Thursday, April 25, 2024

DOJ Rattles the Clayton Act Sword

Trade news outlets covering entertainment and media are reporting as of April 19, 2024 that John Malone formally announced his resignation as Director Emeritus at Charter Communications. Malone has played a role at Charter for years while also being the owner of Liberty Media, serving on its board and serving on the board of Warner Brothers Discovery (WBD).

Malone made the decision after seeing two fellow industry veterans resign similar positions from WBD's board after they received inquiries from the Department of Justice involving concerns over competition and potential anti-trust issues as addressed in the Clayton Act of 1914. If your business history is a bit fuzzy, the Clayton Act served as Part II after the Sherman Antitrust Act of 1890 which set out the first restrictions on monopolistic behaviors used in railroads and oil whereby individual companies arranged cartels to limit competition and rig prices.

Companies responded to the Sherman Act by simply merging into larger companies rather than acting as cartels. Voilia! Problem solved. The Clayton Act established additional bans on behaviors that became dominant after Sherman including price discrimination, exclusive dealing or tying and interlocking directories.

That last item involving interlocking directories seems to be the driver for this news. Even with fewer, larger companies, regulators in 1914 realized firms were appointing shared members as Directors of boards across companies that were competing to still share strategy and encourage price fixing behavior between supposed competitors. Terms of the Clayton Act were updated in the 1970s but conceptually, nothing has really changed in the law. What has changed is that regulators have simply ignored the facts in front of them.

As technology and telecommunication firms have become more inter-dependent and profitable, the number of personnel acting as board members on multiple firms has gone up considerably. In many cases, many of these board memberships seem to be granted to convey gravitas and viability to smaller firms. "Hey, you must have a good opportunity there if you have John Malone on your board..." One can argue that having some wise older veterans around to guide firms competing in industries where a lack of standards (video standards, data network standards, make up your own example) could reduce efficiencies and trigger later financial losses can provide benefits to the industry itself and consumers.

In the larger picture, however, the operation of these giant firms and their regulation should not be defaulting to an assumption of innocence first, then only followed up with anti-trust enforcement when harm is identified. The very existance of the Sherman Anti-Trust Act and the Clayton Act reflects DECADES of learning that any time the practices outlawed by these acts are used, they NEVER benefit the economy or the public in the long term and they should always be stopped in their tracks. If recent examples are needed, look at the failures of large firms to protect private data of customers, the insane pricing of subscription TV and Internet service or the MASSIVE violation of intellectual property rights reflected in the launch of Artificial Intelligence systems trained on terabytes of publicly available but copyrighted content.

And look how little effort it takes by the government to trigger altered behavior. Just sending a notice inviting someone in for a chat is enough for three industry kingpins to abandon positions on boards.


WTH

Sunday, April 21, 2024

A Teachable Moment for MAGA Adherents?

It sounds very pop-psychology-ish (<---- there's a word we need) but I truly believe the MAGA "movement" is a form of mass psychosis. It's not unique in history, it's simply an American manifestation of a more general problem stemming from vast disparities in wealth and policies that seem to erect a thirty foot tall wall of razor wire separating the top and the bottom in the form of poor education and distorted, re-distributive tax policies that protect the wealthiest at the expense of those at the bottom who see no viable upward path.

I frequently make reference to "teachable moments" -- points in one's experience where facts and conditions one has been previously able to suppress from processing as part of one's decision-making lead to outcomes which make those facts and conditions IMPOSSIBLE to ignore and IMPOSSIBLE to NOT associate with one's prior ignoring of those inputs. The most important aspect of a teachable moment is that it makes it inescapably clear to the person in that moment that the suffering they are currently experiencing is PRIMARILY due to their OWN prior choices and that making DIFFERENT choices going forward is required for their literal survival.

In the past, I might have used the following scenarios as examples of teachable moments:

  • a person choosing to go without auto insurance getting in a wreck and going bankrupt from damages
  • a denier of climate change building a house 200 feet from the ocean in Florida and getting wiped out by a hurricane
  • a fan of de-regulation learning they have been harmed by an unsafe drug rushed to market
  • an anti-vaxxer losing a child to a preventable childhood disease conquered sixty years ago
  • an opponent of Welfare and Social Security becoming disabled and having no safety net to support them
  • an NRA nut losing a family member in a mass shooting involving an automatic weapon

The problem with my concept is that even THESE situations require at least a tiny kernel of basic reasoning and one of the unique aspects of the MAGA movement is that its adherents seem to have one unifying characteristic - their primary education was grossly deficient. Not only in civics (concepts about the separation of powers as a means of protection against tyranny, how bills become law, basic civil / criminal procedures, federalism and delegation of powers, etc.) but more basic skills in simple mathematics, history and language. Poor math skills prevent them from being scammed by politicians lying about tax abatements for $500 million dollar stadiums owned by billionaires. A poor background in history prevents one from recognizing old schemes that worsen problems being proposed with new terminology to benefit the privileged.

Note that this is not a comment about the background of the LEADERS of the MAGA movement. Many are nominally very well educated at some of the (previously) most prestigious universities in the country. I'm not convinced these leaders BELIEVE in many (any?) of the ideals of MAGAism. However, every MAGA "leader" clearly understands the existence of such a collective provides a large enough base of voters that can be bilked for campaign contributions and leveraged in a corrupt, gerrymandered system to gain and retain POWER which is their only motivation.

The concept of a "teachable moment" seems to make sense in a very limited, one-person-at-a-time sense. But it's a horrible way to learn a lesson when millions need the lesson. That's a lot of pain and economic / emotional trauma to impose on a large population which injects a new negative shock into the larger system. And that type of "mass teachable moment" won't just hurt those needing the lesson. They have family members dependent upon them as well who will suffer right along with them. And the types of behaviors favored by the MAGA cult involving abusive prosecutions of enemies, coddling of foreign dictators, election fraud and financial fraud hurt the entire population and the world.

It's not entirely clear that members of the MAGA movement are actually capable of learning from any such teachable moment. The blending of MAGAism with a particularly militant type of Apocalyptic Christian evangelism adds an additional layer of group-enforced rejection of reason that only delays the point at which a particular person might realize they've hit rock bottom.

Perhaps the most disturbing aspect of the current mass psychosis exhibited by MAGAism is that success in halting the ascendancy of this flawed thinking won't actually eliminate it. If the United States turns back this tide in November 2024, alters the mix in the House and Senate to weed out the obstructionists and manages to get back to the point where compromise and reason allow legitimate problems to be solved in a timely manner, MAGA thinking won't disappear forever. It won't be "disproven" in any sense. Those that believe its tenets won't link a more functional government to the LOSS of MAGA control in government. Their concerns will simply disappear into the fringes where they came from and lurk... Until the country teeters back after failing to address fundamental problems with education, economic opportunity and justice. But no viable ideas for solving those problems are coming from the MAGA fringe. And they never will.


WTH

Tuesday, April 16, 2024

USSC Assaults Language, Grammar and Punctuation

The United States Supreme Court heard arguments on April 16, 2024 stemming from appeals made by multiple January 6, 2021 insurrectionists arguing their charges related to attempts to "obstruct official proceedings" should be thrown out. The arguments involve two key elements. One, that the language supporting the charges derives from Sarbanes-Oxley legislation enacted in the context of FINANCIAL crimes and that the "obstruction" clause cited in criminal charges is actually tied to a predecessor clause that narrowly involves the destruction of documents. Lawyers for these January 6 defendants are essentially arguing that insurrectionists were not involved with activities involving FINANCIAL crimes ergo the secondary clause of "obstruction official proceedings" has no antecedent in these cases, justifying the dismissal of these charges, thereby lessening or eliminating charges for some defendants.

In news that should shock no one at this point, conservative judges on the USSC, led by Chief Justice John Roberts, are voicing support for this argument. Their reasoning for doing so not only does violence to the facts of the January 6 insurrection concocted by Donald Trump and brought to fruition by thousands of his followers but does violence to plain language, grammar and punctuation. And it appears the argument raised by defense counsel doesn't even understand the structure of the applicable US code.

To understand the slight of hand being attempted, each aspect of this argument has to be carefully analyzed, one element at a time.


The Sarbanes-Oxley Angle

The Sarbanes-Oxley act of 2002 was enacted in response to legions of crimes committed not only by energy trading firm Enron but its auditors who together engaged in YEARS of financial fraud to synthesize billions in profits from thin air then together destroyed boxes of evidence once the firm collapsed and regulators began investigating the fraud. The language of Sarbanes-Oxley added two sections to Title 18 of the US Code governing criminal procedures.

SEC. 802. CRIMINAL PENALTIES FOR ALTERING DOCUMENTS.

(a) In General.--Chapter 73 of title 18, United States Code, is amended by adding at the end the following:

"Sec. 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

On the surface, the language above would seem to SUPPORT the defense argument that references to "obstruction" here only apply to cases involving "Federal investigations and bankruptcy."

But note that there's no reference to any "proceeding" in this language. That's because there is an OLDER section of this same Title 18 section of the US code that pre-dates Sarbanes-Oxley by twenty years and has nothing to do with the handling of financially related crimes. That is the section that has the reference to "obstruction of an official proceeding". Here is that language from section 1512 (c) of Title 18:

(c)Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

It's useful to review that entire section of the US Code. Section 1512 dates from 1982 when prior statutes regarding witness tampering, etc. were consolidated and clarified. Those clauses from 1982 involve crimes related to murdering witnesses, use of threats to intimidate witnesses or acts that prevent witnesses from attending required proceedings. NONE of those clauses including (c) above reference ANY constraints regarding the nature of the criminal case.

The argument that obstruction charges related to "official proceedings" are not applicable to January 6 defendants because the acts involved were not related to financial crimes is groundless and isn't addressing the actual US code involved in the charges.


The Grammar Angle

If the argument centers on the ACTUAL US code involved under Title 18 Section 1512, the next argument being made by the grammarians of the Supreme Court is that the two clauses in section (c) of 1512 are DEPENDENT upon one another. The SECOND clause cannot apply unless the conditions of the FIRST clause are met. This interpretation defies ANY reasonable understanding of the English language, grammar and punctuation. The actual STRUCTURE of section 1512 could be rendered this way:

(c) 1) Whoever corruptly alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding shall be fined under this title or imprisoned not more than 20 years, or both.

(c) 2)Whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so shall be fined under this title or imprisoned not more than 20 years, or both.

Instead, the drafters of the language chose to re-use "Whoever corruptly" and " shall be fined under this title or imprisoned not more than 20 years, or both" and bulletize the two independent conditions for referential clarity. While referenced in a list, list item #1 ENDS with "or" to explicitly state the two are not mutual conditions and list item #2 BEGINS with the word "otherwise" to explicitly state any OTHER action unrelated to destruction of records that interferes with official proceedings triggers this law.

There is nothing in the language of the ACTUAL section 1512 of Title 18 that is actually driving these "obstruction" charges for January 6 insurrectionists that is remotely ambiguous nor remotely indicative of a condition upon destruction of documents as a required precondition for triggering prosecution for this crime.


The Destruction of Documents Angle

Assume for a moment that an alternate universe of English grammar exists that only Supreme Court Justices are capable of interpreting and that somehow, a ruling is made that items #1 and #2 of section 1512 are conditional upon each other in order to trigger charges. Is that grounds for dismissing charges against January 6 insurrectionists? Defense attorneys may argue their client didn't actually destroy any documents or didn't "intend" to destroy any official documents.

The reality of that argument isn't ironclad. The entire POINT of the attack on the capital was to disrupt the Electoral College certification of the 2020 election. That process involves actual tabulations of electoral votes submitted by each state legislature. There is ample evidence the architects of the attack on the Capital and those who actually participated attempted to find those state elector slates and confiscate or destroy them in order to cast doubt on the validity of the proceeding, trigger a delay of hours or days, and give Trump's legal fraudsters additional time to strong-arm officials from specific states to alter their electoral slates to throw the electoral result to Trump.

More importantly, the actual interpretation of section 1512 does not require any attempt to SUCCEED. The conditions triggering crimes under section 1512 are met by merely ATTEMPTING acts of obstruction or destruction. Success of the attempts is not required to trigger charges.

The entire January 6 insurrection was an explicit plan to trigger the destruction or alteration of official documents (electoral slates from state legislatures) and delay scheduled proceedings dictated by the Constitution to count those documents to provide more time for their fraudulent alteration.


WTH

Monday, April 15, 2024

Iran Reaches Peak Mischief

The Iranian drone and missile strike on Israel that took place on April 13, 2024 and information that has come out since the attack provides some evidence for a much different perspective on the future of Iranian influence in the region. The initial interpretation of the attack was that it demonstrated how much destabilization Iran could trigger in an already chaotic region, leading to more escalations of violence between Israel and seemingly everyone else and triggering more political and military strains in the United States. With only a few days hindsight, those concerns still hold weight but the logistics of the attack and defense hint at a different interpretation, one far more dangerous for Iran's fundamentalist leadership.

Accounts differ on quantities but estimates range from

* 100 drones, 130 ballistic missiles

to

* 170 drones, 120 ballistic missles, 30 cruise missiles

Initially, reports indicated that Israeli defenses shot down nearly everything and those that got through resulted in zero deaths and one injury of a young girl hit by shrapnel. That's IMPRESSIVE. A testament to the prowess of Israeli forces operating their Iron Dome defenses.

Well... Maybe not so much.

Reports as of April 15, two days later, indicate that the US alone shot down 70 drones and Jordan and European allies operating in the region shot down maybe 10 or 20 more drones and missiles before they ever reached Israeli airspace. The Wall Street Journal has quoted US officials stating that only half of the incoming drones and missiles were intercepted and the others failed in flight.

That's a much different story with significantly different implications, none of them good for Iran.

First, those statistics are evidence that American ship-based defense systems provide amazing capabilities at a distance. They also indicate the underlying design of those systems that provides a "command and control backplane" allowing data to be shared with partners increases their effectiveness even more. In effect, Iran's attempt to carry out this attack supplied a real-world demonstration that dollars spent on these defense systems was well spent. The attack was a military stragetic failure on Iran's part as well because rather than facing the fear Iran has hundreds / thousands of drones of unknown lethality and effectiveness, we now know Iran's state of drone technology is at best about 50% effective. Thanks for the extra lab data. We'd normally have to pay spies handsome sums to collect that kind of intelligence. Now we have it from the real world.

More importantly, the Iranian attack is a political strategic failure on the part of Iran's fundamentalist leadership. The drone and missile attack was launched as a response to Israel's bombing of the Iranian embassy in Damscus, Syria on April 1, 2024. That bombing was targeting an Iranian general and succeeded at killing him. With ANY other pair of countries, the act of BOMBING another country's EMBASSY in a THIRD country would be a Pearl Harbor level military and political event, likely triggering a war probably between all three countries. In this case however, not so much.

Iran has been funding terrorism against its Sunni Arab neighbors and the US since the inception of its current fundamentalist regime in 1979 but it knows there is some upper limit that cannot be exceeded without triggering its own destruction. Knowing EXACTLY where this limit is is crucial to Iran's fundamentalist leadership because this terrorism serves as a mechanism of Iran's leaders to distract Iranian citizens from Iran's failed domestic economy. As long as the fundamentalist leaders know there are are few more notches available on the Distracto-meter abroad, they can pull that lever when domestic politics appear to be threatening their grip on power.

Now think back to the period between the April 1 Israeli bombing of the Iranian embassy and the April 13 attack by Iran on Israel. By Friday, April 12, the evening news in America was airing video footage of Iranian forces putting missiles into firing position. Even armchair military experts on YouTube hunkered down in their video bunkers were covering Iranian preparations for this attack in real time. That's not a sign of an attack from a country with unlimited lethality in store it can deploy to exact retribution for a blatant (and HUMILIATING) attack on its (virtual) territory. That's a sign of a country that recognizes a boundary it cannot afford to breach in its external affairs yet is facing intense domestic problems that DEMAND that it maintain the illusion of revolutionary zeal by counter-attacking.

When faced with that dilemma, Iran did EXACTLY what one would expect. Iran telegraphed for DAYS in advance that "something" would be done. Iran publicly referenced the types of weapons that would be used and numbers. Footage was shared internationally showing final preparations, helping to further narrow down the exact window of the attack. And while drones and missiles were still flying and probably half had already been shot down, Iran publicly stated through a tweet from its UN ambassador that the current attack would be the SOLE extent of Iran's response to Israel's embassy bombing, unless Israel responded to this attack.

Iran's response could be translated to something like this.

Israel bombed our embassy consulate in Syria to kill a Brigadier General in our Quds forces tied to our support for Hezbollah. Normally, bombing an embassy would be an indefensible act of war but the actions of that general have resulted in equally indefensible acts of terrorism against Israel. We know that. You win that round. And THAT was such a confrontation act, there's really nothing we can do as a counter-attack that wouldn't open a full-blown war. But we have have domestic political pressures that must be contained and those pressures require us to do SOMETHING so here's what we're gonna do. We're going to fire a bunch of slow moving drowns and some missiles that Israel has already proven they can shoot down with ease. We're gonna hint at the quantities. We're gonna hint at the date. We're telling you they are coming all the way from Iran, giving many minutes to track them to shoot them down. And this will be IT. We won't do any more, so just have some target practice while we yell Death to Israel and Death to America in some meetings to distract our own citizens from other realities.

Iran is still capable of generating chaos that can disrupt its immediate region and the world economy. However, this recent attack has taken on an air of political kabuki theatre. It reflects the inevitable result when a government begins to understand that modern drone and missile warfare cannot solve fundamental political and economic problems and secure the survival of a government that is failing domestically. While recognizing that limitation, those in power certainly will not relinquish that power voluntarily so they will continue to use whatever tools they have at their disposal to delay the inevitable as long as possible.


WTH

Saturday, April 13, 2024

Mismatching Strategy / Funding to Reality

Recent events in the realms of worldwide shipping and Middle East terrorism have spurred news stories and commentary among those who follow the military -- the Navy in particular -- that reflect what can objectively be termed a glaring mismatch between military plans for future battles and reality as it is unfolding in Ukraine, the Middle East and domestic ports in the United States.


Current Events in a Nutshell

Current events over the past four years have served as an unescapable lesson to citizens around the world in the criticality of worldwide shipping to modern economies. The COVID outbreak in 2000 created instant shocks in the supply of goods as lockdowns crippled manufacturing across the globe. COVID also created instant spikes in demand of other goods as they became popular for work-from-home, etc which could not be instantly satisfied due to overseas labor lockdowns and normal shipping delays which became far longer as longshoreman and trucking labor became overutilized.

Current events also include multiple incidents where accidents have crippled or threatened to cripple crucial waterways. In March 2021, the container ship Ever Given drifted slightly while traversing the Suez Canal, ran aground and blocked all traffic through the canal between the Mediterranean and Red Seas for six days until it could be pulled back into the channel. On March 26, 2024 a container ship leaving the port of Baltimore lost propulsion and collided with a pylon of the Francis Scott Key Bridge, triggering a collapse of three spans into the water and blocking the port's main channel indefinitely. That ship was exiting the port without tugboat assistance. On April 5, 2024, the container ship Qingdao was exiting the Staten Island port in New York with three tugboats aiding its course and also lost power. The crew was able to bring it to a halt before striking the nearby Bayonne bridge but three additional tugboats were required to keep the ship away from harm.

And then there's piracy, terrorism and war. Houti rebels with financial backing from Iran have been attacking ships off the coast of Yemen since the Hamas attack on Israel in October 2023. Pirates operating out of Somalia have also attacked roughly twenty ships since the Hamas attack as well, after such attacks had been rare since a rash of them in the 2008-2014 timeframe. Meanwhile, as a consequence of the war between Russia and Ukraine, experts estimate that a third of Russia's fleet operating in the Black Sea has been destroyed or rendered inoperable by Ukraine, a country which has no navy whatsoever and few fighter jets. By Ukraine's count, that's twenty four ships and one submarine.

And late breaking news, on April 13, 2024, Iran launched roughly one hundred drone strikes against Israel in retaliation for Israel's bombing of the Iranian embassy in Damascus, Syria on April 1, 2024. Is this a massive escalation in tensions between the two countries who have already been fighting each other indirectly through Hezbollah and Houthi terrorist proxies for years? It won't be clear for several days at a minimum. Iran's ambassador to the UN issued a tweet (confirmed for authenticity by Iran's state media) that the attack was in response to Israel's bombing of the embassy in Syria and that this set of one hundred drone flights constituted the extent of Iran's response to that incident, UNLESS Israel responds with another attack.

Commentators have already noted that backdoor conversations have been going on between all parties in the region since the April 1 attack as if all recognize a full scale war serves no purpose but that internal domestic political pressures must still be placated. The Iranian tweet could be taken as more dialog from that conversation. Okay, you bombed our embassy, we didn't like that and our elders are furious and demanding actions so why don't we agree we'll send a bunch of drone flights your way in a couple of days, we'll make a statement announcing our defense of Iranian interests and death to Israel and you can huff and puff for a few days as well but that's the end of it, WE'RE EVEN for now, right?

This might fly within Iran but it is not clear if it will fly in Israel. On April 10, 2024, Netanyahu learned that Hamas cannot find forty remaining hostages after that number became a negotiating point on opening new aid paths into Gaza and altering the military posture against the territory. If Hamas never had control of all of the hostages and / or if some (all?) of the remaining hostages have been killed, that drastically reduces any incentive for Netanyahu to lower pressure on Hamas and Gaza in general since he has nothing to provide his own political base as compensation for de-escalating. If that same base doubles down in supporting Netanyahu in response to the first known direct attack on Israel directly BY Iran FROM Iran, then Iran's attack will be a terrible mis-calculation with huge military implications, especially for the US Navy's workload in the region.


Naval Logistics

As of 2024, the US Navy has a total of 470 ships, including 100 reserve ships capable of hauling cargo or fuel, 238 commissioned ships (USS) and roughly 132 non-commissioned (USNS) vessels. Many of these ships are thirty years or more in age or design. The combination of physical operating conditions for ships and crewing considerations for those aboard creates a crucial dynamic for long term planning of naval capabilities and capacities. That dynamic can be oversimplified somewhat down to a simple rule of thumb -- DELIVERY of some arbitrary capability X on a continuous basis in any arbitrary location actually requires the BUILDING AND OPERATION of 3X that capability. Why?

Ships aren't built for one billion dollars then "consumed" as a declining asset until skuttled. Ships require nearly continual maintenance to combat rust and wear and tear. Ongoing operations aboard a deployed ship are mentally and physically taxing for the crew so a single ship cannot be deployed indefinitely wihout burning out the crew. That requires rotation with an equivalent vessel and crew so one is always deployed and one is always at port. But ships also require extensive overhauls every 3-5 years which may take 1-2 years of downtime. That means a third vessel and crew is required in rotation in order to wield that X unit of capability.

Because of the, ahem, UNIQUE capabilities of naval vessels, they are not commodity products being made in large numbers by shipyards or being operated by cookie cutter crews with common training that fits every vessel. Naval ships and submarines are instead, by definition, maybe "five of a kind" designs with unique power plants and handling characteristics that require extensive training and ongoing hands-on exposure to maintain skills for operating and repairing them. The unique nature of the ships and the skills of the crews operating them results in a unique "inertia" effect that must be taken into account over the entire life of the ship. Fluctuating funding for construction, repairs, retrofits and crewing is not conducive to extracting maximum value from these ships. Wide variations can result in lost construction skills (raising costs for more units), lost repair / retrofit skills (increasing downtime and increasing operating tempo on remaining ships) and attrition with crews (reducing readiness and availability).


The Navy Has a Plan

The Navy understands this "lifecycle inertia" problem and continually updates a long-term plan that it uses to rationalize priorities internally and share those priorities and rationales with Congress and with contractors. The Navy can plan all it wants but even if those internal plans and rationales are flawless, those plans are still subjected to competing priorities from Congress and the effects of profit-seeking contractors. The most recent thirty year plan was released by the Navy in March of 2024 and can be viewed here:

https://s3.documentcloud.org/documents/24487775/rtc-pb25-shipbuilding_plan.pdf

(It's interesting to note that as part of a government effort to divulge paperwork costs in an attempt to encourage administrators to stop requesting expensive, useless reports, the title page of this report dutifully states this report cost $216,000 to prepare.)

To give its intended audiences a better understanding of the choices reflected in the document, two different plans are actually presented. One could be termed the Navy's ideal ask, the spending it recommends in a perfect world where the only considerations are the defense of the nation and their impacts on ensuring equipment and personnel needed to meet those demands. The other plan could be termed the real-world ask, where the Navy is attempting to reflect how it should prioritize spending when it know it won't get it's perfect-world funding and needs to cut corners.

The key recommendation in the plan that has generated the most discussion is the plan to decommission nineteen ships, with ten of the nineteen selected being decomissioned before reaching their previously estimated end of service life. In the Navy's view, these choices reflect a scenario where the capability of these ships discounted by their downtime is being dwarfed by the cost of ongoing maintenance and the existence of other alternatives wth lower costs and higher lethality.

That's a pretty dry way of stating the Navy's rationale and at that very general level of detail, the suggestions seem logical. However, the details behind some of the ships selected hint at much larger problems. Two of the nineteen ships targeted for early retirement are not some of the oldest ships (by design or construction) in the fleet but some of the newest. The Navy's Littoral Combat Ship (LCS) program originated in 2002 when a US Admiral attended a demonstration of a Danish ship and thought he had a brainstorm for a flexible ship that could operate in littoral ("near shore") waters and allow different weapons systems to be bolted on deck as if the ship were a giant transformer toy.

This Admiral, Vernon Clark, had no background in ship design or ship building but began pushing his idea of a ship capable of speeds up to 45 knots and obtained funding for a program to build two competing prototypes, later dubbed the Freedom variant (built by Lockheed Martin and Marinette Marine in Wisconsin) and the Independence variant (built by General Dynamics and Austal in Alabama). After twenty years, both designs have proven to have crippling design and reliability issues, all resulting from the absurd top speed expectation. The engines and transmissions fail at astonishing rates and the ships saved weight by omitting flooding protections around critical equipment, drastically increasing the likelihood of having to abandon ship if the hull is breached.

As another example, beginning in 2015, the Navy launched a program to modernize some of its existing Ticonderoga class cruiser ships to extend their useful life by a promised five years, allowing use until 2030. This extension was deemed necessary because related plans to design and launch brand new replacements were far behind schedule and new ships were not arriving in time to replace those reaching their previously identified end of service life. Unfortunately, Navy administrators didn't thoroughly inspect the existing cruisers before obtaining funding and letting contracts with vendors to do the work. The seven ships eventually targeted by the program were in FAR worse shape and required FAR more work than covered by the funding and contracts. Now, in 2024, some of the selected ships sat idle for nearly six years, crews were reduced and personnel reassigned. As of 2024, work on the USS Vicksburg assigned to BAE Systems has still not been completed, over $500 million dollars has been spent just on that one ship and the Secretary of the Navy has testified to Congress that the USS Vicksburg and USS Cowpens will likely never see another deployment. Only two of the seven ships have completed renovations at a cost of $2.4 billion dollars.

In 2022, the Navy determined four of the original targeted ships were simply beyond the point of practicality to spend money attempting to refurbish them. It began submitting plans reflecting their retirement, only to have Congress push back demanding the ships be kept active. This seems to be a classic "sunk cost" related fixation on Congress which is demanding the Navy get more life years and operational tours from these ships after spending $2.4 billion. But of course, willing that to happen by forcing the Navy to keep something it cannot refurbish or even crew at this point does nothing to bolster defense. It is literally setting money on fire with zero benefit provided to anyone... Well, almost anyone. The contractors will continue lining their pockets by doing work the Navy will probably never quality check since it has zero plans to actually use the ships. The politicians in Congress can continue claiming they support a larger Navy, even if some of the ships in that count cannot leave shore.


The Mission! Remember the Mission?

The saga of the Ticonderoga cruiser class retirement and the failed Littoral Combat Ship (LCS) program are prime examples of looming problems caused by the intersection of incompetence, corruption and politics involved with trillions of dollars of spending on the military. As mentioned earlier, the Navy's 30 year plan references an "ideal world" plan and a "real world" plan to help explain to the audience HOW planners attempt to balance pie in the sky asks with reality. Of course, in such a technical, expensive domain with so many inertial effects, both science and art are involved in deciding which corners to cut to meet near-term needs without crippling longer-term needs which are likely unrecognized by most participants in the process.

The triangle between administrators, contractors and politicians makes this balancing act far more difficult and more subject to gaming by all the parties. Military and civilian leaders in the Pentagon want to hide their incompetence for suggesting a failed weapons program in the first place or allowing it to mushroom in expense. Contractors want to delay recognition of cost overruns and continue profiting off lifecycle expenses even if the weapon system involved won't ever see combat. Politicians want to avoid responsibility for their lack of oversight while also appearing "strong on defense" or appearing to protect hometown jobs or at least American jobs.

Of course, none of those concerns have anything to do with THE MISSION. Remember the mission? Protecting open waters for worldwide shipping to support free trade? Providing defense for allies? Making the world safe for iPhones and Hyundais?

More importantly, none of those concerns seem to reflect a shift to technologies and battle strategies that reflect modern day political and technology realities. Ukraine has been leveraging drones literally made out of CARDBOARD that might cost $3000 each for its attacks on Russian assets in Ukraine, in Russia and in ports. When a tank might cost $4 million dollars and a battleship might cost $100,000,000, that level of cost asymmetry between asset and threat requires a complete re-think of the mechanisms used to project force. Current events seem to indicate the US doesn't need another $13 billion dollar Ford class nuclear aircraft carrier filled with 90 fighters costing $82,500,000 each. We would be better off building 20 "drone carriers" costing maybe $500,000,000 capable of launching five Predator drones costing $99,000,000 each and 200 throwaway drones costing maybe $40,000 each. Total cost comparison?

   Ford carrier approach = 1 x $13 B + 90 x $82.5 M = $20.425 billion
Drone carrier approach = 20 x ($500 M + 5 x $99 M + 200 x $40k) = $20.060 billion

Despite the similarity in cost, the "drone carrier" approach would provide twenty times the "presence" across the globe as a single Ford class carrier. And it would require far smaller crews for the twenty smaller ships than the gigantic Ford class carrier and would require ZERO pilots on board and far fewer pilots to control the drones.


Macroeconomic Impacts

Because of the complexity of these weapons, their lifecycle costs over decades and their impact on worldwide economic activity and national security, the macroeconomic impacts of any plans for maintaining and refreshing these capabilities are vast. The collapse of the Key bridge is expected to close the port of Baltimore for at least four months and a conservative estimate of the daily cost is around $15 million dollars in direct economic activity or $1.8 billion dollars over the anticipated four month shutdown. And the port of Baltimore is #17 on the list of busiest ports in America. Imagine the economic damage from an obstruction at a bigger port resulting from an active war or terrorist attack. Failing to develop and maintain a strategy for combating piracy in shipping lanes in the Middle East could result in those routes being abandoned entirely, spiking prices of goods worldwide, triggering more inflation.

If major changes ARE made to weapons system procurement plans, those changes will have a massive impact on different businesses, likely slashing revenues at traditional ship building firms and related secondary companies while boosting them at firms specializing in aeronautics, avionics, materials science and smart munitions. Those shifts in revenue will also impact communities dependent upon the current mix of military spending.

Most optimistically -- or naively -- major changes to weapons system procurement plans could allow for a vastly higher ratio of applied lethality to cost, allowing equivalent or better military capabilities to be provided for orders of magnitude less cost, reducing deficit spending that is impairing the larger economy.


WTH

Tuesday, April 09, 2024

Maybe Next Year, We'll Do Business Again

Numerous problems are coming to light regarding the particulars of Donald Trump's miraculous $175 million dollar bond posting on April 1, 2024. It could turn out to be one of the biggest April Fools pranks ever. As of April 8, 2024, there are four key problems with the bond arrangement as New York officials and independent reporters have been able to ascertain. In a nutshell,

  1. The language of the contract between Trump and Don Hankey appears to be defective
  2. Neither Don Hankey or his firm is licensed in the State of New York to offer this type of bond
  3. The contract provides few specifics about the exact assets that were promised by Trump as collateral
  4. Trump's lawyers failed to correct prior filings with the court claiming Trump found no parties willing to back the original $464 million dollar bond when Hankey's first offer was made PRIOR to the bond reduction

ProPublica published a story on April 5, 2024 describing the events leading up to the reduced bond deal for the reduced amount.

https://www.propublica.org/article/trump-bond-disclosure-appeals-court-hankey

It seems that each of these problems could implode the current bond agreement and the delay it has provided in grenading Trump's larger economic charade.

For problem #1, the bond contract between Trump and Hankey appears defective from several perspectives. First, it did not include a certificate of qualification required by statute. It also appears to involve more than ten percent of the company's capital which also exceeds a limit in New York State law. The president of Hankey's firm that issued the bond has counter-claimed that the company is worth more than $1 billion dollars so the ten percent rule is satisfied and the firm IS licensed to issue surety bonds via an entity called Excess Line Association of New York (ELANY) which is a mechanism by which insurance companies can leverage a license in one state to operate in another. Others argue that this ELANY mechanism applies to surety bonds in other industries like construction but surety bonds for appeals are distinct and require a direct in-state license according to the statutes involved.

Another concern regarding the contract between Hankey's firm and Trump is that while Hankey has commented that Trump offered up the entire bond amount of $175 million in "cash" assets, Hankey's firm has not actually taken possession of that cash. Trump has merely "pledged" those accounts holding that cash to Hankey's firm while keeping possession of the actual cash. That is why the state is so fixated on the ten percent limit. That ten percent limit provides a margin of error for the surety company to still pay the state if the defendant doesn't pay the surety firm for the delta between the bond and the larger judgement amount. If the surety agent hasn't even collected the bond amount from the defendant, the state faces a higher risk of not collecting the full amount due if the appeal is lost.

Regarding problem #2, if one was inclined to be charitable, one might assume that the defective contract language referenced by problem #1 is a direct result of Hankey not being licensed to offer bonding services in the State of New York and his firm thus has no familiarity with the applicable laws and regulations to know how to craft a valid appeal bond contract. That is its own problem but this may pose another problem for someone's lawyers by submitting paperwork for such a bond to the court not knowing the bonding entity could not actually serve such a function in New York State. It's hard to be charitable regarding anything involving Trump but clearly his legal team sets new lows for legal expertise every day. Submitting this deal to the court might trigger ethical penalties for those lawyers for not validating the bond agent's legal ability to participate in the deal in the first place.

The fact that Hankey and his firm are not licensed to offer appeal bonds in the State of New York is problematic on two fronts. First, a competent attorney filing the appeal bond would have looked up the applicable statutes regarding the process and would have found section 2502 which states:

https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvp-sect-2502.html?/

New York Consolidated Laws, Civil Practice Law and Rules - CVP § 2502. Surety;  form of affidavit;  two or more undertakings;  condition;  acknowledgment

(a) Surety;  form of affidavit. Unless the court orders otherwise, surety shall be:

1. an insurance company authorized to execute the undertaking within the state, or

2. a natural person, except an attorney, who shall execute with the undertaking his affidavit setting forth his full name and address and that he is domiciled within the state and worth at least the amount specified in the undertaking exclusive of liabilities and of property exempt from application to the satisfaction of a judgment.

I'm pretty sure a first year law student could read those clauses and determine they either need to be dealing with a COMPANY licensed in the State of New York for this purpose or they need to be talking to a really wealthy RESIDENT of New York willing to sign an affidavit itemizing specific assets they control whose value equals the required bond that could be surrendered IMMEDIATELY should the appeal be dismissed or lost requiring payment of the judgement. Hankey's firm is based in California and is not licensed to provide surety bonds in the State of New York and Hankey is not a resident of New York.

The questions here are a) why did Trump's team not understand this and limit their search to qualified participants and b) why didn't the court of appeals and prosecutors IMMEDIATELY recognize this defect? Obviously, the answer for (a) could be that Trump's team is incompetent but the answer could also be they are just stalling for time. Financially, Trump is operating in a mode where the vast majority of his efforts must be targeted towards preserving the illusion of solvency, for political reasons certainly but also for critical financial reasons. He has numerous debts coming due over the next three years exceeding $700 million that need refinancing and many of his debts are subject to covenants that could trigger full payment if conditions aren't met. As a result, he is literally living day to day in his efforts to avoid any action that would require him to begin selling off assets that would begin confirming how much his prior attestations of property values used for loans were overvalued. Filing this dubious bond deal with an unlicensed, out-of-state party deferred a financial reckoning for Trump for seven days. That's a victory in Trump World.

So why did it take the court and the prosecutor so long to analyze the submitted bond deal and find an obvious flaw like this? That answer isn't clear. Maybe no defendant has ever had such incompetent counsel to make this "mistake" so the court had never formalized a checklist to follow upon submission to weed out such a bogus filing. This doesn't seem like a very good excuse with this defendant and his legal counsel who have demonstrated with nearly every interaction with the court they are grossly incompetent and have consistently acted in bad faith with zero respect for the court or the process. Everything they do must be immediately examined for compliance with the most basic expectations of fidelity to the law.

The implications of problem #3 regarding questions about the liquidity of Haney's firm to cover the bond are not clear. In some sense, this is an "interior" problem with a larger contract which is not valid in the first place due to the licensing / residency problem. It isn't clear if filing such a contract with the court with this interior defect might trigger fraud charges.

If issue #2 doesn't generate ethics charges against Trump's lawyers, problem #4 could exceed the threshold and do so. Trump's lawyers submitted a filing to the appellate court the week of March 18, 2024 stating Trump was unable to find any party willing / able to provide financial backing for the original $464 plus interest bond. The judges on the appellate panel stewed on that until Monday, March 25 at which point the required bond amount was reduced to $175 million and Trump was given another ten days to attempt to find a bond. Miraculously, on April 1, Trump and his lawyers submitted the plan backed by Don Hankey.

Unfortunately, Hankey had actually been in discussions with Trump and his lawyers PRIOR to March 25 and had told the lawyers he would be willing to back a bond for the $464 million plus interest nut. Trump's lawyers failed to report that to the court and update their prior filing that claimed no takers had been found. For these types of processes, the lawyers are expected to act as officers of the court and have an ethical obligation to factually state their client's financial position regarding bond and they failed to do so.

Perhaps the most troublesome aspect of the reporting by ProPublica is this quote from Hankey:

But, he said, the deal for the larger amount was dropped during a large Zoom call between the two sides, when Trump’s camp got a call informing them that the bond was reduced.

"They thanked us for trying to help: ‘Maybe next year, we’ll try to do business again,’" Hankey recalled them saying.

But several days later, Hankey said, they called back, hoping to make a deal for the reduced bond, and Hankey agreed.

Maybe next year, we'll try to do business again... What exactly was meant by the Trump team with that comment? Was Trump and team suggesting Trump might do Hankey favors if Trump won re-election if Hankey continued demonstrating a willingness to "play ball" in any other Trump entanglements? It certainly sounds like the intent of that statement.

It is also worth noting a few details that have come to light about Hankey's sub-prime auto loan business. As covered in a New York Times story on April 5, Hankey's businesses have been subjected to numerous penalties from regulators in the last decade.

https://www.nytimes.com/2024/04/04/nyregion/don-hankey-car-loan-billionaire.html

In 2015, the Consumer Financial Protection Bureau ordered two of his companies, Westlake Services L.L.C. and Wilshire Consumer Credit, to refund customers $44 million and pay a $4.2 million fine for deceiving customers. In 2022, another firm, Westlake Financial, agreed to pay $225,000 to settle allegations that it had, in violation of federal law, repossessed at least 70 vehicles from members of the United States military who had been called up for active duty.

That New York Times article goes on to cite concerns from a prior ethics advisor to George W Bush that as a business owner making money from sub-prime auto loans with a history of abusive practices, it is highly likely Hankey would love to see the Consumer Financial Protection Bureau de-fanged or completely eliminated and that it reasonable to assume such a favor might be the price for attempting to supply this bond for Trump.

Maybe next year, we'll try to do business again...

Indeed.


WTH

Wednesday, April 03, 2024

Inside the Trump SPAC IPO Debacle

A report published by The Guardian on April 3, 2024 expands upon details previously covered by The Washington Post in February regarding the mechanics (people and processes) behind the IPO of Donald Trump's social media company TMTG. The Guardian story addresses information coming to light about the source of additional funding Truth Social required while the IPO of its parent company was struggling to get past investigations by federal authorities. As one would expect with anything involving Trump, the emerging story is rife with self-dealing, fraud, a multitude of likely crimes and ties to Russia.

Before diving into specifics about the Trump deal likely did wrong, it is worthwhile to explain how the Special Purpose Acquisition Companies (SPACs) process is supposed to work and how a SPAC deal's financial goals and legal obligations differ from traditional IPOs.


The Mechanics of a SPAC Based IPO

As described in the context of the recent Trump business venture, the entire SPAC process is highly confusing and, even when accomplished legally, would seem to generate enormous conflicts of interest and numerous opportunities for fraud. To better understand the process, first forget what you think you may know about SPACs from the Trump saga and start from scratch.

A SPAC is a firm explicitly created to become publicly traded, identify some other privately held firm as an acquisition target, enter into a merger agreement with that target then transform into that other target at the point of merger, essentially taking the OTHER private company public. If it sounds like a pump and dump scheme combined with Invasion of the Body Snatchers, you are understanding the concept correctly.

As explained by advocates of the SPAC process, a SPAC is a modern equivalent of a prior strategy first popularized in the 1970s aimed at providing an alternate sequence of steps for raising capital to fund start-up companies that provide a different set of risks along that path. Advocates of SPACs believe this altered sequence and its altered risks provide a better match of business risk with financial risk in some business sectors, allowing more investment capital to flow into those sectors than would using normal IPO flows. What does that mean?

In a traditional IPO, New Company X has traditionally been operating for some period of time privately, has some sort of financial track record and it has a working product or service to show potential investors. It got to this point using earlier rounds of capital raised from investors with MUCH higher risk tolerance but the company requires orders of magnitude more capital to continue growing and that level of capital is beyond the resources of the initial investors. With the firm's established financials and track record for its products and services, a traditional IPO allows the entire investing public to review those records and its growth prospects to buy in via publicly traded shares.

When NewCo files its IPO, it shares its overall financial picture, identifies how many shares are being retained for current owners and employees and how many shares are being sold in the IPO to the public. Imagine NewCo filing for IPO with the following statistics:

  • total NPV = $5,000,000,000
  • total shares held by owners / employees = 25,000,000
  • total shares offered in IPO = 75,000,000
  • suggested IPO stock price = $45

Those numbers imply the the fair value of NewCo shares is $5 billion / 100 million = $50/share. Since the suggested IPO price is $45 dollars, an outside investor looking in might be tempted to participate in the IPO, see if they can snag any shares at $45 and quickly capture a $5 gain by unloading the shares when the market drives the price up to fair market value. If the IPO suggested price is $60, outside investors might sit on their hands and shares won't move until the price comes down and the founders may fall short of the cash they expected to raise.

The SPAC based IPO process is vastly different than the traditional flow. As explained by its advocates, the SPAC mechanism is intended to attract capital for an investment opportunity SOLELY based upon the perceived acumen of the SPAC founders, prior to those founders identifying any particular business to take public. The founders will typically focus in a particular business sector (biotech, semiconductors, AI, etc.) but legally at the time the SPAC is created, there is no target company identified.

To an investor, the choice between investing in a company via a traditional IPO versus investing in a future company via a SPAC is akin to a choice between these options:

  • IPO approach -- placing a $10,000 bet on the Kansas City Chiefs winning the 2024 Super Bowl on August 1, 2023 before pre-season begins, knowing the entire roster and payroll of the fully assembled team and its track record for the past few seasons
  • SPAC approach -- placing a $40,000 bet on the combination of Andy Reid (head coach), Clark Hunt (owner) and Brett Veach (general manager) on August 1, 2021 being able to find a team within two years capable of starting the 2023 season and winning the SuperBowl

Note those alternatives are not identical in their financial attributes or timeline. In the IPO approach, the investor is placing a direct financial bet on an existing team with a track record. Once invested, the investor owns a share of the team. If they grow unhappy with its performance, they can sell their shares at whatever the market is bearing at that time.

In the SPAC approach, virtually nothing is known about the eventual company other than it will probably play some professional sport, maybe football. The investor is betting upon the expertise of the founders to FIND a suitable company worth investing in at public scales. Because so little is known about the eventual target, demand for shares of the SPAC will likely be smaller, allowing fewer investors to buy more shares but in exchange for that risk, after the founders identify a target company, the SPAC investors have the right collectively to approve or veto the merger and IPO that would take the target public. If they veto, they not only get their $40,000 back, they might even get interest on their $40,000.

From all of that introduction and explanation, the key takeaways are these:

  • By legal definition, SPAC founders cannot have a specific acquisition target identified at the time the SPAC goes public, nor can it be in communication with any targets
  • By legal definition, a SPAC has a fixed window of time, typically two years, to identify an acquisition target, formulate a merger deal and win approval by the SPAC owners and the target to merge
  • If an acquisition target cannot be identified and a merger closed by the end of the fixed window, the SPAC must return the capital to the SPAC owners

So what happened with the Trump SPAC Deal?


Inside the Trump SPAC Debacle

In a nutshell, the SPAC deal involving Trump Media Technology Group (TMTG) and Digital World Acquisition Corporate (DWAC) involves all of the plot elements you would expect in a Trump dinner theatre production.

  • There is a failed business
  • There urgent needs for cash
  • There are violations of the law
  • There is fraud
  • There are loans and off-shore bank accounts
  • There is self-dealing
  • There are Russians

Based on the reporting in The Guardian here

https://www.theguardian.com/us-news/2024/apr/03/trump-media-es-family-trust-2022-loans

and The Washington Post here

https://www.washingtonpost.com/technology/2024/02/03/trump-social-dwac-investigation/

here is a summary of key dates, events and actors in the Trump SPAC saga.

  • Digital World Acquisition Corporation (DWAC) was founded on December 20, 2020 as a SPAC
  • a major backer of DWAC was ARC Capital of Shanghai, already under investigation by the SEC
  • Trump Media Technology Group (TMTG) was founded February 8, 2021
  • Truth Social is launched as an app on February 21, 2021 only thirteen days after the company was founded
  • CEO of DWAC begins private talks with Trump in March 2021 as potential target
  • CEO of DWAC apparently begins hinting to others that TMTG is the target, prompting large purchases of DWAC that attract the attention of investigators
  • two of the biggest holders of DWAC were Russian-American Anton Postolnikov and Ukrainian-born Michael Shvartsman
  • DWAC executed its IPO on September 21, 2021
  • Trump announced the deal for DWAC to take TMTG public in October 2021
  • immediately after, Postolnikov dumped his shares for $22 million and Shvartsman dumped his for $18 million
  • those two insider sales triggered a larger investigation into ALL of the initial DWAC investors

That's the first part of the saga. As the result of the events in Act I, the actual operations of TMTG and the Truth Social app are continuing to burn cash while the ability of DWAC to execute the merger with TMTG via IPO is frozen during the investigation. Act II reflects another round of dubious interactions as TMTG attempts to find cash to keep up the appearance of an operating company for Truth Social.

  • TMTG was already near failure due to low revenues by December 2021
  • Trump had zero ability to obtain loans from US banks
  • DWAC investors could not be convinced to chip in more money for that lifeline to TMTG
  • miraculously, funds were made available from an entity called ES Family Trust
  • a first payment of $2 million was made in December 2021
  • a second payment of $8 million was made in February 2022
  • existence of ES Family Trust dates back at least three years, meaning prior to 4/3/2021
  • the bank account of ES Family Trust exists in Paxum Bank located in Dominica
  • Paxum Bank is not licensed to do business in the United States
  • paperwork for the trust lists a Russian lawyer living in St. Petersburg, Russia as the settlor
  • records for the trust show Anton Postolnikov has access to the trust's account in Paxum Bank
  • Anton Postolnikov is actually a co-owner of Paxum Bank
  • Anton Postolnikov is the nephew of Aleksandr Smirnov who is a "close ally" of Vladimir Putin

NOTE: Aleksandr Smirnov in THIS sleazy Trump intrigue is not to be confused with Alexander Smirnov, the FBI informant who was indicted in February 2024 for lying to federal agents regarding the Hunter Biden / Burisma nothingburger, nor to be confused with a different Aleksandr Smirnov in Russia who is actually aligned with anti-Putin forces with numerous articles published online.

  • federal investigators were tipped off about the payments in October 2022 by a former TMTG employee
  • that informant told the FBI TMTG executives were initially wary of the incoming funds but decided to keep them because they could not stay afloat without the money
Based on the events reported by The Guardian and The Washington Post, it appears the key triggers for these investigations were
  • involvement of ARC Capital in the filing of the original SPAC since ARC was already under investigation for money laundering
  • suspicious trading in stock of DWAC prior to it announcing any target
  • a tip that the DWAC CEO was meeting with Trump in March 2021 prior to DWAC's IPO in September 2021
  • a tip in October 2022 that TMTG leaders had accepted $10 million as an operations lifeline from a foreign account and kept it

I am not familiar with all of the details that must be submitted when a company files for an IPO but I would guess an accurate list of all investors with more than $X,000,000 invested and a list of all foreign sources of funds would be on that list. Since Anton Postolnikov is likely the only actor with control of the account for the ES Family Trust and he co-owns Paxum Bank, it would be reasonable to assume federal officials are treating the use of ES Family Trust as a money laundering scheme to hide an off-shore bank as the true source of funds provided to TMTG. Certainly, federal prosecutors are looking at communication between the DWAC CEO and Donald Trump prior to DWAC's IPO as a securities violation. Again, under SPAC rules, the SPAC entity cannot have any target identified or selected prior to the IPO of the SPAC.

The guilty pleas filed on April 3, 2024 for insider trading charges technically do not involve Trump since Michael Shvartsman and the others were sharing information with friends and family, not with Trump, nor are there allegations Trump was aware of those conversations. However, they add to the overall atmosphere of sleaze permeating the entire saga which may reflect poorly on others as they have to defend themselves against actual criminal charges.

Long story short, I cannot imagine any circumstance under which federal officials will allow this charade to reach the point of Trump being able to cash out his position before the feds suspend all insider trades or the stock collapses to zero.


WTH

Tuesday, April 02, 2024

An Attack on Open Source Itself

It may not seem like it, but the world dodged a big one on March 28, 2024. A software security hack was identified and shared with the public that was absolutely breathtaking not only for its potential for harm but for the method of its insertion into the software ecosystem. It cannot be said we dodged the big one because, as will be explained below, the nature of this attack points out a much larger vulnerability in the entire software ecosystem stemming from the world's over-reliance upon open-source software frameworks and the world's underfunding of support for those open-source frameworks. Leaving that gap unaddressed guarantees more security flaws leveraging these weak points will be encountered in the future.


The XZ Utils Vulnerability - In a Nutshell

The security vulnerability publicly identified on March 28, 2024 involved a module of code called XZ Utils ("utilities") built for Linux based operating systems which provides functions for performing data encryption / de-encryption on streams of data as a host reads or writes data from disk or relays it from one external source to another destination. The XZ module was maliciously altered to allow a remote third party to trigger the capture of data passing through the XZ module in unencrypted form and allow remote execution of code. Since the XZ module is used by many other programs running on a system including remote logins via SSH or file compression utilities use to pack files to send to remote systems, this hack served as a common lever to exploit against multiple tools on the host.

At the time of discovery, the hack was found to have only propagated into nightly "development builds" of the latest Linux kernels used in a handful of Linux distributions, including SuSE, Redhat, Fedora, Debian and ArchLinux. For the hack to be exploited, a host had to be running one of the tainted Linux distributions and the host would have to be reachable for inbound connections from the Internet. Luckily, most large corporations do NOT run the latest version of ANY system in production and MOST hosts operate within protected interior network segments which are NOT accessible from any random point on the Internet. As such, the nature of this hack did not immediately jeopardize the integrity of 100% of all Linux servers on the planet.

However...

The DESIGN of the hack and method used to inject it into builds of the module chosen for the attack have identified two huge problems literally no one in the software industry has considered. The XZ hack utilized a technical design that recursively obfuscated the malicious code being inserted and delayed pulling that altered code into final binaries until very late in the build process, helping to evade detection. More importantly, the developers of the hack exploited unique HUMAN vulnerabilities with the open-source model for maintaining code which are the result of extreme gambles mega corporations are taking by USING open source to save money and earn billions for investors without FUNDING staff to provide the peer review needed by open source code. As a result, the open source world is demonstrating "tragedy of the commons" dynamics as private parties attempt to leverage a community "good" while contributing nothing to its support and betting someone else is so they get a free ride.


The Technical Attack Design

The party that developed the XD hack did not inject the hack into XD by directly modifying the source code of the particular targeted module. That approach would have put the change in clear view of both the module's official "maintainer" and the larger pool ("community") of developers and users. Instead, injection of the hack was obfuscated by at least four layers of indirection.

  1. Bogus test files consisting of compressed data containing the actual "hacked" code were added to a separate /test directory of the entire module. Every file in a module's source is subject to version control and delta tracking but developers are accustomed to ignoring the content of test files.
  2. This bogus "test file" was actually structured to alternate between 1024 bytes of random characters and 1024 bytes of actual code.
  3. A script used to prepare the source code directory for a build was altered to uncompress this "test file", strip out the sub-blocks of random characters and write the remaining code to a separate file for execution later in the build.
  4. After compiling the original unaltered source code for the XZ module, a final step in the build tested for certain platform target flags (kernel version, x86_64 architecture and GCC compiler) then linked the XZ module being packaged into binary through the ALTERED file containing the malicious code.

That's a pretty ingenuous approach for evading detection. Mask the hacked source code as compressed test data outside the normal "source" directory of the module. Further mask that compressed, hacked code content by intermixing blocks of random text to make that "test file" LOOK like random data rather than code if anyone ever happened to look at it. Compile all of the original code of the module into the expected final building blocks. Pull in the hacked code at the very last stage of the build when linking the final executable binary.

As ingenuous as the TECHNICAL design might be, that technical ingenuity is not what is causing developers and security experts to freak out over this hack.


The Human Attack Design

As clever as the code-level hack design may have been, the party originating this hack still had to INJECT the layers of the hack into the XZ source repository for victims to begin downloading it and building it into other systems. Each code project may have dozens or hundreds of developers with rights to check in suggested modifications but every project has a much smaller number of developers with "maintainer" rights to control which changes actually make it into a final build. Most projects have at most a handful of maintainers. The XZ Utils project had a SINGLE maintainer.

The hackers began interacting with the XZ maintainer in early 2022, at first posing as a willing developer named "Jia Tan" eager to "help" catch up with minor bug fixes and enhancement changes. "Jia Tan's" first change was checked into the code base on February 2, 2022. On May 19, 2022, user "Dennis Ens" (no way to know if the name is real) posed a question on the email forum used to manage the project following up on a question posed one week earlier. In the resulting chain of emails, another user "Jigar Kumar" (again, no way to know if the name is real) chimed in, browbeating the maintainer and suggesting the maintainer role be handed over to someone else with more time to keep up with requests.

These emails went back and forth from May 19 to June 29, 2022 at which point the maintainer stated he might consider assigning maintainer rights to "Jia Tan" who had been working on bugs and minor enhancements since 2022 though it wasn't clear if he was versed in the entire build. Between June 29, 2022 and mid 2023, the maintainer DID cede some maintainer rights to "Jia Tan". On June 28, 2023, the first change was added to the code ostensibly in unit test code. On July 8, 2023, a second change was made to disable the logic of the first change when performing certain types of test builds. On February 16, 2024, the project was altered to configure its version control system to stop tracking any changes to the script file that performs the last minute linking substitution. Finally, on March 9, 2024, the obfuscated and compressed script was added as a "data file" in the /test portion of the build and release 5.6.0 was published representing the full hack. All maintained by "Jia Tan."

In essence, the party that created this hack found a useful module that would provide useful access to multiple critical functions on hosts, found that module was maintained by a SINGLE PERSON, began interacting with the maintainer as a "contributor" to build up trust over the course of two years, then began harassing the maintainer under multiple identities over a period of months to convince the maintainer to cede control to a contributor who was actually one of the bad guys. And the rest of the internet world dependent upon the reliability and security of this module paid ZERO attention to control of this software being ceded to someone whose actual identity was never confirmed.


Avoidance by Luck Rather Than Design

Given the technical nature of the hack and the human angle used to initially inject it into the supply chain, there were no steps in the process that provided assurance that this vulnerability would be found before it was introduced into the much larger universe of Linux distributions. In reality, it was PURE LUCK that this vulnerability was found at all.

The hack was found when Andres Fruend, an engineer in Germany working for Microsoft (yes, a MICROSOFT employee helped find a catastrophic bug with LINUX software...), was testing software associated with something completely unrelated to the XZ module and noticed the performance of a host running his software was not performing as expected. The engineer enabled additional monitoring on all processes running on his host and that information pointed out that incoming SSH connections were taking more CPU resources than normally expected. Knowing that the software being tested was itself NOT a heavy user of SSH connections in the first place, the developer reviewed the SSHD process of the host and found it was spending more time when making calls to a library named liblzma provided by the XZ Utils package. The developer then noticed the XZ Utils module running on his system was not unique to his Linux distro but had been altered in the original maintainer repository where it might be pulled into MANY different Linux distribution builds. The developer reviewed that code, analyzed where the new library module originated, then saw how that file was being created by the script extracted from uncompressing the "test file", then uncovered the hack.

Fruend happened to find this because one of his test machines was loaded with a "nightly build" image of one of the targeted Linux distributions. Had he not undertaken this investigation, that same 5.6.0 release could have been folded into the next "Generally Available" release builds of dozens of Linux distributions in two or three weeks, rapidly widening the scope of the vulnerability.

Keep in mind, the developer who found this...

  • wasn't responsible for maintaining or testing XZ Utils
  • found the hack in a nightly image of his Linux distribution and might have ignored it as a temporary bug common to nightly builds versus "Generally Available" stable builds
  • happened to have enough insight to notice a problem with SSH
  • happened to have enough skills to reverse engineer the behavior of XZ Utills
  • happened to have enough skills to reverse engineer the build script for XZ Utils
  • was diligent enough to spend the TIME to trace the entire chain to find the hack

In other words, Fruend's skillset is NOT typical of most developers using open source modules in their work. Most developers are not intimately familiar with the build scripts of every module they use. Most developers are NOT experts at monitoring low level performance statistics of software such as memory, CPU load, open file handles, etc. to know what's normal and abnormal. Most importantly, most developers are conditioned to assume that if they are pulling external modules into their build from a trusted repository and if a SHA-256 checksum of the downloaded package matches the published checksum from the owner of the module, that the module is "safe" and unaltered. As long as the module builds locally without error, the module will be assumed safe.


What's Wrong with This Model?

The current model for open-source software is the result of two different rationales that have influenced adherents for fifty years. The older rationale for open-source was more idealistic and started with an assumption that software was a nearly pure reflection of human thought and since humans benefit from an unrestricted sharing of ideas, humans should benefit from an unrestricted sharing of code as well. Sharing code FOR FREE reduces the cost of useful software, shares useful programming techniques to encourage the development of MORE useful software and creates a positive feedback loop that benefits everyone. For ease of reference, we'll call this the "hippy" rationale.

A newer rationale, not entirely in conflict with the first, evolved in parallel with the first that pitched open-source software as the best means to improve the QUALITY of software by allowing more people to look at frequently used code and improve it by identifying and fixing defects and by devising additional functionality and helping implement those new functions. This rationale will be labeled the "transparency" rationale for open source.

Adherents to the "transparency" rationale for open source prefer it to proprietary, closed-source code because they believe the POSSIBILITY of more eyes reviewing code that has been publicly shared discourages innocent but sloppy code from being included in the distribution and allows ALL changes to be placed under a collective microscope of a pool of developers much larger than the core contributors to spot unintentional or intentional bad code. With proprietary source, in contrast, It is generally difficult to analyze the intended and actual behavior of a compiled program written by a small set of developers as part of a corporate product without access to the source code. More importantly, declaring code open source allows other developers to use the code within other projects and alter the code as needed for those projects. This attracts MORE interest in the code and provides a strong incentive for more outsiders to continually review the state of the code watching out for defects, security flaws or outright hacks.

At first, the "transparency" rationale for open-source can seem more practical than the original "hippy" rationale. Professionals in the field generally feel less silly citing the "transparency" rationale for open source than the "hippy" rationale, especially when lobbying for use of open source with their bosses. But in a modern business setting, the transparency rationale can be equally delusional for developers and managers alike, and far more dangerous to actual code quality. Why?

The transparency rationale is built upon a series of assumptions that are almost never all true for any given open-source module:

  • The thousands of developers USING an open source module are seldom as versed in the module's design or the language in which it is written as its maintainers and contributors. The idea that the average developer can review the average open source project and provide useful critiques of potential problems is a fantasy.
  • Those developers in the user community who DO possess the expertise to provide a sanity check on the code's quality / security do not necessarily have the time or incentive to actually perform such reviews and communicate concerns to the maintainer. If the code works for the user's intended use case and compiles successfully, generally no user will raise questions about the module. Surely, someone ELSE checked it, right?
  • Merely publishing code as open source does not guarantee even tens or hundreds of people will find value in the code to USE it or attempt to REVIEW it to identify defects or suspect functionality.
  • Publishing code as open source DOES guarantee that bad actors will have access to the code. Bad actors may actually spend time reviewing the code looking for defects to be exploited but their goal isn't to help the maintainer fix the problem, their goal is to track how the module gets used in larger projects that might be running in a target such as a large corporation or government entity.
  • The fact that thousands of open-source projects are managed in GitHub which has been mined as training data for ChatGPT makes it that much easier for bad actors to use information about a generic type of programming defect suitable for exploit to find open-source projects exhibiting that defect pattern to begin targeting a hack on those projects.
  • Not all open source projects have multiple maintainers and contributors to act as security checks on any one contributor adding nefarious modifications. In fact, the number of other open source projects USING a particular open source module has absolutely ZERO correlation with the number of maintainers and contributors. Some of the most widely used and critical open source packages have a SINGLE maintainer. Like XZ Utils.

That last bullet is the key takeaway for this entire exploit. The XZ Utils package is used by dozens of other utilities that are bundled with EVERY distribution of Linux which run on tens of millions of hosts, yet the XZ Utils package had exactly ONE maintainer for years, handling all bug fix and feature enhancement requests. The party creating the hack EXPLICITLY targeted this module BECAUSE of its use by tools performing security critical functions on a host and BECAUSE the code was maintained by a single person.

This XZ exploint is NOT an argument for abandoning open source and reverting to proprietary code. This exploit IS a wakeup call to governments and mega corporations around the world that open source software is not free software, even if no money is paid for licensing to use it. Entities benefiting from open source need to internally fund more staff with appropriate skills or fund participation in shared forums for ensuring EVERY project embedded in every application or operating system has multiple, independent experts analyzing code integrity. Entities creating entire applications or operating systems using open source for commercial distribution must be accountable for confirming they have confirmed full names, addresses, contact information and government / corporate affiliation of every maintainer of every open source module included in their product. None of this has been happening prior to March 28, 2024.


WTH

Monday, April 01, 2024

The Price of Trump's $175 Million Dollar Bond

Trump succeeded at identifying a firm to post his $175 million dollar bond required to appeal his New York State fraud judgement. The bonds have been backed by a firm named Knight Specialty Insurance based in Los Angeles and owned by billionaire Don Hankey. His firm makes money on sub-prime car loans. Hankey himself is estimated to be worth $7.4 billion. According to Hankey, the collateral offered up by Trump was cash and "investment grade bonds." The exact split isn't clear nor the exact nature of the "investment grade" bonds.

The reduction in the bond amount was frustrating and it would have been nice for the full amount to have triggered an earlier reckoning of the true state of Trump's finances and bring the entire charade down earlier rather than later. However, even with this $175 milliion dollar bond posting, Trump's financial position is still equally perilous. First, consider the bond amount and the amount Trump was likely required to provide as collateral. Even if that share was only twenty percent of the bond, that collateral amount would be $35 million dollars. That means Trump has locked up at least $35 million dollars of cash and bonds which CANNOT be used as collateral in ANY other financial transaction until Trump wins his appeal.

Ignore the question of whether Trump will win or lose the appeal. By securing this bond and enabling an appeal, Trump has now guaranteed this fraud cause will be tied up in litigation for at least another year, likely two. That means all collateral tied to this bond is unavailable for Trump to use for any other purpose for as long as he pursues his appeal. If he wins his appeal, things are great. If he loses the appeal, he actually owes the original judgment which at this time has NOT been reduced and still totals $454 million dollars.

Of course, what cannot be known at this point is where Trump's actual cash bankrupt point is. Clearly, there are two data points on a graph that might help find that point. One at $454 million or some fraction of that which he was UNABLE to raise and another at $175 million and some fraction of that which he WAS able to get someone to accept. It would seem pretty clear however that this bond deal has essentially zeroed out Trump's liquidity. Sure, he might have another twenty to forty million in loose change in the couch in the penthouse at 40 Wall Street or the spare bathroom in the ballroom at Mar-a-lago. However, for a businessman with BILLIONS in debt obligations with huge refinancing fees looming every year and enormous penalties he is likely to remain obligated to pay, he has used up all of his spare oxygen.

The key point for Trump is by "winning" this battle to find a way to pay this $175 million dollar bond, he has now turned perhaps his only beneficial legal strategy, DELAY, into the means of his own financial destruction. When Trump left office in 2021, his business had nearly $900 million in loans coming due over the next four years. Despite the threats of indictment that began looming immediately, he managed to refinance most of that $900 million but he still had another $780 million dollars worth of loans coming due between now and the end of 2028. A Forbes reporter recently attempted to itemize those loans

https://www.youtube.com/watch?v=dWgb8gVPrks
https://www.youtube.com/watch?v=FWAT-K3SqdQ

and the list included these deals:

  • July 6, 2024 - $12 million related to Trump Plaza
  • July 2025 -- $121 million on loan for ground rights to 40 Wall Street (not the building itself)
  • August 2026 -- $6 million on loan for Trump International Hotel
  • $360 million still owed as a minority partner in a building in San Francisco
  • $284 million still owed as a minority partner in another building in New York
  • his Doral golf club in Miami
  • his Seven Springs estate in outstate New York

Most of these have been collateralized and converted into bonds so the risk of him defaulting has been transferred to presumably thousands of faceless individual investors. There is certainly nothing in Trump's business history that indicates he will lose sleep over stiffing thousands of additional investors. However, it is not clear if he can effectively maintain the illusion of successful billionaire if every one of these loans gets written off.


WTH

Medicaid Expansion or Something Else?

Whether one believes it or not, most know that the theory behind providing healthcare via universal coverage is that doing so will REDUCE costs by leveraging the buying power that results from everyone being insured to bargain costs down while using the volume of care delivered to unify processes, measure results with standard metrics and improve efficiency, allowing MORE care to be provided at less cost. The reality of this theory is hotly debated but a cursory comparison of healthcare delivery via

  • Medicare -- offered to ALL over 65 under a single national program
  • Medicaid -- offered to low-income citizens under 65 via inconsistent partnerships between state governments and the federal government based upon the states' political willingness to participate and fund
  • Private group insurance -- paid for by companies for employees and sold / administered by for-profit firms
  • Private individual insurance -- paid for by individuals and sold / administered by for-profit firms

would clearly show efficiency goes DOWN and per-person costs go UP as the size of the pool of individuals being covered gets smaller. But that's in a perfect world where words mean what they're supposed to mean and corporations and politicians haven't conspired to publicly adopt "universal coverage" concepts while actually implementing something entirely different.

An opinion piece in Forbes uses an example of "Medicaid expansion" in North Carolina to shed light on a practice being adopted in multiple states across the country. In general, a substantial number of states across the country have been politically unwilling to expand Medicaid availability for their citizens, even when federal funding was available to shoulder most of the cost. More recently, some of those states have seemed to relax their opposition and have begun joining the federal program and expanding Medicaid benefits. The Forbes piece, written by Ge Bai, a professor of accounting and public policy at Johns Hopkins, explains the financial slight of hand going on behind the scenes in many of these so-called expansions, citing North Carolina as an example.

https://www.forbes.com/sites/gebai/2024/03/31/cms-invites-hospitals-to-raise-prices-and-buy-physician-practices/?sh=52437da2387a

Medicaid, like the national Medicare program, normally drives much of the cost savings required to provide more coverage by imposing a rigid fee schedule for a vast number of routine procedures and treatments with costs significantly lower than "retail" rates for such procedures. These costs are typically lower than rates charged to group insurance or individual insurance plan members. As with Medicare, the bargain between the "insurer" (in this case, the federal / state government partnership) and providers is that providers will gain access to a much larger pool of patients in exchange for collecting significantly lower fees on a per-procedure basis. By understanding that dynamic up front, both parties can optimize for operating within that dynamic and the government and taxpayers can save money and the providers can make more money.

That is not what is happening in North Carolina.

In North Carolina, politicians and providers processed the pressures imposed on them differently and landed on a different deal. North Carolina politicians were split into two factions. One faction wanted to expand Medicaid to improve care for the poor and likely reduce total costs via better preventative care being offered earlier. The other faction did not support Medicaid expansion because of normal conservative concerns about "big gummint", out of control entitlement spending and some generalized fear of being helpful to the poor. But that second faction also objected to Medicaid expansion because giant hospital chains feared massive reductions in revenue due to the obviously lower reimbursement rates offered by Medicaid versus traditional private insurance or full-retail rates charged to those without insurance. (Note... The careful, logical reader just needs to suppress any recognition of the fallacy of this concern given that, by definition, those benefitting from Medicaid expansion were previously unable to afford private insurance or services at uninsured retail rates to begin with. Providers would not LOSE any revenue by adding Medicaid coverage for people who couldn't afford healthcare at all.)

Because Medicaid benefits are provided as a partnership between participating states and the federal government, the exact mechanics of Medicaid are negotiated independently and vary between states. In essence, the federal government is trying to encourage state participation and alters terms of the partnership based on political forces at work in each state. In the case of North Carolina, politicians in the previously "hell no" faction pushed back during negotiations and, speaking for major health provider chains operating in the state, said the state will only participate if reimbursement rates paid to provider chains for Medicaid patients are significantly higher than typical Medicaid rates.

In fact, the rate structures adopted in North Carolina's Medicaid plan agreed to pay nearly RETAIL rates for most services to these major provider chains. KEY POINT. Paying "retail" rates for services violates the core financial assumption of this insurance model. That core assumption is that expanding the pool of insured increases patient VOLUME and providers are to find efficiencies from that higher volume to REDUCE per-patient costs yet still make more money than they would had those patients remained uninsured and not sought any treatment.

But the North Carolina plan went beyond that to break the model even further. The final deal didn't apply that near-retail reimbursement fee to ALL providers statewide. The deal only applied to the large, politically powerful hospital chains. Individual doctors operating their own unaffiliated practices are still expected to provide services at the lower rates typical of Medicaid across the country. KEY POINT. This sweetheart deal for major chains has resulted in an arbitrage opportunity for major chains to compete against small practices, net more dollars for the same services, then use the extra dollars as a carrot to continue buying out small practices (a trend well underway for over a decade). This is consolidating MORE doctors into the giant chains and resulting in MORE care being delivered that will be reimbursed at RETAIL rates rather than discounted rates. So the real dynamic is MORE PATIENTS getting services charged at RETAIL rates which WILL result in skyrocketing healthcare costs and skyrocketing profits for these chains.

Yet the resulting system will still be called "Medicaid" and when the inevitable reckoning arrives for the exploding costs, opponents of socialized medicine will say "we told you so." But this is not socialized medicine. This is a state government sanctioned creation of a healthcare oligopoly benefiting a handful of large hospital chains and insurance companies. Since the reduced competition and higher costs may not be recognized for a few years, politicians on either side of the philisophical debate at both the state and federal levels have little incentive to correct this distortion. Medicaid costs are split between the federal government and state participants but it's not nearly a 50/50 split. In 2021, total Medicaid program costs were $728 billion but the federal government picked up 69 percent of the costs and states paid for the other 31 percent.

This cost imbalance alters incentives for state politicians, even those opposing the program, to allow this kind of deal. State level opponents may not like Medicaid expansion but if it's going to happen, they can promise windfall profits to powerful corporations while leaving the federal government picking up the majority of the tab. State level proponents for Medicaid can similarly gain credit for delivering X dollars of new benefits to citizens while only picking up a fraction of the tab. And both proponents and opponents can buddy up to the large healthcare providers in the state and claim credit for the windfall profits headed their way. Even federal politicians in favor of Medicaid expansion can use this flawed model to claim credit for expanding the program, even though the actual implementation bears no resemblance to the traditional financial operating model that actually lowers costs. That will be somebody else's problem down the road.


WTH