested a jury trial and the evidence seems specious, where the police
are after a "bad guy," the prosecutor waits for the year+defendant's
continuances to expire before abruptly dropping the charges. Yesterday I
called the pd to tell him about the outcome of the hearing. The pd said
he would call the prosecutor and suggest he check with that accounts
supervisor I mentioned to see whether the charge should not be dropped
now. Prosecutor candidate David Schalk has offered to enter a pro bono
appearance to meet with the prosecutor and press for dismissal if needed.
For now we wait...

Later in February, Shane was asked to meet with his supervisors at UCS hq.
The director of UCS led me around until we found the meeting in progress.
The account supervisor was not there, but managers from level below him to
three levels above him were there, persuading Shane to understand why, for
the sake of UCS's image, he had to agree to be suspended with pay from his
job. At my urging, one manager proposed a compromise: UCS would call
this a "leave of absence" rather than a "suspension." Shane said he
didn't feel much like coming to work anyway. They assured him that his
job performance rating was above average, that they knew nothing of
anything he had done wrong, and they hoped he'd soon be vindicated and
back on the job.

Then UCS discovered it violates state law to pay a "ghost employee." So
Shane went through the semester with no pay, owing a friend for the cash
bail he had put up, knowing he could not if this continued afford to
return to school for his senior year this fall. (Instead, he's working
full-time as a night clerk at a local motel.) Shane filed a complaint
against UCS and appointed me his adviser. To make a long frustrating
story short, Shane, the UCS director and I hammered out a settlement we
signed off in August. Shane got his back for the spring (minus a big tax-
withholding amount), and in consultation with Shane and the UCS director,
I drafted an arbitration procedure to determine whether Shane should have
been taken off the job and whether, how he should be reinstated if at all,
and how much further back pay he is owed by that time if any. (Meanwhile,
last spring, UCS suddenly announced that henceforth employees would be
hired just one semester at a time, subject to rehiring.) The chair of the
Academic Computing Policy Committee has thus far found two computer-
literate faculty members willing to be on the arbitrator list. Shane
agrees I should ask the chair who the two are, and if we don't object to
either, we can let UCS strike one of the two names without our striking a
third, whom the chair has yet to find. So for now we wait and see...

Anytime police make a campus-related arrest of a student, the Dean of
Students routinely considers whether to initiate proceedings for
disciplinary misconduct. Last year (though it is not yet incorporated
into the Code of Student Ethics on student disciplinary procedures), the
Dean of Students decided to create a campuswide student "judicial board"
(modeled after those in dorms) to do the Dean of Students' part of the
inquiry into such cases. They held a 4-1/2-hour hearing last April. I
was permitted as Shane's adviser to listen but not talk. Shane was found
"responsible" for unauthorized use of computer accounts. The presiding
officer explained to Shane that the board had decided, "You are the kind
of person who would do this."

Yesterday the commission reheard the case. I had been urging the Dean of
Students adviser to give Shane particular notice of "The date, time, and
place of the alleged offense, including a summary of the evidence upon
which the charges are based..." instead of notifying him simply that he
was charged with unspecified unauthorized use of computer accounts over a
two-month period. The adviser responded that the charge was described in
the thirteen-page police report he had enclosed with the notice.
Eventually he highlighted eleven passages in the report to give us better

Yesterday's hearing--

At the outset yesterday, the commission agreed with the adviser that he
had specified the charges sufficiently, although they did then ask him for
more particulars before he began calling witnesses. The detective brought
in new charts of supplemental "circumstantial evidence," and the adviser
concluded that he had had to weigh various indices of whether Shane was
telling him the truth, and had found enough reason for doubt to bring the
matter to the hearing commission. By this time, after Shane and I had
made more arguments on this and that than I care to recall (and vice versa
for the detective and the adviser), and after Shane had complained that
the adviser had "treated me like a prosecutor," I made two points: First
that there was no evidence whatsoever as to who had set up the anonymous
accounts, placed the message or advertised it; that the less-than-one-
minute log-in was not unauthorized on its face even if Shane had done it,
which he had denied; that there was nothing wrong with the directory
printout found in his room. Second that although the adviser had just
told the commission that the "clear and convincing" burden of proof in the
Code was something you wouldn't find in any court, that it was indeed a
higher burden of proof than preponderance of the evidence regularly found
in civil and administrative law.

I mentioned that the adviser, evidently angry that Shane had impugned his
professionalism in closing remarks, brought us back to show the commission
a basketball schedule indicating there was no basketball game during the
time of that 16:03 log-in as Shane now recalled (and reported that a
friend had reminded him he had been in church with the friend at the time,
not at the game anyway). He didn't see why Shane hadn't called the friend
as an alibi witness unless Shane wanted to hide the truth. I took
responsibility for having advised Shane not to bother, on grounds that in
my view in the scheme of the evidence, this shouldn't become a major
point. Woops!

I've already described the result. Two of the commission members shook
Shane's hand and mine afterwards; the third walked away. When we had
walked into to hear the commission's decision, none of them would look up
at us, which from past experience sent a shudder through me. Shane felt,
as he put it, good about the result but not grateful. I felt tired and
kind of shitty myself. After a relaxing evening with Jill and a good
night's sleep, I feel much better thank you.

The analysis--

I've just put off going to sing at the adult daycare center in town (a
weekly event) for an hour to finish this and get it out, mostly to give
people something other than the issues posed by the Justice Dept. report
on Waco to think about. So I'll be brief here for now, but will reflect
more later I'm sure.

Faced with a conflict, for instance as to what Shane did nor did not do,
we learn or are born with--I'm agnostic on which--templates upon which to
choreograph our responses. One of these templates models how to become
secure against enemies of social order. The reference signals in this
model are what journalists, interestingly, call "authoritative sources,"
in these cases the Treasury and Justice Departments on the one hand, and
an IU police detective backed up by two judges on the other. Your job if
you care about security is to give authority figures the benefit of the
doubt, to back them up as one might be expected to cover for one's partner
on police patrol, to empathize first and foremost with their version of
events, and to question the reliability of anyone who stands in their
path. Howard Zinn calls this model Machiavellian realism. The hard part
in this model is deciding which side of a conflict represents the good
guys and which represents the bad guys. Within this model, there's a
heavy preponderance of evidence represented by anything bad the rightful
authority figure has to say about the subject of his or her complaint.
The character of the accused automatically becomes one's focus of

The other template, for what I call peacemaking, presumes that getting
into who's reliable, as in witch trials, only obscures reliable evidence
of who did what to whom. The evidence comes from treating all parties to
conflict as authoritative. In the process, one establishes that there's
a point at which what a person believes is not corroborated by anything
anyone can describe more than vaguely (as in, the fact that a basketball
game did not occur is just an example of the many--unspecified--things
Shane has done which have drawn his reliability into question). I
acknowledge that the hard reality of such inquiry is humility: beyond a
point one becomes acutely aware of one's ignorance of who really did what
to whom. This is what classically emerges in what mediation theorists
call "confrontation" of conflict. If by then in their interaction they
have fallen into the pattern of interaction I call "democratic" or
"tetrahedronal," discussion between parties takes off on a creative
tangent of its own, as anger and recrimination turn to trust. I've
offered to buy lunch for the Dean of Students adviser now that the hearing
is over. I made a bid to get past recrimination by reassuring him that I
do not at all question his good will toward Shane and conscientious job of
handing the case. Rather, I believe he got stuck in the other template,
and I hope he can sometime (perhaps long after lunch) see what is to be
gained by my approach to fact-finding. If he doesn't, I tried. Part of
my bad feeling yesterday was in recognizing that victory in the hearing
was thus far pretty hollow; the probation the j-board had given Shane was
no big deal, and the hearing commission made it pretty clear that they
were skeptical of Shane's denials. Nor do they see elemental due process
as I do. Another was what we try to validate these days by calling it
post-traumatic shock syndrome. I flashed back to how the j-board had
pronounced Shane responsible, thought of how close we had come to the same
result this time and how grudgingly the commission let Shane off the hook,
and shuddered to think that any little thing I might have said or not
said, or even that I had sat beside the apparently dissenting commission
member and not given her much eye contact, could have left Shane doubly
condemned. Over lunch afterwards I told Shane I never wanted to go
through such a hearing for anyone again. He told me he hoped I would go
anyway if some other worthy abuse survivor came to me. I probably would
and will...

Over time and across settings, one can begin to characterize probabilities
that this or that person will adopt the first or second template when
faced in daily life with the choice of deferring to authority (one kind of
super-reference signal) or confronting conflict. The most common "enemy"
I face, as when I post these diary entries, is people telling me, in
effect, you have no business getting me to discuss this issue with you.
If I listen for opportunities to begin harmonizing with my antagonists on
terms I can accept, there's a chance I can draw them into letting their
fears of defying authority or confronting conflict give way to the
satisfaction of trusting one's antagonists. That's what Roger Fisher
calles "getting to yes."

Even if one doesn't get to yes with this or that antagonist, I find that
bids at reconciliation create peaceful interaction in all kinds of
surprising places. For instance, Shane tells me that an anonymous
administrator at IU has recently donated a substantial amount to his BBS,
and that criminologists from UNCJIN-L have subscribed and wished him well.
Get this: I have no idea who is going to read this or any other message,
still less what s/he might do with it. When I leave the response to open
confrontation of issues (by example, if not by direct personal
involvement) to chance and spread the issue as widely as I can (notably on
e-mail, but also when I sing), I become privileged to enjoy affirmation of
community on a scale people all around me caught in the other template
despair of enjoying. I'm not alone, nor does my experience enjoying
fruits of using the second template mean there's anything extraordinary
about my human constitution. All it is is what happens to any of us who
uses the second model to respond to conflict. One of my things happens to
be enjoying writing prose about it. (I can't write poetry, songs or draw
pictures worth a damn.) All I'm doing in this diary is illustrating what
I get when I apply my theory of peacemaking in the face of violence.