About lawyers and spoliation

Jim Choate ravage at ssz.com
Fri Aug 3 05:45:37 PDT 2001



On Fri, 3 Aug 2001, Aimee Farr wrote:

> All we lawyer-types are saying is to engage the law in your problem-solving,
> it's in your threat model. Many of your "solutions" are 100%
> conflict-avoidance, or even ...conflict-ignorance. A strategic error. Where
> there is a corpus, there is a law to get it. You always PLAN FOR CONFLICT.
> Hence, we have _The Art Of War_ -- and not, _The Art Of Hiding_.

Truly you have missed the point of the work then...

A battle which doesn't have to be fought is a superior strategy. Defeating
your enemies mind, versus his armies, is a superior strategy. Attacking
where your enemy isn't is a superior strategy.

Only a naive grognard would head for the main point of resistance given
any alternative at all (including waiting until another day).
 
> Hiding or secrecy as a total strategy has historically been limited by the
> Rule Of Secrets/Least Safe Principle, and the equally-important "well,
> doesn't this look suspicious!" -- a rule of natural law and human
> disposition.

Which is after all why(!) we have things like the 4th and 5th...

Keep this line of thought up and you'll be where I am, C-A-C-L doesn't
work because of human nature.

> Crypto is not a person, object and asset invisibility machine.
                 ^
                 universal                    

> Until such a marvel comes to pass, stick to traditional wargaming.

I can tell you haven't, wargamed that is. Always be unconventional, do
what your opponent doesn't expect.


> 
> THE SITUATION:
> -------------
> Controverted spies have brought you intelligence that the enemy has a new
> long-range weapon. You learn that it works, but you think you lie outside
> the current range. However, you learn that it is undergoing rapid
> development and experimentation.
> 
> SOME OF YOUR RESPONSES:
> -----------------------
> "They're dumb, I hate them, and they can't hit us."
> 
> "IF they've never hit us, THEN they can't."
> 
> "They can't hit what they can't see."
> 
> "We should insult and burn the spies at the stake for bringing us this
> information."
> 
> "Bitch. Bitch. Bitch."
> 
> ***
> 
> Within this particular range of hypotheticals, the courts are going to see a
> problem and they might reach for spoliation.

I'd say you're certainly reaching. Oh, you're comment about 'can't see,
can't hit' isn't correct. The inverse, "What you can see you can kill" is.
Note that they are not equivalent (Hint: it has to do with your definition
of 'seeing').

> Arguing over the rightfulness or wrongfulness of it is a futile exercise.

Over what are we arguing? You've raised three seperate issues that are in
conflict in this example. Which one is futile? And if you think 'moral
indignation' doesn't have something to do with war then you truly don't
understand war.

> When you learn your adversary is
> using a new tactic or developing a new weapon, you examine your own tactics
> and adjust them accordingly in ANTICIPATION OF CONFLICT.

Perhaps, but history is full(!!!) of examples where nations didn't do that
(consider Plan Orange & Plan Black and the verious strategies they
followed).

> "To secure ourselves against defeat lies in our own hands, but the
> opportunity of defeating the enemy is provided by the enemy himself." -- Sun
> Tzu.
> 
> A most apt analogy for the law. Where it presents an obstacle, it presents
> an opportunity.

Actualy it isn't, the quote argues AGAINST your point, m'lady. There is a
difference between 'secure ourselves against defeat' and 'defeating the
enemy'. That disctinction cuts to the very core of your argument and
disembowels it like a Wakizashi.


 --
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                Nature and Nature's laws lay hid in night:
                God said, "Let Tesla be", and all was light.

                                          B.A. Behrend

       The Armadillo Group       ,::////;::-.          James Choate
       Austin, Tx               /:'///// ``::>/|/      ravage at ssz.com
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