Slashdot Mirror
Sklyarov Denied Visa to Return to U.S. for Trial
Kurt Foss writes "Visa applications for Alexander Katalov and Dmitry Sklyarov of ElcomSoft were recently denied by the American Embassy in Moscow, jeopardizing their return to the U.S. in time for
the company to face criminal charges for allegedly violating
the Digital Millennium Copyright Act (DMCA) last year. The
already rescheduled trial is presently set to begin in the
U.S. District Court of Northern California on October 21."
So it appears the US has the ability to get them into even more trouble now? Does Russia extradite crimals to America?
Huh? This is just wierd. It seems absolutely baffling that the visa office wouldn't have a specific procedure for letting in and out people who wish to defend themselves in a lawsuit in the united states.
I find it just about impossible to believe that this has never happened before. If there's no procedure to ensure that those who wish to enter the U.S. because of a U.S. court summons actually are allowed to enter, then surely at some point this problem has come up in a previous court case. Isn't there any precedent for this? How as this handled in previous cases? Surely someone somewhere must know.
OK .. would both parties be found guilty of criminal conduct in absentia if this is allowed to stand?
.. ie badly..
Maybe they would serve the prison term or pay the fines in absentia too. (EG not at all)
I think the more likely reason for the denial is some lower level functionary within Russia processed the application, with no knowledge of the circumstances or publicity around this action processed in the normal course of things
But of course there are a sort of appeal process in the diplomatic corps for dealing with this sort of thing. It will probably just take longer than the initial criminal hearing to take place.
If he can't get back to the US, he won't be able to defend himself, and will be considered guilty
What?? If he's not present then how does that show his guilt?
Ok, the prosecution can make there case but he's entitled to a defence.
Whats to stop him just never going to the US anyway? So he'll get fined, wow big deal, how would they get the money off him if hes not even in the country.
Visa processing time are notoriously long, I've been back in the UK for about 7 weeks trying to get a visitors visa.. both applications were refused under section 221(g) - or providing inadequate proof that you are to return to your native country (even though I have proof of a full time job that I have to return to). No I'm going back again next week under the waiver program, but you can't do diddly on that program (i.e. extending your stay, etc).
I also doubt that Russia would be on the Visa Waiver scheme (I haven't checked the list)... maybe when they filled out their forms, did they tick (YES) to one of the silliest questions on the US Visa form (silly because I'd assume you wouldn't admit to it!)->
Do you seek to enter the United States to engage in export control violations, subversive or terrorist activities, or any other unlawful purpose?
Are you a member or representative of a terrorist organization as currently designated by the U.S. Secretary of State?
Have you ever participated in persecutions directed by the Nazi government of Germany; or have you ever participated in genocide?
(YES) (NO)
Anyhow, lets hope they can get something sorted quickly... the US doesn't want to look like it is deliberately denying them entry into the US so that they lose the 'charges will be dropped if you testify', but the case pretty much requires them to be there.
Are you local? There's nothing for you here!
They pulled this trick on Slick Rick the rapper who happened to be born in England. They secretly appealed and won a decision on his deportation.
Then when he tried to return they surprised him with this order. Essentially saying he self deported and as such has no right to appeal...
Since the US Government is violating Dimitry and Elcomsoft's rights, I can't imagine many judges not dismissing the case if the visas remain ungranted:
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
I don't know what it is with the US and Russia. I lived in Russia for two years after High School and became fluent in Russian. I remember all the problems that each city's local Visa office (The dreaded OVIR) gave me in each city. I had to leave the country half way through my time there to get a new Visa. I felt that the officials there were difficult to deal with because it was an untrusted American they were dealing with.
It's kind of nice to know that it's a two way street in regards to Visas.
Good luck to Sklyarov.
The article says no reason was given. I doubt that's the case (they probably wouldn't tell journalists though).
Having been through the US visa process, I know how officious that lot can be. I have been refused a US visa twice (the visas were subsequently granted). To give you an insight to how assinine the US embassies can be, the first time was because they couldn't determine exactly how long I had worked for my company (I think it was refused under '221 (g)' (iirc)). Now they could have just phoned either myself up or the company up and asked.
Instead, I had to go to London, waste 4 hours sitting in the US Embassy in their "delicatessen" (they have this big square room, with about five subway-station-style windows at one end. First you line up to get a number. Then you wait for up to five hours until they call your number. There are newspapers in this room - these papers are all about moving to the US. The first half goes on about how terrible your country is and how wonderful the United States is, and the latter half is devoted to how they aren't going to give you a visa anyway. I kid you not!) Finally, my number is called. The officer asked one question. "How long have you worked for your company in the last five years?". I told them. >stamp stamp approved. A whole day wasted on a question that could have been answered by fax or phone without having to see me in person.
The second time I was refused was for a visa *that had already been approved* by the INS in the USA. We sent the forms into the US Embassy when I was back home. They refused it because one of the forms "was out of date". I downloaded the 'current form'. It was IDENTICAL IN EVERY RESPECT to the one they objected to apart from the date in the bottom. ABSOLUTELY IDENTICAL in all the boxes, the layout, the information, everything but the blasted date on the bottom! It delayed me for a week and my company not only lost a week of my time, they also had to pay extra as I had to change my airline ticket. It's only the INS that do this - I've had quite a few dealings with another US govt. agency - the FAA. They haven't minded about different versions of the same form which differ only in date.
The INS is absolutely *abysmal*. It's even worse than the IRS because they have so little accountability. The people who vote don't care because they don't have to deal with them, and the people who have to deal with them aren't allowed to vote!
Having said that, I greatly enjoyed my time in the USA and I think it's a great country - so please don't take my rant as a rant against the US - it is not. It's a rant about the INS. The INS are the worst kind of bureaucrats, and I wouldn't be surprised if Skylarov has been delayed by some petty bureaucrat playing his power-games over a form with the wrong frigging date in the bottom corner.
Oolite: Elite-like game. For Mac, Linux and Windows
Can't this guy use a phone? All he needs to do is testify, he's not on trial here. Don't people testify via telephone all the time?
Or maybe they can set up a Chat room for the testimonial?
All this technology and lawyers are still banging rocks together.
The article says that the agreement is to drop charges against Skylarov if he testifies in the trial against ElcomSoft. Thus, if he can't be there, he may be prosecuted.
--
Overcaffeinated. Angry geeks.
Yes, I believe a criminal background is one reason they could use to deny an entry visa. Catch-22
Well, one of the questions on a visa application form asks if you have ever been engaged in terrorist activities. Given the rather broad definition of terrorism just at the moment ... one has to wonder if contravention of the DCMA would count.
Answering yes to questions of that sort (there are others: are you a smuggler, are you a spy, etc.) generally leads to a pretty swift refusal.
flossie
Write now. Defend liberty
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all convictions, while the worst
Are full of passionate intensity.
Surely some revelation is at hand;
Surely the Second Coming is at hand.
The Second Coming! Hardly are those words out
When a vast image out of Spiritus Mundi
Troubles my sight: somewhere in sands of the desert
A shape with lion body and the head of a man,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Reel shadows of the indignant desert birds.
The darkness drops again; but now I know
That twenty centuries of stony sleep
Were vexed to nightmare by a rocking cradle,
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?
--w.b.yeats
I once was a consular officer, albeit not in Russia. Russia is what's known as a "visa mill". That means that there are a lot of folks who want visas, and, as a result, long lines. Most applicants get about 60 seconds at the window, whereupon the consular officer must decide yea or nay. It isn't an exact science. One looks for discrepancies between what the applicant says, how they appear, and their papers. In Skylarov's case, I have no idea how he appeared, what he was asked, or what he said. However, his story may have sounded strange, or he may not have explained the circumstances well. Hence, no visa.
The DOJ has nothing to do with visas, and the State Dept (NOT the INS) has nothing to do with the DOJ. Later, when I left the FOreign Service, I went to law school and clerked for a federal judge. We have several cases where defendants and/or witnesses couldn't get back in to the US. GUess what -- there's nothing the court or the DOJ can do to get anyone a visa. In one case, where an actual defendant couldn't appear, we continued the proceedings until such time that the government could produce the defendant. In another case, where a witness couldn't appear, we allowed a deposition transcript to be used ("declarant unavailable exception")
Trials in absentia may be permissible under state law, but I've never seen such in federal court.
Does anyone know more?
Glad I live in America, land of the free, where I am protected from these dangerous people.
-- Bob
1^2=1; (-1)^2=1; 1^2=(-1)^2; 1=-1; 1=0.
that's true...and makes sense now. i remember hearing ashcroft, soon after he got his position, going off on microsoft on pbs, all about how 'this administration' was determined to bring 'harsh justice to monopolistic behavior' i think were his words. and of course it was complete bs.
Just for fun, you can see a few of the 9/11 terrorist's visa applications. Judging by these, you'd *really* have to screw up your filing to be denied.
The article says Sklyarov's lawyers are protesting the visa denial. Isn't that backwards? Why not go to the court and say, "Our client can't show up because the government -- which is prosecuting him -- is denying him a visa. Therefore, the government can't both prosecute charges and prevent him from answering them, so all charges must be dropped!"
I am not a lawyer, but maybe someone who is could tell us if this argument is valid.
From the Visa FAQ linked from the planetpdf.com site:
* Q: How can an applicant learn why he/she was denied a visa at a post overseas?
A: An applicant is always told the reason for denial, orally or in writing. If an applicant does not understand the reason for denial, or wishes to offer further evidence to overcome the denial, he/she should contact the post where the application was made to determine that post's reapplication policy.
From the article:
Nonetheless, visa applications for both ElcomSoft employees were recently denied, she said; no reasons were given.
Is the US contradicting its own policy here?
There's 10 types of people in this world, those who understand binary and those who don't.
This would have been the first testcase that could overturn the DMCA. Don't allow them back in for the trial and there's no risk of the DMCA being overturned.
Other than to potentially overturn the DMCA, I really see no reason why Sklyarov or Elcomsoft would even bother to come over here, they did nothing illegal under Russian Law. Sure, it means they'll never be able to travel to the US again, but as it stands now they apparently can't do that anyway. So what is their incentive to try to get a visa that's been denied? (and have to go through all the hassle of a trial, and money for lawyers).
Maybe not a swap but buying people isnt out of the question.
Look at how the US is bartering with the Security Council members to support the latest Oil war.
"Dont veto and well make it worth your while."
If I was Skyboy, I wouldnt count out being handed over by his govt. His freedom CAN be bought, its just a matter of price.
As for US spies, you can count on one hand how many of them would actually be held in the countries they were spying. There was a case in eastern europe two weeks ago (bulgaria, romania,etc) which is a repeat of the Yoogosliavian farce from this summer where a US 'attache' was caught on video receiving documents from a minister in exchange for money, the minister was later tried in court and sentenced to jail based on the audio and video proof but their countries puppet govt APOLOGIZED to the US for holding the 'innocent' attache overnight!
All I know about international politics I learned on The Sopranos; the principles are the same.
What ever happened to the rite of Habeas Corpus? Since this has to do with the DMCA, it would have to be a criminal trial, and thus the trial cannot go on without him. If the DMCA allows prosecutors to violate due process, then it shouldn't be very long before it is deemed unconstitutional.
It might have been alright if they had waived their rights voluntarily, but they are being held against their will. If the trial is allowed to go on, the results should be very easily appealed. That is, if it is not deemed a mistrial.
While I am not a lawyer, a little bit of common sense goes (or used to, anyway) a long way.
"But of course bail is only granted if its deemed unlikely that the defendant will skip bail...?"
IIRC the problem with skipping bail is that you don't get your money back (not showing up for trial is just an offence in and of their own right). That's the reason why bail bondsmen are so interested in getting their clients who skip bail: They can't get their money back without the perpetrator.
Did Sklyarov get out on bail? What will happen now that he can't show up to reclaim it?
"Boy George has decided its ok to have your cake and eat it too." Umm...how exactly is the Executive Branch responsible for the actions of the Judicial Branch carrying out the laws written by the Legislative Branch. You may or may not have just cause to hate Bush, but is it really necessary to blame everything that goes screwy in this country on him?
Any more than, say, the US might wish to harm "rouge" nations? The idea that we're the most important nation in the world and that we need/deserve special treatment because of it is really a fallacy. There's plenty of nations (I'd go so far as to say most of them) who don't really care about the US and have no beef to grind. And pre-emptively claiming that we need immunity to prosecution because of the POSSIBILITY of false claims... well, that just strikes all kinds of wrong chords with me. It's a claim that the US is a) automatically in the right in any of it's actions b) can be depended upon to police it's own military (something that we actually have a pretty poor track record of). It makes us look like either arrogant hypocrites, or a country with something to hide. If bringing a false claim is so easy as to justify this claim to immunity, what reason is there for the court at all? If we're so positive that no US soldier would ever do anything to warrant investigation by this court, why are we afraid to allow them to appear before it? Is it an admission that the normal rule of law just doesn't work? Do we really believe there would be a concerted, organized effort to harm America via this court? If we do believe that, isn't our vulnerability to these claims something we should investigate on our own?