Warning — toxic sludge

A right-wing friend, who knows my low taste in Bush-related scandal, alerted me to this from Drudge. I think the story is supposed to be that, back in the Bush I days when Saddam was fighting Iran and therefore qualified as one of our SOBs, we gave him the code for a piece of law-enforcement software called PROMIS, which Saddam then resold to Osama bin Laden, who subsequently used the Trojan Horses built into it to help keep one step ahead of the posse.

Anything’s possible, I suppose. But the latest stuff relates back to an old Reagan-era pseudo-scandal around a firm called INSLAW. I was actually present at some of the relevant events, and can testify of my own knowledge that the INSLAW scandal was a complete crock. That what started as a left-wing attempt to make scandal against Reagan morphed into something the wing-nuts want to link to Vince Foster, Mena Airport, and the Rose Law Firm (*) makes a twisted sort of sense.

Here’s a sketch of the story:

In the late 1970s, the National Institute of Justice gave the US Attorney’s office in DC some money to develop a management information system for prosecutors’ offices, which were still in the paper-file stage. The result was something called the Prosecution Management Information System, or PROMIS.

The software was the property of the Federal government. But the people who developed it, including someone named William Hamilton who had good ties to both Elliot Richardson and Edwin Meese, figured out a way to steal it.

They delivered the program, but with only the scantiest of documentation, making it effectively useless to any potential new adopter. Then the set up, first a non-profit called the Institute on Law and Social Policy (INSLAW), and eventually a for-profit firm called INSLAW, Inc., to sell upgrades of the software and the service of installing it, training people how to use it, and maintaining it.

Not only were they going to make money by selling software: they also figured they would be able to get research grants for studies of the prosecution process, because they understood the MIS and therefore could extract information from it. (PROMIS was incredibly primitive, and couldn’t be made to produce even a simple case count without special programming.)

That’s when I got into the game. (This would have been around 1980.) NIJ gave INSLAW a grant to study a theory Hamilton was pushing about what happened if US Attorneys’ offices referred events that were violations of both federal and state law down to local prosecutors rather than handling the cases federally. Hamilton’s idea was that those cases became “tainted” because locals didn’t want to be handling the Feds’ castoffs, and often wound up not being prosecuted at all. INSLAW had looked at a bunch of bank-robbery cases in two jurisdictions: one where the US Attorney’s Office routinely prosecuted them, another where the USAO routinely declined them for local prosecution. Sure enough, 95% of the referred cases were never prosecuted. Theory proved. A little surprising — why would a local DA turn down a perfectly prosecutable (due to the video cameras) robbery case? — but the world has lots of surprises.

I was working in the policy shop for the Criminal Division of Justice, and NIJ, as a matter of routine in a matter involving federal prosecution policy, sent the INSLAW write-up to our shop for vetting. Fortunately, the analyst assigned, Marion Metcalf, was bright and skeptical, and read the footnotes carefully. It turned out that there were 20 cases in the district that did referrals, and that one of them had led to a prosecution while the other 19 were listed as “disposition unknown.” Why? Because INSLAW was using PROMIS to track the cases in through the Federal system, but had no such capacity to track cases prosecuted locally, and relied on the FBI case files. But the FBI doesn’t keep investigating once a case has been declined for federal prosecution, and therefore has no reason to record in its files what happens. Mostly, the case is just closed out “disposition unknown.” But, as the footnote explained, INSLAW had decided “as a methodological choice” to treat all “unknowns” as dismissals. In other words, they had no idea what happened to those cases, and the “confirmation” of the “case taint” theory was as phony as a three-dollar bill.

So Marion wrote up a very stiff comment and sent it on to NIJ. (This would have been about 1980.) End of story, as far as I then knew.

Two years later, INSLAW came back to NIJ asking for something like $300,000 to follow up on its prior research. Again, NIJ sent it on to us. (By now, I was running the shop.) I still remember the look of outraged incredulity on Marion Metcalf’s face when she came to my office to report what she had found. Having been caught red-handed torturing the data outrageously, INSLAW had responded by publishing the study exactly as she had reviewed it except for taking out the footnote. That report was the basis for the request for new money.

I went to the head of the Criminal Division, a Reagan Democrat (but otherwise a decent, smart, wise human being and a superb manager) named Lowell Jensen, who had been the District Attorney of Alameda County, California (Berkeley, Oakland, and a few smaller towns). I was so mad I was sputtering about how we ought to prosecute INSLAW for attempted fraud on the government. Jensen calmed me down, and we settled for a very rude note to NIJ, which guaranteed that the new grant wouldn’t be funded.

So I was somewhat upset when I heard that the Department had basically rigged the selection process to ensure that INSLAW’s PROMIS system would be selected to install in all the USAO’s. But a friend in the department took me aside and explained the facts of life: INSLAW had pull with Meese, then working in the White House, and William French Smith, the figurehead Attorney General, wasn’t going to clash with Meese on an issue that small.

As might have been predicted, the installation process was a disaster, as the MIS person on our staff kept reporting as she attended the implementation meetings.

A year or so later, having left the Department to go back to grad school, I heard that Massachusetts was going to buy PROMIS. I was doing some consulting for one of the DAs, and told him it sounded like a bad idea. He said there didn’t seem to be anything better on the market. But I recalled vaguely that one of Jensen’s accomplishments in Alameda was developing an in-house MIS product called DALITE. So I called Jensen and asked him whether there was a way the Massachusetts folks could use DALITE. He told me to forget about it: DALITE wasn’t really documented, wasn’t being maintained, no one was available to provide installation support or tech support afterwards. “If they want a prosecution MIS, they’ll just have to go with PROMIS.”

Eventually, things got so bad with the PROMIS installation at the federal level that the Department actually cancelled the contract, greatly to the relief of all the technical folks involved. INSLAW, deprived of its biggest contract, went broke, and the feds re-acquired rights to the software (which they had after all paid to develop in the first place).

Hamilton managed to convince someone at the Washington Post — I can’t recall the name right now — that the whole thing was a huge plot by Meese and Jensen to steal his software (or, in an alternative telling, to suppress PROMISE and give Jensen a way to make money marketing DALITE). Another reporter working on the story died, and that brought the paranoids out in full force. [This, from Wired, is a good sample.] I made at least one phone call to the Post reporter, but he had a good story and didn’t want to be distracted by the facts. The issue was raised when Jensen, who in the meantime had become Deputy Attorney General, was nominated for a District Court judgeship, but eventually he got confirmed anyway.

Now again, it’s conceivable that PROMIS later morphed into something that investigators could actually use, that it had Trojan Horses built in, that OBL got his hands on the code, etc., etc. And someone ought to be asking why the counterintelligence guy brought out of retirement to head up the counterintelligence effort at DHS just resigned “for health reasons.” (*)

But to my mind the term INSLAW has about the same resonance as “Elders of Zion” or “Black Helicopters”: any story including any of those phrases should be assumed to be bogus unless and until every detail has been checked, twice. So I’m delighted none of the major anti-Bush bloggers has picked this one up, and I urge all my friends to be careful on this one. It probably belongs in the Drudge Report.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com