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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?
What would happen if they aren't able to be issued visas in time? Would it be constitutionally valid to try someone in absentia? The case going on in Philadelphia right now (can't remember his name right now, sorry) is interesting in that French authorities refused to extradite the defendant to the US because his original trial was held, and he was convicted, in absentia. This apparently contravened the European Convention of Human Rights, and the US had to agree to retry him before France would agree to the extradition. I wonder if there are any UN treaties that both Russia and the US would be a party of that might prevent poor Skylarov from more machinations of the US justice system.
Anyway, it's not like the US would ever send people into another country to kidnap someone whom they wanted to put on trial... Nah, that would never happen. </sarcasm>
Karma: Excellent Birds (mostly as a result of listening to Laurie Anderson)
The left hand doesn't know what the right hand is doing. Reminds me of the IRS. :-)
Someone put a black hole in my pocket and now I'm broke.
Quite the opposite in fact. Had they actually been allowed here, they would have been able to defend themselves and maybe create more attention for their case. I suppose it's good they won't be in a situation to face jail or stiff fines, but I wish they could've been allowed to have their voices heard in court.
Finally, math books without any of that base 6 crap in them.
In Russia they tell jokes about the insane bureaucracy in America.
"I think all foreigners should stop interfering in the internal affairs of Iraq"
-- Paul Wolfowitz, 7/21/2003
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.
Let me guess, they can't can't get a Visa to enter the country for their trial, because they are charged with crimes in the US?
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.
The Department of Justice demands their presence in the U.S., but the Department of State denies it. Neither organization is accountable to the other. It's not like the DoJ can say 'well they didn't show up, it's their fault...'
This is too amusing to NOT be picked up by the media again. I don't think it will result in protests so much as the DoJ and DoS being the butt of jokes for a few weeks, but still.
I am a science fantasy fan
(I'm sick of this DMCA nonsense. Can't we get that sh*t revised? Oh wait, the general public can't afford lobbyists so therefore our opinion doesn't count.)
The insane bureaucracy tells jokes about YOU!
Sounds like it's time for a new campaign...
Or maybe we can start a campaign to bring Dmitry here "virtually" via web-conferencing or something... he deserves the right to defend himself!
..On the other hand, maybe we should ask him first... maybe he's happy to have a legitimate excuse not to come...
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...
It is also said that the US State Dept. has no legal recource for refusing a visa, as in the Justice dept has no leverage with them to do anything. So thins might be Powell's way of asserting a forced verdict in this case. This might also set a precendence in the world-wide court, if we USA folks can procescute outsiders, yet we refuse these bad folks entry, what is the point? Guilty without trial?
Doesn't seem fair to me!
It isn't a lie if you belive it.
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
When he wants out of America they detain him. When he wants back into America they refuse him. If he was smart he'd send them a note pleading with them to find him guilty.
What?? If he's not present then how does that show his guilt?
Because otherwise there would be no incentive for people to show up to court.. They'd just be like 'ah screw it I know I'm innocent.. forget that..' so instead, if you don't show up, they just put in a verdict against you and then put out a warrent for your arrest.
Anyway.. in this case, there is obviously some kind of paper work they can file or something do have the trial date reassigned until they can be present.
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.
First, that four letter acronym was on porpoise, merely to give a humourous light to the situation.
Second, if you think the RIAA, MPAA, MS, etc have no stake in this trial, think again. Circumvention of digitally encrypted information is what this trial is about. Without DRM, copy protection, and protection under the law, the economic forecast for those organizations looks dim without the protection the DMCA gives them. Any encryption scheme where the key is given along with the data can be broken (CSS), and a simple substitution algorithm (Adobe) can be broken, so long as people are allowed to distribute the method.
Third, it's not like I just crawled out of my cave after the Y2K 'incident'. Most people who have been reading /. for 4 or so years have heard far too much about this case.
"History doesn't repeat itself, but it does rhyme." Mark Twain
The CIA killed her and framed him for it because of the research he was doing into Psychic Warfare and Mind Control. Wake up, you cad!
Because otherwise there would be no incentive for people to show up to court..
Effectivly they'd be assumed to be guilty then?
If I'm not mistaken (and I'm not expert on legal things) if you're arrested and charged you're only allowed to go free before trial if bail is granted, and skipping bail is an offence?
But of course bail is only granted if its deemed unlikely that the defendant will skip bail...?
You have to wonder what was put on the visa application.
"Reason for application: So I can defend myself against one of your crappy laws."
True irony is perhaps the highest form of humour.
flossie
Write now. Defend liberty
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
[Right Hand] Hey Lefty!
[Left Hand] Yeah?
[Right Hand] What'cha doin'?
[Left Hand] ......
[Right Hand] Well?
[Left Hand] Well, what?
[Right Hand] What are you doing?
[Left Hand] I do not know such information. Nor could I pass along said information if I did know such information.
Chas - The one, the only.
THANK GOD!!!
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.
Russia wont hand them over until the USA hands over FBI Agent Michael Schuler who was indicted for hacking into russian computers. After the US judge basically ruled that it is not a crime for US agents to commit a crime somewhere else, dont count on russia or the USA ever "swapping prisoners".
I am not entirely certain about this, but the only rational explanation I can conceive for these questions is that it is easier for the US to deport someone who lies on their visa application. So, if they later find out that you are a terrorist/smuggler/spy/communist/liberal/Canadian/ etc., immigration can just kick you out for lying on the visa form rather than having to haul you before a court.
Alternatively, perhaps the INS is just a bit naive.
flossie
Write now. Defend liberty
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.
Hi-
Exactly! They sent him his visa in the mail well after he was already dead. (months, IIRC) How hard is it for the INS to realize that he was one of the hijackers?
--Quentin
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.
He should sneak in from Canada and under the glare of TV lights show up in court at the appointed time. I can see the row that wouls happen in that court when the INS show up to deport him for being in the country illegally.
The INS is part of the DOJ - no need for collusion there.
Prime numbers are exactly what Alan Greenspan says they are -S. Minsky
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).
yeah, I've been there, when I applied for a student visa for my second trip to the US...
I had paperwork in hand from the university that I was planning to attend.. It even stated that I was officially accepted. So, after all paperwork crap was filled out, the bitch at the embassy's visa counter denied me entry for a bullshit reason (I think she made it up on the fly) - my tuition was approx. $14,800 a year, so I had to show proof that I had $15,000 x 4 years (bachelors degree) = $60,000 in cash or in a bank account or whatever... I NEVER heard of such a rule. Who in the right mind would pay for 4 years of college up front unless they have nothing better to do with their money?
They did eventually let me in... By a stroke of luck, the last immigration counselor I talked to, graduated from the same school that I was about to start at.
So my point is... They could've denied these guys entry for any reason. Their default policy is to NOT LET ANYONE IN. I personally know of at least a dozen people that had similar problems in that same embassy...
--- sig moved for great justice.
(The nice green little postcard you fill in on entry to the US)
:-)
Are you a member or representative of a terrorist organization as currently designated by the U.S. Secretary of State? (YES) (NO)
Have you ever participated in persecutions directed by the Nazi government of Germany; or have you ever participated in genocide? (YES) (NO)
(and so on and so forth, with "Are you seeking entry to overthrow the government?" especially notable)
Actually, my favorite is not the questions themselves, but two remarks at the bottom.
"WARNING: If you answered YES to any of these questions, you may not be permitted to enter the United States." (Like, why don't they add an eighth question, "Did you lie on any of the above questions?".)
and better yet, at the bottom there is a note saying "If you find a way to make this process less cumbersome, write to The Paperwork Reduction Project..." with a two-mile-long address. Yeah, duh! I'm sure terrorists will declare themselves as terrorists at the border. What did people smoke when they invented this, anyway?
There is a possibly that Dimitry finds himself in prison (a cost to the public purse). Under these grounds, State may refuse the visa.
I don't work for the gov, but a friend works at a US consulate in the visa department.
Ironically, unconvicted Russian Mafya goons, prostitutes and Islamic terrorists have no problems getting visas.
Just to let you all know that its not just Dmitry Sklyarov. Its ALL people trying to get a visa that are being delayed.
"Russian scientist Vladimir Braginsky, who has visited the United States regularly over three decades, has been waiting since July for a visa to collaborate on a billion-dollar, taxpayer-financed project involving 13 nations to prove Einstein's general theory of relativity.
Despite many calls to officials in Washington, Mr Braginsky ''has been left hanging for three months'' without any information on the status of his visa, said Mr Kip Thorne, a physicist at the California Institute of Technology."
The government is stupid,
is stupid,
is stupid,
the government is stupid,
in everything they do.
That's what happens when one part of the government doesn't allow another part of itself to get its job done. And you wonder why it takes years to get a stamp on a piece of paper or something stupid like that.
"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?
Yes, it is. With limited exceptions, the US Constitution applies to anyone under its jurisdiction, meaning that they have the right to free speech, the right to a speedy trial, the right to not have troops stationed in their homes here, etc. Gun ownership is the only one that comes to mind that may have exceptions, other than the exceptions anyone else is under (no yelling "Fire!" in a crowded theater, etc).
You can never go home again... but I guess you can shop there.
Looks like the gub'mint just does't want the DCMA to face a court test, at least not with a judge who has already expressed doubts of it's validity.
I'm an American. I love this country and the freedoms that we used to have.
And yet the US is the world only military and economic superpower and - de facto - runs the United Nations, and the World Bank. I don't know whether to laugh or cry.
If you were blocking sigs, you wouldn't have to read this.