September 17, 1787

Beyond Believable. FOX Says Serial Philanderers, Like Newt, Make The Best Presidents

2012-01-21T13:26:00.002-07:00

Fox's resident psych says that Newt's philandering, cheating and abuse of his prior wives will make him the perfect President.

No, this is not from the Onion, and yes, he is serious. According to "Dr." Keith Ablow the best evidence of Newt's qualifications are,

1) Three women have met Mr. Gingrich and been so moved by his emotional energy and intellect that they decided they wanted to spend the rest of their lives with him.

2) Two of these women felt this way even though Mr. Gingrich was already married.

3 ) One of them felt this way even though Mr. Gingrich was already married for the second time, was not exactly her equal in the looks department and had a wife (Marianne) who wanted to make his life without her as painful as possible.

Yes, you read that right. He goes on to say that

When three women want to sign on for life with a man who is now running for president, I worry more about whether we’ll be clamoring for a third Gingrich term, not whether we’ll want to let him go after one.

Now, if it's bad enough that this so called Doctor says that cheating on your wives numerous times and marrying three women who you conned into believing you loved them and wanted to spend the rest of their lives with you makes you an ideal President. But it gets worse. He also said that the manner in which he dumped his first two wives for new and improved younger versions is clear evidence of his strength. Our good Doctor has these precious insights to share,

Two women—Mr. Gingrich’s first two wives—have sat down with him while he delivered to them incredibly painful truths: that he no longer loved them as he did before, that he had fallen in love with other women and that he needed to follow his heart, despite the great price he would pay financially and the risk he would be taking with his reputation.

Conclusion: I can only hope Mr. Gingrich will be as direct and unsparing with the Congress, the American people and our allies. If this nation must now move with conviction in the direction of its heart, Newt Gingrich is obviously no stranger to that journey.

That's right. Cheating on your wives and then dumping them, one of whom was in the hospital with cancer, is a template for dealing with Congress.

And then our good Doctor concludes with his not very well concealed infatuation with Newt,

So, as far as I can tell, judging from the psychological data, we have only one real risk to America from his marital history if Newt Gingrich were to become president: We would need to worry that another nation, perhaps a little younger than ours, would be so taken by Mr. Gingrich that it would seduce him into marrying it and becoming its president.

Woah. If there's a Mrs. Ablow out there she has reason to be worried. And, whoever licensed this quack needs to review his status.

President Obama's Osawatomie Speech Defines The Democratic Vision Of America

2011-12-06T13:26:00.002-07:00

Finally, we will be having the debate that has been glossed over for the last thirty years. What kind of America do we want. The President framed the debate perfectly and left no doubt where he stands. Here are a few excerpts.

Ever since, there has been a raging debate over the best way to restore growth and prosperity; balance and fairness. Throughout the country, it has sparked protests and political movements - from the Tea Party to the people who have been occupying the streets of New York and other cities. It’s left Washington in a near-constant state of gridlock. And it’s been the topic of heated and sometimes colorful discussion among the men and women who are running for president.

But this isn’t just another political debate. This is the defining issue of our time. This is a make or break moment for the middle class, and all those who are fighting to get into the middle class. At stake is whether this will be a country where working people can earn enough to raise a family, build a modest savings, own a home, and secure their retirement.

Repeatedly he explains how we are a better when we act together and those who fail to recognize that ignore our history.

Now, in the midst of this debate, there are some who seem to be suffering from a kind of collective amnesia. After all that’s happened, after the worst economic crisis since the Great Depression, they want to return to the same practices that got us into this mess. In fact, they want to go back to the same policies that have stacked the deck against middle-class Americans for too many years. Their philosophy is simple: we are better off when everyone is left to fend for themselves and play by their own rules.

And here he pulls no punches as he lays out his firm beliefs.

Well, I’m here to say they are wrong. I’m here to reaffirm my deep conviction that we are greater together than we are on our own. I believe that this country succeeds when everyone gets a fair shot, when everyone does their fair share, and when everyone plays by the same rules. Those aren’t Democratic or Republican values; 1% values or 99% values. They’re American values, and we have to reclaim them.

The speech was on the 100th anniversary of Teddy Roosevelt's famous speech calling for a New Nationalism and the Square Deal. After describing Teddy's background and the benefits of the markets President Obama said,

But Roosevelt also knew that the free market has never been a free license to take whatever you want from whoever you can. It only works when there are rules of the road to ensure that competition is fair, open, and honest. And so he busted up monopolies, forcing those companies to compete for customers with better services and better prices. And today, they still must. He fought to make sure businesses couldn’t profit by exploiting children, or selling food or medicine that wasn’t safe. And today, they still can’t.

In 1910, Teddy Roosevelt came here, to Osawatomie, and laid out his vision for what he called a New Nationalism. “Our country,” he said, “…means nothing unless it means the triumph of a real democracy…of an economic system under which each man shall be guaranteed the opportunity to show the best that there is in him.”

Then, in a great jibe at his critics the President said

For this, Roosevelt was called a radical, a socialist, even a communist. But today, we are a richer nation and a stronger democracy because of what he fought for in his last campaign: an eight hour work day and a minimum wage for women; insurance for the unemployed, the elderly, and those with disabilities; political reform and a progressive income tax.

One of the best parts, which puts the lie to the Republican narratives we hear today, is this.

Now, just as there was in Teddy Roosevelt’s time, there’s been a certain crowd in Washington for the last few decades who respond to this economic challenge with the same old tune. “The market will take care of everything,” they tell us. If only we cut more regulations and cut more taxes - especially for the wealthy - our economy will grow stronger. Sure, there will be winners and losers. But if the winners do really well, jobs and prosperity will eventually trickle down to everyone else. And even if prosperity doesn’t trickle down, they argue, that’s the price of liberty.

It’s a simple theory - one that speaks to our rugged individualism and healthy skepticism of too much government. It fits well on a bumper sticker. Here’s the problem: It doesn’t work. It’s never worked. It didn’t work when it was tried in the decade before the Great Depression. It’s not what led to the incredible post-war boom of the 50s and 60s. And it didn’t work when we tried it during the last decade.

It was a wonderful, inspiring and hard hitting speech that lays down the gauntlet. I hope it is picked up by all Democrats running for office.

The Affordable Care Act Upheld Yet Again

2011-11-08T13:49:00.001-07:00

The District of Columbia Circuit, considered by many as the most prestigious Court of Appeals in the country, is the latest Circuit Court to uphold the Affordable Care Act. The case is Seven-Sky v Holder and it is important for several reasons. Two of the judges are Republicans, including a conservative icon, Judge Silberman. There was a dissenting opinion but only because that judge would have thrown the case out on jurisdictional grounds.

This is a very strong, well reasoned opinion. The case boiled down to whether the court would accept the plaintiffs argument that Congress could not regulate "inactivity." As discussed in this article that activity-inactivity argument is basically Constitutional misdirection and the DC circuit was having none of it.

As framed by the Court,

The contested issue here is whether the Government can require an immensely broad group of people–all Americans, including uninsured persons with no involvement in the health insurance and health care markets–to buy health insurance now, based on the mere likelihood that most will, at some point, need health care, thus virtually inevitably enter that market, and consequently substantially affect the health insurance market. Appellants say that Congress cannot regulate based on such sweeping generalizations. Only individuals who are voluntarily engaging in an “activity” related to interstate commerce–not the uninsured, who are “inactive”–are within the scope of the Commerce Clause.

The court's response goes on for many pages, but is best summarized in this paragraph,

The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

That last sentence is the key. There is no Supreme Court president supporting the argument that the individual mandate is unconstitutional. None.

The Court also pointed out the the absurdities that would result from the plaintiffs' argument.

Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. (citations omitted)

The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between “indirect” and “direct” effects on interstate commerce–because they were similarly unworkable.

The opinion discusses may Supreme Court precedents but relies most heavily on the great New Deal case Wickard v. Filburn. In Wickard,

[A] farmer ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock. Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim. It held that even growing wheat for personal consumption, not for sale in any market, could affect the national price, and therefore was within the Commerce Clause.

This conclusion was not only because his wheat might be diverted into the national market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19 (2005). Justice Jackson said even “if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” Justice Jackson thus recognized that the Act “force[d] some farmers into the market to buy what they could provide for themselves.” Although a regulation limited the size of the farms covered, the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market. Wickard, therefore, comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s “activity” could be as incidental to the regulation as simply owning a farm.

The citation of Wickard and more importantly Gonzalez v Raich is really critical. Gonzalez is a 2005 decision, in which Scalia wrote a concurring opinion. As discussed earlier this year,

in 2005, the Court decided Gonzalez v Raich, which should have much more of a bearing on the issue. Raich involved the question of whether the Federal Controlled Substances Act was Constitutional in so far as it regulated (criminalized) the private, noncommercial, growth and consumption of marijuana. The law was found to be within Congress’ Commerce Clause powers and was roundly criticized by many progressives. Whether one agrees with the result in that case or not, it does illustrates how broadly the Court, and Justice Scalia in particular, has been willing to read the powers of Congress under both the Commerce Clause and the Necessary and Proper Clause. In his concurring opinion Scalia stated,

The application of these principles to the case before us is straightforward. In the CSA [Controlled Substances Act], Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce “extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.” To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances–both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. (citations omitted)

To summarize, a non-economic, non-commercial, activity that occurs solely within a state can be regulated by Congress as long as it is an appropriate means for achieving a broader objective that involves regulating interstate commerce.

Anything can happen with the Supreme Court and there is reason to be skeptical about its most results oriented members. But for Scalia and the rest of the radicals on the Court to strike down the ACA they will have to find heir way around some very old and very new decisions, including a concurrence that Scalia authored.

Breaking: Supreme Court Rules Social Security Is Constitutional

2011-08-29T21:27:00.005-06:00

Ok, as everyone who was paying attention in High School knows, this news actually broke in 1936. But Rick Perry was not paying attention so this is for him. You might enjoy it also.

Rick Perry, world renowned Constitutional scholar and bloviator of inanities par excellence, has issued his legal opinion that Social Security is unconstitutional. Perry originally issued this opinion in his book, and he restated his opinion in a political event.

And beyond expressing the results of his extensive legal research Perry has said Social Security is a lie and a ponzi scheme.

This is, of course, utter horse pucky as explained in a really great article from the hard working civil servants at the Social Security Administration designed for third grade readers that even Perry might comprehend.

The case that decided the Constitutionality of Social Security was Helvering v Davis. It was decided simultaneously with cases challenging the unemployment insurance provisions of the Social Security Act.

Now before getting to Mr Perry's position there is an important point to remember. Rick is entitled to the view that the Social Security is bad policy and he may disagree with the Helvering decision, but he is not entitled to the view that the law is Unconstitutional. As a guy who allegedly graduated from high school and went to Texas A&M he should know that since the decision in Marbury v Madison in 1803, it is settled law that the Supreme Court is the final arbiter on the question of whether a law is Constitutional. He can agree with or disagree with Supreme Court decision, but if the Court decides that a law is Constitutional that is the final word until such time as the Court reverses itself, which happens but rarely. (A&M is a school with a proud tradition and all A&M alumni should petition the school to investigate whether he truly did graduate.)

Moving on, the principle issue in the case was whether Social Security violated the Tenth Amendment. That is the provision which most Constitutional scholars say is a restatement of a truism,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Or, stated another way, "the Federal Government, which did not exist before this document was ratified, and which exists only by reason of the provisions of this document, only has the powers granted to it by this document. Therefore, accordingly and obviously, all the other rights and powers that existed in the world before this document that were not given to the Federal government by this document continue to reside wherever they reside."

The Court explained that since there were provisions in the Constitution that gave the Federal Government the powers it was exercising through Social Security, there was no Tenth Amendment problem. First, the Court said,

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. . . . The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.

Now it would seem that is something that Perry and would warm right up to. The Court is saying that Congress has broad discretion and the Court shouldn't second guess their judgement.

But the Court didn't stop there. It went on to talk about how the needs of the Nation can change and that Congress can respond to those changes.

Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times.

The purge of nationwide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from State to State, the hinterland now settled that, in pioneer days gave an avenue of escape. . . . Spreading from State to State, unemployment is an ill not particular, but general, which may be checked, if Congress so determines, by the resources of the Nation. If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co., supra, has set the doubt at rest. But the ill is all one, or at least not greatly different, whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house, as well as from the haunting fear that such a lot awaits them when journey's end is near.

Wow, that's some heady stuff. It's reasonable for Congress to recognize the calamities befalling the Nation and its people and try to address them.

But then the Court suggested that Congress should just not have a free hand to act willy nilly, unless it had some facts to back its actions. The Court looked at the record and found that Congress had indeed done its homework. This paragraph is a jem for the ages.

Congress did not improvise a judgment when it found that the award of old age benefits would be conducive to the general welfare. The President's Committee on Economic Security made an investigation and report, aided by a research staff of Government officers and employees, and by an Advisory Council and seven other advisory groups. Extensive hearings followed before the House Committee on Ways and Means, and the Senate Committee on Finance. A great mass of evidence was brought together supporting the policy which finds expression in the act. Among the relevant facts are these: the number of persons in the United States 65 years of age or over is increasing proportionately as well as absolutely. What is even more important, the number of such persons unable to take care of themselves is growing at a threatening pace. More and more, our population is becoming urban and industrial, instead of rural and agricultural. The evidence is impressive that, among industrial workers, the younger men and women are preferred over the older. In times of retrenchment, the older are commonly the first to go, and even if retained, their wages are likely to be lowered. The plight of men and women at so low an age as 40 is hard, almost hopeless, when they are driven to seek for reemployment. Statistics are in the brief. A few illustrations will be chosen from many there collected. In 1930, out of 224 American factories investigated, 71, or almost one third, had fixed maximum hiring age limits; in 4 plants, the limit was under 40; in 41, it was under 46. In the other 153 plants, there were no fixed limits, but in practice few were hired if they were over 50 years of age. [n6] With the loss of savings inevitable in periods of idleness, [p*643] the fate of workers over 65, when thrown out of work, is little less than desperate. A recent study of the Social Security Board informs us that one-fifth of the aged in the United States were receiving old-age assistance, emergency relief, institutional care, employment under the works program, or some other form of aid from public or private funds; two-fifths to one-half were dependent on friends and relatives, one-eighth had some income from earnings, and possibly one-sixth had some savings or property. Approximately three out of four persons 65 or over were probably dependent wholly or partially on others for support. [n7]

Bolding Added.

This was written in 1936. 1936. It could have been written today.

And here is where the Court puts the stake in the heart of the tenthers and their fellow travelers. This is a national problem that cannot be dealt with by the States separately.

The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. This is brought out with a wealth of illustration in recent studies of the problem. [n9] Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors. We have seen this in our study of the problem of unemployment compensation. Steward Machine Co. v. Davis, supra. A system of old age pensions has special dangers of its own if put in force in one state and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.

This last paragraph is a verbal back of the hand to all the bozos that existed then and their offspring who are with us today who argued that Social Security would breed dependancy.

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield.

Look Rick, the law is Constitutional. You may not like it. Fine. But that doesn't affect its legality. And on a political note. you should tread lightly. Americans know where they've been, know where they are, and know where you want to take them. The hole you are falling in to is really deep.

Important Teacher Free Speech Decision With Ironic Twist

2011-08-21T14:28:00.002-06:00

The Ninth Circuit issued a decision on August 19, 2011 which is an important victory for teachers and academic freedom in school. In Farnan v Capistrano Unified School District the court ruled that a high school teacher could not be sued for violating the Constitutional rights of a student who alleged that the teacher had made disparaging comments about religion, and Christianity in particular.

This case is important because it reinforces the academic freedom we expect to be granted our teachers, even those in high school. But it also demonstrates something that lawyers are familiar with but which can be frustrating for others. One of the precedents relied on in this case was a very recent Supreme Court decision that immunized Attorney General John Ashcroft from suit, a ruling that most civil libertarians disagree with. But first, the Farnan case.

The facts in the Farnan case are straightforward. Farnan was a fifteen year old student in an advanced placement course on European history. The course materials made clear that the role of religion would be discussed at length. During the discussions, the teacher, James Corbett, made some very pointed remarks about how serfs were duped by their religious beliefs and how the churches manipulated them. He compared the situation of the serfs to Republican voters in red states who are influenced by religion. He also equated belief in religion to belief in the Spaghetti Monster behind the moon. Here's an example,

I mean, all I’m saying is that, you know, the people who want to make the argument that God did it, there is as much evidence that God did it as there is that there is a giant spaghetti monster living behind the moon who did it. . . .

Farnan the student, took offense, but instead of talking to his teacher, he quit the class and sued. He argued that his first Amendment right to free exercise of religion and against the establishment of religion were violated and that he was entitled to relief under 42 USC 1983. That is the 1871 civil rights statute which is used to sue government officials for Constitutional violations.

The Court noted at the outset that the potential for liability existed because the Establishment Clause applies “not only to official condonement of a particular religion or religious belief, but also to official disapproval or hostility toward religion." Though having reached that threshold, the Circuit dismissed the lawsuit because it found the teacher Corbett was entitled to qualified immunity from suit. It reached this result by applying the two part test for qualified immunity,

(1) whether, taking the facts in the light most favorable to the nonmoving party, the government official’s conduct violated a constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct.

The court noted that you need only meet one part of the test to find immunity and in this case the court held that the second test was not satisfied.

We have little trouble concluding that the law was not clearly established at the time of the events in question — there has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion.

While that was the basis for the decision and could have been the end of the discussion the court went on to describe why it thought Corbett's statements were not Constitutionally inappropriate.

The Supreme Court has long recognized the importance of protecting the “robust exchange of ideas” in education, “which discovers truth ‘out of a multitude of tongues.’ . . . This academic freedom will sometimes lead to the examination of controversial issues. Both parties agree that AP Euro could not be taught without discussing religion. We have no doubt that the freedom to have a frank discussion about the role of religion in history is an integral part of any advanced history course. Indeed, a collective of organizations including the American Association of School Administrators, American Federation of Teachers, National Education Association and National School Boards Association, has long acknowledged that “[b]ecause religion plays a significant role in history and society, study about religion is essential to understanding both the nation and the world.”

. . .

In broaching controversial issues like religion, teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority. . . . But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

It is a good well reasoned decision, but will it stand if it is appealed to the Supreme Court? Well, that's the rub. Because in reaching this decision the Ninth Circuit relied on a two month old Supreme Court decision of al-Kidd v Ashcroft in which The Supreme Court reversed the Ninth's ruling with very harsh language. In that case, Al-Kidd was arrested and detained under the material witness statute. He sued Ashcroft arguing that the statute was used as a pretext to detain him. The Supreme Court said that Ashcroft was eligible for qualified immunity because at the time of al-Kidd's arrest, "not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional."

We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity.

In writing its decision in Al-Kidd, Scalia castigate the Ninth Circuit for its contrary ruling, saying

We have repeatedly told courts—and the Ninth Circuit in particular, . . . not to define clearly established law at a high level of generality. . . . The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.

Whether one agrees with the Al-Kidd ruling or not, the standard is clear. And that standard was applied in the Farnan case. A reversal by the Supreme Court would require some legal contortions by Scalia and the rest of the conservatives, the like of which might be difficult even for them.

One final note. This case is in marked contrast to the recent 7th Circuit decision in Vance v Rumsfeld where the court held that Rumsfeld could be sued for violating the Constitutional rights of Americans in a war zone. The court held that Rumsfeld was not entitled to qualified immunity because,

The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.

Here we have the opposite. A case where there is no hint from statutes or prior decisions that the actions are unconstitutional and, beyond that, where the court has serious doubts that they are unconstitutional.

First Time. Court Of Appeals Says Rumsfeld Can Be Sued For Constitutional Rights Violations

2011-08-09T16:03:00.004-06:00

The Seventh Circuit issued a decision in Vance v Rumsfeld that is a first for a court of appeals. The decision holds the Donald Rumsfeld can be sued in his personal capacity for violating the Constitutional rights of American Citizens. This comes on the heels of the District Court decision last week in Doe v Rumsfeld that also allowed a suit by a citizen against Rumsfeld to proceed.

The court did not rule that the plaintiff's rights had in fact been violated. That is yet to be decided. But it did hold that the case could proceed and Rumsfeld could be personally liable if the allegations are proved.

The Court noted that the government supported its opposition to the case going forward solely on the bases of cases involving suits by non citizens. In rejecting those arguments the Court stated,

Whether or not one agrees with those decisions, the difficult issues posed by aliens’ claims should not lead courts to extend the reasoning in those cases to deny all civil remedies to civilian U.S. citizens who have been tortured by their own government, in violation of the most fundamental guarantees in the constitutional pact between citizens and our government.

Ouch.

The facts in the case tell a lengthy and chilling story. Here are some highlights from the opinion,

Vance and Ertel, two young American civilians, . . .worked for a privately-owned Iraqi security services company, Shield Group Security. . . . Over time, Vance became suspicious that the company was involved with corruption and other illegal activity.

. . . .

While Vance was home in Chicago for his father’s funeral, he contacted U.S. government officials to report his suspicions. He met with an FBI agent, who arranged for Vance to continue reporting suspicious activity back to Chicago. The FBI agent also requested that Vance meet U.S. government officials in Iraq to report his observations.

. . .

Vance told his friend and colleague Ertel that he had become an informant, and Ertel contributed information as well. The plaintiffs were frequently in touch with their government contacts, sometimes multiple times a day.

. . . .

Shield Group Security officials became suspicious about the plaintiffs’ loyalty to the firm. . . . Plaintiffs called their U.S. government contacts in Iraq for help. They were told that they should interpret Shield Group Security’s actions as taking them hostage, and should barricade themselves with weapons in a room of the compound. . . .

They were awakened and arrested, handcuffed, blindfolded, and driven to Camp Prosperity, a U.S. military compound in Baghdad. . . they were placed in a cage, strip-searched, fingerprinted, and issued jumpsuits . . . and held incommunicado in their cells . . . They each had a thin mat on concrete on which to sleep, but the lights were kept on 24 hours a day.

After two days, Vance and Ertel were shackled, blindfolded, and transported to Camp Cropper, a U.S. military facility near Baghdad International Airport. [They were held] incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment — Vance for three months and Ertel for six weeks. . . [T]hey were strip-searched while still blindfolded, . . . held in solitary confinement, in small, cold, dirty cells and subjected to torturous techniques forbidden by the Army Field Manual and the Detainee Treatment Act. . . . The lights were kept on at all times in their cells, so that the plaintiffs experienced “no darkness day after day” for the entire duration of their time at Camp Cropper. . . . Their cells were kept intolerably cold, except when the generators failed. . . . There were bugs and feces on the walls of the cells, in which they spent most of their time in complete isolation.

. . .

Vance and Ertel were never charged with any crime or other wrongdoing, nor were they designated as security threats. Instead, both were eventually released and dropped off at the airport in Baghdad to find their way home.

This is a very lengthy decision, much of which is devoted to procedural questions. But its main conclusion is that a suit against a government official for Constitutional violations, a so-called Bivens suit, can be tried even for actions in a war zone. It should also be noted that there was a dissenting judge who thought extension of Bivens remedies into war zones was a step too far.

In order to hear a Bivens case courts do a two part analysis. First, the court must determine if there is an alternative remedy. In this case the Court found none. Second, the Court examines whether there are special circumstances in the case that caution against allowing the case to proceed. In this case the government argued that since the alleged violations occurred in a war zone, that is a special factor which should preclude the case moving forward.

The Court summarized the Government's position thusly,

The unprecedented breadth of defendants’ argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants’ theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom.

In rejecting this argument the court stated,

Our courts have a long history — more than 200 years — of providing damages remedies for those whose rights are violated by our government, including our military.

. . .

If we were to accept the defendants’ invitation to recognize the broad and unprecedented immunity they seek, then the judicial branch — which is charged with enforcing constitutional rights — would be leaving our citizens defenseless to serious abuse or worse by another branch of their own government. We recognize that wrongdoers in the military would still be subject to criminal pros-ecution within the military itself. Relying solely on the military to police its own treatment of civilians, however, would amount to an extraordinary abdication of our government’s checks and balances that preserve Americans’ liberty.

If this case goes to trial and if it comes back to this Court on appeal, here is a little taste of the Court's view of the heinous nature of the allegations.

Examining the plaintiffs’ claims against the backdrop of the Supreme Court’s decisions on prison conditions of confinement and prison treatment cases, we remember that abuse in American prisons was once authorized and even thought of as part of the punishment of prisoners. . . chaining inmates to one another and to hitching posts in the hot sun . . . the lashing of inmates with a “wooden-handled leather strap five feet long and four inches wide” as part of authorized corporal punishment program . . . the use of a “Tucker telephone,” a hand-cranked instrument “used to administer electrical shocks to various sensitive parts of an inmate’s body" . . . . . .

Today, the idea that a prisoner in a U.S. prison might be abused in such a manner and not have judicial recourse is unthinkable. While the Constitution “does not mandate comfortable prisons, . . . neither does it permit inhumane ones.” Farmer, 511 U.S. at 832 (citations omitted) (noting that the Eighth Amendment requires that prison officials “ensure that inmates receive adequate food, clothing, shelter, and medical care, and . . . ‘take reasonable measures to guarantee the safety of the inmates’”). If a prisoner in a U.S. prison had his head covered and was repeatedly “walled,” or slammed into walls on the way to interrogation sessions, we would have no trouble acknowledging that his well-pled allegations, if true, would describe a violation of his constitutional rights.

. . .

If a prisoner was kept awake as much as possible, kept in insufferably cold conditions, and not given sufficient bedding or clothing, we would likewise believe that there could well have been a violation of his constitutional rights.

. . . .

The plaintiffs in this case, detained without charges, have pled in detail allegations of such severe conditions and treatment, the likes of which courts have held unconstitutional when applied to convicted criminals in U.S. prisons. The allegations of abuse state claims for violations of the constitutional right not to be deprived of liberty without substantive due process of law.

One last thought. The wheels of justice grind slow but they grind fine.

Also published at September 17, 1787.

Looking Forward, Obama Faces Two Choices This Weekend

2011-07-26T14:38:00.002-06:00

It is increasingly clear that the debt limit will not be raised before we default, which means we will run out of sufficient funds to pay our bills. Before that happens the President will have to choose between two options. He can announce that he has the authority to ignore the debt limit and order the Treasury to continue issuing debt. Or, he can announce that the Treasury will begin to delay or stop payment on bills as they come due. Each choice is fraught with risks.

Here are the basic facts. Starting week after next, if we cannot borrow, the Treasury will receive tax receipts that will only allow it to pay about 56% of its expected bills for the month. Projections for the entire month show $210B of revenue to pay $375B of bills. That means for very $100 in bills only $56 will go out. Those bills are for everything: salaries, contractors, Social Security, and thousands of other categories totaling 70 million checks per month.

The President's first option is to issue an Executive Order announcing he has directed the Secretary of Treasury to continue issing debt, nothwithstanding the debt ceiling. He will cite as authority some emergency power of the President and support it with determinations that the debt limit conflicts with one or more provisions of the Constitution and/or other Federal Statutes. It is not the purpose of this article to discuss the merits of those legal argument. The 14th Amendment argument is discussed here. Some lawyers think the arguments are strong, others think they are weak. Whatever side one comes down on it is sufficient to say there are colorable legal arguments that can be made by the President if he so choses and decides to leave it for later to fight the issue out in the courts.

The President has a second option. He can declare that once borrowing stops he will have to curtail or delay the payment of bills. He has three choices for distributing limited funds. He can decide to pay some bills and not others, essentially choosing winners and losers. He can decide that all bills will be paid on a pro rata basis. Or he can simply decide that bills will paid in the order they are due. No matter what course he choses it is probable that interest payments on debt held by the public will always be paid on time. The same is probably true for Congressional salaries given the 27th Amendment, but he may want to litigate that also.

My guess is that he will choose the last course. Choosing winners and losers introduces a whole host of other problems and has questionable legal authority. Pro-rata payment would be fine, but the complexity of administering that over time would be immense. Paying bills on a first in first out option is the easiest politically and operationally.

If he choses that option it will mean, for instance, that August Social Security checks will be late. Those paid early in the month may only be a week late, but as the month progresses, the delays will increase. And the delay will be compounded in September. The same will be true for Medicare payments to Doctors, hospitals and for medicines, payments to states for Medicaid and unemployment, checks to members of the military and all other government workers, and payments to all Federal contractors, etc.

If I had to bet, I would say the President is not going to announce he can issue debt above the debt limit because that would be a truly profound assertion of Presidential power. Let's be clear. We are talking about the President having the power to unilaterally decide whether he will comply with laws that are duly enacted by Congress and signed by the President. To the best of my knowledge no President has done that, in this way, since Lincoln suspended the Habeas Corpus provisions of the Judiciary Act of 1789. The action was challenged by a prisoner but Lincoln ignored a court decision which ruled the action Unconstitutional. Eventually, however, Congress essentially ratified his action.

This is not the same as the President's decision to not defend the Constitutionality of DOMA, the Defense of Marriage Act. In the case of DOMA, the Constitutionality of the law had been challenged in court. The President decided that the law was no longer Constitutionally defensible and argued that position in court. However, he also announced that he would continue to enforce DOMA until the courts struck it down.

This is not like the President's decision regarding Libya and the War Powers Act. While all Presidents have questioned the Constitutionality of the War Powers Act, all have generally complied with it. In the case of Libya, the President is arguing that he has consulted with Congress and in any event the Act doesn't apply because we aren't involved in hostilities. Whether one agrees or disagrees with the President's position he is clearly not taking the position that he even though the Act applies he is violating it based on his determination of its Constitutionality.

In the case of the debt limit the President would be directing the Treasury to ignore a law that clearly applied to its actions. He would be doing so even though the law has not been challenged let alone held to be Unconstitutional by a court.

Virtually all legal scholars believe that the President has a duty to enforce the law regardless of what he thinks about it because all laws that are duly enacted are presumptively Constitutional. This is a basic tenet of our legal system that was recently referred to in the 6th Circuit Decision upholding the Affordable Care Act

The minimum coverage provision, like all congressional enactments, is entitled to a “presumption of constitutionality,” and will be invalidated only upon a “plain showing that Congress has exceeded its constitutional bounds.” . . . The presumption that the minimum coverage provision is valid is “not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power . . .(citations omitted).

No Court has held that the President has the power to issue a binding ruling that any law, such as the debt limit, is Unconstitutional. Rather the courts have held that such power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, the debt limit is the law of the land.

Most Presidents have respected position and the circumstances where laws have been ignored are rare. President Obama may decide that this situation presents an emergency with such consequences that he needs to assert the authority to ignore the law. But I suspect he won't. He takes the long view and opening this pandora's box would be fraught with greater risks for our country than dealing with the problems associated with having insufficient funds to pay our bills on time.

Whichever course he choses he will need to announce it before the debt ceiling is hit. If he choses not to assert the authority to override the debt limit then the sooner he announces that, the better. Yes, he is concerned about spooking the market. But such an announcement may finally light a fire under the Tea Party voters when they understand that they will be impacted financially. We can only hope. One thing is for certain. The time for appeals for bi-partisanship and compromise is over. It is time for a lesson in stark reality.

Time To Give Republican Voters A Dose Of Reality

2011-07-24T14:18:00.002-06:00

The only thing that will cause the Republicans in the House to pull back from the cliff is for their voters to start screaming at them. That will only happen when those voters understand how default will affect them personally, in the pocketbook. The President has talked in vague terms about those affects. But he has been trying to avoid panic in the markets as well as in the public. At this point, panic is the only weapon he has left.

People need to be told what payments will be delayed or not made. We are talking about checks for Social Security and veterans, to government contractors, to states for Medicaid and other things, just to name a few. They also need to know what federal services will be halted because of a lack of funding.

Starting week after next, if we cannot borrow, the Treasury will receive tax receipts that will only allow it to pay to about 56% of its expected bills for the month. Projections for the entire month show $210B of revenue to pay $375B of bills. That means for very $100 in bills only $56 will go out.

Most people don't understand or care about "the markets," interest on bonds and all that other stuff. They do care about their own checkbooks. Well, starting in the first week of August those checkbooks will all take a hit. There is hardly a person who will not be directly or indirectly affected when those checks are delayed or stop coming entirely.

There may be a few item, such as interest, that have a statutory preference for payment. For everything else the President has essentially three choices in distributing limited funds. He can decide on winners and losers by paying some and not others. He can pay them all on a pro rata basis. Or he can simply have them paid in the order they are due. My guess is that he will choose the last course.

Nothing will get the Tea Party voters calling their Members of Congress faster than to be told in explicit terms, with amounts and dates, that their August Social Security check will be three weeks late, their September check will be seven weeks late, and that Medicare payments for their Doctors, hospitals and medicines will not be paid on time and could be delayed months.

It is time to tell these people the truth. And if that causes panic, so much the better. Because it will take their panicked calls to the legislators to bring about a change.

One other thing. There are some who think that since moneys have been appropriated they have to be spent and that sets up a conflict between the appropriations laws and the debt limit law. No such conflict exists.

Appropriations acts tell the president to spend. The debt ceiling does not tell him not to spend, it merely prohibits him from borrowing. This is a critical distinction because each appropriations act begins like this,

"The following sums are appropriated, out of any money in the Treasury not otherwise appropriated."

The key words are "out of any money in the Treasury." The appropriations acts only direct the President to spend money that is in the Treasury. They do not direct that money be put in the Treasury. The laws that do that are the laws that impose taxes which are deposited in the Treasury and the laws that authorize borrowing, the proceeds of which are put in the Treasury. The debt ceiling operates as a limit on that borrowing power. Bottom line, if there is no money in the Treasury the appropriations act doesn't appropriate anything.

When you hit the debt limit the only money "in the Treasury" is money from tax receipts. And that money is all the money the Treasury can spend. This is not a situation involving impoundment of funds, whether by rescission or deferral. They are governed by The Budget and Impoundment Control Act of 1974 They involve situations where there is ample money in the Treasury, acquired by taxes or through borrowing, and the President decides to not spend some of it. In this instance there is insufficient money in the Treasury to pay the bills because tax receipts are too low and there is no authority to borrow more.

Treasury General Counsel Nixes Constitutional Challenge To Debt Limit

2011-07-10T07:59:00.001-06:00

The General Counsel of the Treasury Department took the 14th Amendment off the table when he sent a letter to the NYT saying that the debt limit law is binding. Here is the text:

The New York Times
620 Eighth Avenue
New York, NY 10018

To the Editor:

Contrary to Professor Laurence Tribe’s assertion (Op-Ed, July 8), Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit. As Professor Tribe notes, the Constitution explicitly places the borrowing authority with Congress, not the President.

The Secretary has cited the 14th Amendment’s command that “[t]he validity of the public debt of the United States… shall not be questioned” in support of his strong conviction that Congress has an obligation to ensure we are able to honor the obligations of the United States. Like every previous Secretary of the Treasury who has confronted the question, Secretary Geithner has always viewed the debt limit as a binding legal constraint that can only be raised by Congress.

Sincerely,

George W. Madison
General Counsel

Posted in: Debt Limit

He doesn't clarify why it is a binding restraint. It could be that he doesn't think the debt limit is inconsistent with the 14th Amendment. Or, as was suggested in this article, it could be his opinion that the President cannot violate a law based on a non-court sanctioned determination that the law is Unconstitutional.

I happen to think that the second argument is the more likely, but certainly don't know. I reached that opinion because since 1803 the Supreme Court has made clear that the Courts alone have the power to declare laws Unconstitutional. While the President could order Treasury to issue new debt in violation of the debt limit and fight it out later in Court, I don't think he wants to risk the firestorm that would arise. He would get attacked by Democrats as well as Republicans for such an act and I suspect he feels that he has enough other issues on his plate.

Can The President Ignore The Debt Limit If He Thinks It is Unconstitutional

2011-07-01T15:53:00.011-06:00

The real question in the debate on the Constitutionality of the debt limit is not whether it is Constitutional but whether the President can ignore the law based on his unilateral determination regarding its Constitutionality. If he took such an action it would be a truly profound assertion of Presidential power. As much as this could be viewed as a righteous assertion of Presidential authority in the face of an irresponsible Republican cabal in Congress, once asserted, this power will continue to be available. It will be used again.

Before getting to that issue, here's a brief discussion of the debate regarding the debt limit.

There is a law that limits the amount of money the United States can borrow, the total amount it can owe at any one time. It reads

31 USC 3101(b) The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $14,294,000,000,000, outstanding at one time, . . . .

The Treasury reached that $14B limit in May. Here is a comprehensive Congressional Research Service Report report explaining the history and operations of the debt limit. Since May, Treasury has used some "extraordinary" powers, such as canceling Civil Service Retirement Fund obligations, to keep paying the bills.

But on August 2, 2011, Treasury will reach the limits of its authority. Beginning then and each month thereafter we will have two dollars of income for every three dollars of bills that must be paid. Choices will then be made between honoring obligations to bondholders, honoring contracts to vendors and suppliers, honoring statutory obligations to social security recipients, soldiers and other Federal employees, complying with statutory Medicare obligations to doctors and hospitals, and other obligations to states and municipalities, just to name a few.

Since the Republicans are quickly converting the possibility of defaulting on these financial, contractual and statutory obligations from an academic question into a real potential nightmare people have wondered whether that debt limit law is even Constitutional. After all,

Section four of the 14th Amendment reads,

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The debate on the 14th Amendment is examined in an article by Jack Balkin in which he concludes,

What do we learn from this history? If Wade's speech offers the central rationale for Section Four, the goal was to remove threats of default on federal debts from partisan struggle. Reconstruction Republicans feared that Democrats, once admitted to Congress would use their majorities to default on obligations they did disliked politically. More generally, as Wade explained, "every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress."

It is not he purpose of this article to debate whether the debt limit violates the 14th Amendment. It is sufficient to say that reasonable legal arguments can be made to support that position. The language is broad, covering not just debt instrument but other obligations , including statutory obligations to pensioners. The language goes to all debts, not just civil war debts. And the purpose was to keep subsequent Congresses from reneging on the obligations incurred by prior Congresses. The broad reach of the language is discussed in the Supreme Court decision, Perry v United States. In any event, there is a sound basis for the President to assert that the debt limit is Unconstitutional.

In fact some in Congress have suggested he may do just that. Today Senator Schumer suggested that the President could ignore the debt limit law, but cautioned that it was premature to take such action and that it was not without risks.

Risks? You bet. And any such action would be a truly profound assertion of Presidential power. Let's be clear. We are talking about the President having the power to unilaterally decide whether he will comply with laws that are duly enacted by Congress and signed by the President.

This is not the same as the President's decision to not defend the Constitutionality of DOMA, the Defense of Marriage Act. In the case of DOMA, the Constitutionality of the law had been challenged in court. The President decided that the law was no longer Constitutionally defensible and argued that position in court. However, he also announced that he would continue to enforce DOMA until the courts struck it down.

This is not like the President's decision regarding Libya and the War Powers Act. While all Presidents have questioned the Constitutionality of the War Powers Act, all have generally complied with it. In the case of Libya, the President is arguing that he has consulted with Congress and in any event the Act doesn't apply because we aren't involved in hostilities. Whether one agrees or disagrees with the President's position he is clearly not taking the position that he even though the Act applies he is violating it based on his determination of its Constitutionality.

In the case of the debt limit the President would be ignoring and violating a law that clearly applied to his actions. He would be doing so even though the law has not been challenged let alone held to be Unconstitutional by a court.

Most legal scholars believe that the President has a duty to enforce the law regardless of what he thinks about it. This obligation arises from the Article II obligation of the president to faithfully execute the laws. The obligation to faithfully execute those laws is also in the Presidential oath,

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

By that oath he President swore to faithfully execute the Office of President. Foremost among the duties of the office are to "take care that the laws be faithfully executed." The debt limit law, 31 UC 3101 is one of those laws.

All laws that are duly enacted a presumptively Constitutional. This is a basic tenet of our legal system that was recently referred to in the 6th Circuit Decision upholding the Affordable Care Act

The minimum coverage provision, like all congressional enactments, is entitled to a “presumption of constitutionality,” and will be invalidated only upon a “plain showing that Congress has exceeded its constitutional bounds.” . . . The presumption that the minimum coverage provision is valid is “not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power . . .(citations omitted).

No Court has held that the President has the power to issue a binding ruling that any law, such as the debt limit, is Unconstitutional. Rather the courts have held that such power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, the debt limit is the law of the land. If a President is presented with a law that he thinks is Unconstitutional he should not sign it. The same applies to every Member of Congress who votes on a law. But once passed and signed, it is the law.

There are some legal scholars who disagree, arguing that the President has no more obligation to enforce laws he thinks are Unconstitutional than to enforce the laws of another country. The scholars who hold that view embrace the concept of an imperial Presidency. Thankfully, that is a minority view.

The issue is simple and straightforward: "who decides if a law is Constitutional." If the President does, then there are only two branches of government and the Presidency can override the legislature at its will. If both the Court and the President decide, you have uncertainty and chaos because there is no ability to reconcile conflicting positions. It the decision rests with the Court, you have certainty, order, and a true separation of powers. Thankfully, most Presidents have respected this third view and the circumstances where laws have been ignored are rare. And I think President Obama will also respect this position. He takes the long view and opening this pandora's box would be fraught with risk for our country. He won't go there.

There Is A Little Justice

2011-06-26T10:56:00.001-06:00

Tea Party candidate for Senate Joe Miller has been ordered by an Alaska Court to cough up part of the State's expenses in rejecting Miller's spurious challenge to last year's election results.

Remember Miller? He was the Sarah Palin and Tea Party (AKA Right Wing Of The Republican Party) darling who beat Lisa Murkowski in the Republican primary for Senate. She turned around and ran an improbable write in campaign that trounced Miller by 4.5 percentage points. Rather than accept the clear rejection by the voters, which was historic for a write in candidate, Miller sued to overturn the results. First he got a Federal Court to temporarily block certification of the election results, and then the case was kicked to the State courts. His argument that elections officials had improperly counted write-in ballots was rejected by a Superior Court judge and that ruling that was upheld at the Alasaka Supreme Court. Miller tried once again to get the Federal court to intervene but the judge told him to go fish.

All of this litigation cost the State of Alaska a ton of money and that gave rise to this suit. Alaska sued Miller to have him reimburse the state for part of its costs in defending against Millers legal challenges to the election. The State Court agreed with Alaska and ordered Miller to pay $17,500.

But here is the really rich part. The whole question in this suit was whether Miller had challenged the election results for his own personal benefit or whether he was trying to vindicate some public interest.The court held that clearly he was only acting for his personal benefit. As reported by Reuters the Court held

that Miller did not qualify as a public interest litigant because his lawsuit sought to secure something of value for himself: A Senate seat with a $174,000-a-year salary and other personal benefits.

"The main thrust of this action was not, in this court's view, to altruistically promote and preserve constitutional protections, but to win an election, with the political and pecuniary benefits that would accrue thereby, . . ."

Talk about stating the obvious.

But, of course, that's not how Miller sees it. For him, it wasn't about trying to get a Senate seat, or the salary or none of that. No. He was on a glorious Mission on behalf of the Baggers to save the country. Or, in Miller's words,

"The Tea Party revolution is not about salary, position, or prestige: it's about bringing America back to its constitutional foundations, where the rule of the law rather than the ruling class prevails," Miller said in the statement.

It's hard to know whether to laugh or cry when reading this self serving drivel.

Can't wait to see if Miller decides to continue his holy crusade by appealing this decision.

When Quoting the Constitution, Quote The Constitution

2011-05-25T09:20:00.002-06:00

There are a host of Republican candidates and officials speaking about the Constitution. Most of them demonstrate absolutely no understanding of its text or how it has been interpreted by the courts. But once in a while, one of them raises the ignorance quotient to a new level

Such was the Case with Herman Cain who admonished his audience recently

We don’t need to rewrite the Constitution of the United States of America, we need to reread the Constitution and enforce the Constitution

Understanding that his audience was not comprised of Constitutional scholars of his calibre, he went on to quote what he thought was the critical part of the Constitution,

And I know that there are some people that are not going to do that, so for the benefit of those that are not going to read it because they don’t want us to go by the Constitution, there’s a little section in there that talks about life, liberty and the pursuit of happiness.”

And the Mr. Cain quoted the Constitutional coup de grace

"Because that’s when it says when any form of government becomes destructive of those ideals, it is the right of the people to alter or abolish it

Unfortunately, those words are not in the Constitution. They are in the Declaration of Independence. So apparently Mr. Cain's Constitutional studies stopped at the year 1776, when we were declaring our right to separate from Britain.

He hasn't yet learned that in 1781 we set up a country under the Articles of Confederation, a Government where the Federal government was very weak and most powers resided in the states. It was the kind of weak government that he, the baggers and the rest of the Republicans love.

He also doesn't appear to know that within a few short years there was a widespread view that Governmental structure of the Articles was unworkable. That concern led to a Constitutional Convention, and in 1787 a new Constitution was adopted, the one we have today. And this Constitution established powers in the Federal Government that were sufficient strong that it would be able to "establish Justice, insure Domestic Tranquility, provide for the Common Defense, promote the General Welfare, and secure the Blessings of Liberty to ourselves and our posterity."

I really should not pick on Cain. He is not alone among the Republican candidates and many Republican office holders. They live in a fact free cartoon world of people who dress up in 18th Century costumes. Their statements do not demonstrate a level of knowledge about our government or our history that would be sufficient to pass an Eighth Grade civics or history class. And all the while they lecture each other and us on the fine points of our Constitution.

"Netanyahu has no plan; he is leading us to a conflict with the world"

2011-05-25T09:18:00.000-06:00

One thing you won't read in the US press very often and you definitely will not hear from members of Congress is the type of discussion of Benjamin Netanyahu and Israeli policies that you hear every day in Israel. So while Congress was treating Netanyahu like a rock star cross between George Washington, Abe Lincoln and Elvis Presley, this is what members of the Israeli Knesset were saying about his speech, as reported by the Jerusalem Post.

From the Kadima Party, that opposes Netanyahu's Likud, MK Shaul Mofaz said

Netanyahu didn't say anything new. . . He has no plan; he is leading us to a conflict with the world in September and if the people of Israel have a choice between conflict and elections, I'm confident that they will choose elections.

Another Kadima Member of the Knesset explained the raw political context of the speech,

"Netanyahu's speech to Congress was an election commercial ... an attempt by Netanyahu to present a false impression that he is willing to enter negotiations," Hasson said. "The people of Israel should not be enticed and should understand that Netanyahu's policies will lead not only to international isolation, but also to a binational state."

And on the much discussed 1967 borders,

MK Zehava Gal-On of Meretz did not mince words in her reaction. Calling the Prime Minister "dangerous" and "extremist," she said, "They cheer in Congress while in the Middle East the catastophe goes on."

Gal-On condemned Netanyahu's stance that Israel would never return to 1967 borders. "Even Netanyahu knows that there is no such thing as peace that is not based on '67 borders and dividing Jerusalem. [His views] reject peace and will lead Israel to international isolation."

Of course, Netanyahu did have his supporters among his own party such as Gidon Sa'ar, who said

There's no statesmen in Israel or the world who could present the case for Israel as strongly as Netanyahu could . . . [Netanyahu] expressed willingness for concessions with a real Palestinian partner but the Palestinian response to his speech indicates that there isn't one."

Then, there was the extreme right wing of Israeli politics represented by National Union MK Aryeh Eldad who said

Netanyahu received the greatest applause when he said that Israel is the land of our forefathers and that Jerusalem will not be divided. So there was no need for him to declare that he is willing to give up large portions of our homeland to the Arabs. Saying that he is willing to abandon settlements will only encourage the Arabs to ask for more and we are liable to pay for this in blood.

These are but examples of the differences of opinion and sometimes scathing denunciations of Israeli policies that come from Israeli politicians but are somehow off limits in the US Congress.

And on the dispute between Obama and Netanyahu the newspaper Haaretz didn't pull any punches when it said that Obama was on the side of Israel and Netanyahu was not,

Obama stressed that only a peace agreement with the Palestinians based on the 1967 lines can ensure that Israel will continue to be a Jewish and democratic state and prevent unilateral recognition of a Palestinian state by the UN General Assembly. Yesterday, the European Union's foreign policy chief, Catherine Ashton, backed Obama, as did the other members of the Quartet.

The refusal by Netanyahu and his political allies to recognize the 1967 borders as a starting point leads permanent-status negotiations into a dead end. From there, the road is short to violent confrontation with the Palestinians, diplomatic isolation and perhaps even economic sanctions.

Imagine that.

Nine Of The Ten Highest Paying Jobs Are Doctors

2011-05-22T10:03:00.001-06:00

Nine of the ten highest compensated jobs in America are in the healthcare field. Yes, nine out of ten. And those compensation levels are far above the levels paid in other countries.

The Bureau of Labor Statistics just issued the 2010 OCCUPATIONAL EMPLOYMENT AND WAGES Report which lists all the jobs in America, how many people work in them and their median and mean annual and hourly wages. Here are the top ten

Surgeons - $225,390
Anesthesiologists - $220,100
Oral Surgeons - $214,120
OB-GYN - $210,340
Orthodontists - $200,292
Internists - $189,480
Other Physicians - $180,870
General Practitioners - $173,850
Chief Executive Officers - $173,350
Psychiatrists - $167,610

Now these are national median wages. Some will be lower and some much higher. But they clearly demonstrate how high the compensation of doctors is when compared with the rest of the jobs in the country. By way of comparison, the median wage for lawyers was $129,440, for airline pilots was $115,300, Engineering Professors was $$96,480 and for all occupations in 2010 was $44,410.

So how do U.S. doctors compare to their counterparts in the rest of the world. The New York Times published an article providing those comparisons and doing it in a most useful way. Rather than just doing dollar comparisons, they adjusted wages for their relative purchasing power in each country,which appears in this graph. For General Practitioners, the US figure was $161,000, the highest other country was Great Britain with $118,000 and the median wage was $80,000. For Specialists, the U.S. was not first at $230,000. The honors went to the Netherlands at $$253,000 and Australia at $247,000. But the US was far above the median of $83,000.

Remember, these are not straight dollar comparisons. They are adjusted for purchasing-power parity — that is, adjusting the numbers so that $1,000 of salary buys the same amount of goods and services in every country. This provides a general sense of a physician’s standard of living in each nation.

No one would suggest that doctor salaries are the only contributor to the high cost of health care in this country compared with other countries. But it certainly is one of the factors. And I certainly hope than any doctor inclined to whine about how much he earns should take a moment to consider how well of he is compared with the average worker, including other professional workers, in the US and to his counterparts in other countries.

April 18, 1943 - May 1, 2011

2011-05-09T11:24:00.002-06:00

An elaborate plan is hatched. Using the most sophisticated technical resources available the United States pinpoints the location of one of its most hated enemies. Employing the most sophisticated military resources available that person is targeted and killed. At the time of his death he was unarmed and not aware of the attack until it was too late. His death caused great rejoicing in the United States and was a severe psychological blow to the enemy.

While this may sound an awful lot like the May 1, 2011 killing of Osama bin Laden, it is also a description of the April 18, 1943 death of Admiral Isoroku Yamamoto. No analogies are perfect. There are always differences. But in all significant respects, the killing of Admiral Yamamoto is mirrored by the killing of Osama bin Laden.

Before discussing those similarities and differences, this is a brief rundown of Adm. Yamamoto and the operation titled “Vengeance,” that resulted in his death.

Admiral Isoroku Yamamoto was the commander of the Japanese Navy. He was responsible for planning and executing the attack on Pearl Harbor, which brought the United States to war against Japan. He also planned and executed the all of the Japanese naval engagements between United States and Japan until his death. He was highly respected as a military tactician but he was a truly hated man in United States for both bringing about the war and for the death and destruction caused as a result of the war.

In April, 1943 United States Naval intelligence intercepted messages that gave detailed accounts of his upcoming travel plans in the South Pacific.

Yamamoto, the itinerary revealed, would be flying from Rabaul to Ballale Airfield, on an island near Bougainville in the Solomon Islands, on April 18. He and his staff would be flying in two medium bombers (Mitsubishi G4M Betties of the 205th Kokutai Naval Air Unit), escorted by six navy fighters (Mitsubishi A6M Zero fighters of the 204th Kokutai NAU), to depart Rabaul at 06:00 and arrive at Ballale at 08:00, Tokyo time.

With that information in hand, President Roosevelt was approached about a plan to kill Yamamoto. President Franklin D. Roosevelt ordered Secretary of the Navy Frank Knox to "get Yamamoto."

With the go-ahead of President Roosevelt, a plan was developed that was highly secret and totally audacious. While there was no certainty that they would actually be able to target Yamamoto's plane but they had a high degree of confidence in their chances.

To avoid detection by radar and Japanese personnel stationed in the Solomon Islands along a straight-line distance of about 400 miles (640 km) between US forces and Bougainville, the mission entailed an over-water flight south and west of the Solomons. This roundabout approach flight was plotted and measured to be about 600 miles (970 km). The fighters would therefore travel 600 miles out to the target and 400 miles back. The 1,000-mile flight plan, with extra fuel allotted for combat, was beyond the range of the F4F Wildcat and F4U Corsair fighters then available to Navy and Marine squadrons based on Guadalcanal. The mission was instead given to the US Army's 339th Fighter Squadron of the 347th Fighter Group, Thirteenth Air Force, whose P-38G aircraft, equipped with drop tanks, would have the range to intercept and engage.

As with the attack on Bin Laden sixty-eight years later, the mission was not flawless.

Two of the P-38 Lightnings assigned to the killer flight dropped out of the mission at the start, one with a tire flattened during takeoff and the second when its drop tanks would not feed fuel to the engines.

Yamamoto was flying in one of two medium bombers, known as Betties. They were escorted by six fighters. The Americans did not know which Betty Yamamoto would be flying in and also didn't know that the other was carrying Chief of Staff Vice Admiral Matome Ugaki and part of Yamamoto's staff. On May 18 both of the Betty bombers were shot down and crashed on the island of Bougainville. Yamamoto was dead. His body was recovered by the Japanese and eventually shipped back to Japan. But the fact of his death was so devastating that the Japanese government did not disclose the information for over a month.

So how does the killing of Yamamoto compare with the killing of Osama Bin laden. Both involve the death of military leader of an enemy against whom we were at war. Japan declared war on us on December 7, 1941, and we reciprocated on December 8th. In 1996 Osama Bin Laden's Al Qaeda declared war on the United States in a Fatwa entitled "Declaration of War against the Americans Occupying the Land of the Two Holy Places."

When it first issued there was concern about the Al Qaeda declaration but no one knew with certainty what it meant. We found out on August 7, 1998, with the bombings of the US embassies in Dar Es Salaam, Tanzania and Nairobi, Kenya. Those attacks were followed with the October 12, 2000 attack on the USS Cole in Aden, Yemen. Then, eleven months later, New York, Washington DC, and Shanksville PA were attacked on 9/11. That caused the US to issue the Authorization for Use of Military Force Against Terrorists on September 18, 2001, which granted the President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups. There are reasons why the AUMF was used rather than a "Declaration of War" but in all respects relevant to engaging the enemy, it gave the President the same authority as a war declaration.

While Adm. Yamamoto and his forces wore uniforms and identified themselves as our enemy, Bin Laden and his forces did not. Rather they use secret, disguise, and stealth, to confuse us as to their identities and their intentions.

In the case of Yamamoto we attacked him over foreign soil. Bougainville had been placed under the jurisdiction of Australia after WWI and Australia was our ally in WWII. In the case of Osama Bin Laden, he was attacked while illegally residing in a country which was our nominal ally.

In the case of Yamamoto no advance warning was given of the attack just as with the attack on Osama Bin Laden. At the time of both attacks neither man was armed. At the time of both attacks, neither man was given the opportunity to surrender. Certainly the United States could have attempted to force the plane carrying Yamamoto to land but it did not. If it had landed somewhere and he was taken prisoner that would've been fine but that was not the primary goal. The same was true with Osama bin Laden.

In both cases these actions are governed by the Laws of Armed Conflict, also known as the Rules of War, which have three basic elements, military necessity, distinction and proportionality. In both cases, "military necessity" is clear. Both men were military leaders of the enemy. " Distinction" speaks to the need to minimize affects on non-combatants. No non-combatants were killed in 1943. We can't be sure about 2011 because at this point we don't have details on what roles, if any, the three other persons who were killed had played in instigating or facilitating attacks on us. "Proportionality" relates to only using a level of force necessary to achieve the objective. In the case of Yamamoto there was significant but reasonable collateral damage to planes that were shot down together with all of their occupants. In the case of Osama Bin Laden, the choice of bombing it from the air was specifically not chosen, in part because of the other damage it could cause.

It is possible that some Americans in 1943 were outraged over the killing of Yamamoto. A few may have thought he should have been captured and not killed. Or maybe they thought the attack should not have occurred under any circumstances. Yes, there may have been a few. Similarly there are a few who may have the same sentiments about the killing of Bin Laden today. Thankfully, most do not. There is no legal or logical reason the leader of an enemy who declared war on you cannot be killed wherever and whenever you find him. The country he is hiding in may be embarrassed and complain about its sovereignty being violated, but those are separate issues. They are not comfort to the enemies who have declared war on us.

Today, as in 1943, we don't need to revel in the event. But we can still be very happy about the prospect that it will hasten the end to this war and bring our troops safely home.

Yorktown, Appomattox, Armistice Day, VE Day, VJ Day, Abbatobad

2011-05-06T22:17:00.002-06:00

Yorktown, Appomattox, Armistice Day, VE Day, VJ Day, are all days that my forefathers, and mothers, celebrated. They signaled the end of wars or significant events leading to the end of wars. The death of Osama Bin Laden in Abbatobad is also such a day. It marks the closest thing we will experience to the defeat of Bin Laden's Al Qaeda. I celebrate that day with full voice.

Al Qaeda's military and political leader, Osama Bin declared war on the United States in a 1996 Fatwa entitled "Declaration of War against the Americans Occupying the Land of the Two Holy Places." From that day until May 1, 2011 he lead his organization on a fifteen year war that killed thousands of Americans, caused billions of dollars of losses and terrorized may Americans. His war was also against other peoples, in fact anyone who disagreed with him, and he caused immense death, destruction and suffering worldwide.

When the 1996 fatwa was first issued there was concern but no one knew with certainty what it meant. We found out on August 7, 1998 with the bombings of the US embassies in Dar Es Salaam, Tanzania and Nairobi, Kenya. Those attacks were followed with the October 12, 2000 attack on the USS Cole in Aden, Yemen. Then, eleven months later, New York, Washington DC, and Shanksville PA were attacked on 9/11.

Before the 9/11 attacks it was difficult to attack Bin Laden because he was being sheltered by the Taliban government in Afghanistan and the Pakistanis would not allow us to launch attacks from their soil. Our retaliatory options were limited and we were only able to attack Bin Laden's Al Qaeda from a distance, as with the cruise missile attack in 1998. Things changed after 9/11 because of the horrific nature of the attacks and their effect on most of the world community. We were finally able to attack Bin Laden's organization directly because the countries surrounding Afghanistan realized they could no longer assist the Taliban rulers of Afghanistan in giving him safe haven.

With the overthrow of the Taliban Bin Laden and his organization were on the run. They were wounded but still active. They were able to mount subsequent attacks in Madrid and London but were substantially weakened. However as long as Bin Laden, their military and political leader, their principle spokesman, their chief fundraiser, and their inspirational figure, was alive Al Qaeda would continue its war against the US. We could destroy as many safe houses as we could locate. We could kill as many of his soldiers as we could find. But as long as he was leading Al Qaeda it would always be there.

When this war started many people asked, "How will we know its over? There will be no final large scale battle. There will be no peace treaty." That is all true. The closest thing to an end point for this war, the closest thing to a moment of victory, was always going to be the death of Bin Laden.

Certainly there may well be some minor terrorist incidences that occur in the future. A few diehard Al Qaeda enthusiasts may try to reprise their old glory. But there is no infrastructure and above all there is no leadership for this pathetic group. The United States and the entire World are more secure than they were before May 1, 2011.

Like my father and mother who celebrated VJ Day, my father as a Marine in the Pacific and my mother as a Marine in Washington DC, I celebrated May 1, 2011, Abbatobod Day, the end of the leader of Al Qaeda. In doing so I was but echoing celebrations by long past relatives who fought in the Revolution, Civil War and World War I, who celebrated the end of those conflicts. We don't like war but we celebrate its end.

I should add that unlike the war against Bin Laden's Al Qaeda there was nothing about the Iraq war that was worthy of celebration. It was not only a fabricated war and illegal war, it was a dumb war that cause death and destruction to no good end. Such wars bring shame, and are never cause for celebration.

I Am Cheering For Two Reasons.

2011-05-02T10:58:00.001-06:00

I am cheering, for two reasons.

Osama bin Laden was an evil man. A man who sought political objectives only through violence and death. The killing of such a man it is always reason for celebration. It is for the Lord to judge his fate in the hereafter, but I cheer his departure from our presence. He can do no more harm here on Earth.

But there is a second, more important reason to cheer. Contrary to what some say, Bin Laden's death marks the end of Al Qaeda. Bin Laden was Al Qaeda. He founded it, funded it, inspired it, and was its voice. The two were one. Al Qaeda was a snake that began to whither after it lost its sanctuary under a Taliban ruled Afghanistan. But until May 1, 2011, it was still alive. But it is no more. The head of the snake has been cut off. It may slither and squirm for a little longer but will soon disappear. I cheer that with full voice.

The tragedy of 9/11 was horrific with death, injury and destruction and lives altered forever. Bin Laden showed that he could harm us, causing death and damage, and heartache and tears for the memories of those who were its victims. But as horrific as 9/11 was Bin Laden's main objective was sowing fear, and on that score he was even more effective. He caused us to change the way we live, foregoing freedoms in the mistaken sense we were gaining security.

However, the main enemy of bin Laden was never the United States, it was always what he viewed as corrupt regimes throughout the Muslim world. The United States became a target for him after the Gulf War, following which we stationed troops in Saudi Arabia. And it was convenient for him to launch war against the United States because it helped generate support among those Arabs and other Muslims who were generally mistrusting of the West.

After 9/11 however, his power waned. But the fact that the United States could not kill or capture him always added an air of mystique to his cause. His physical base of support in Afghanistan was taken from him and his monetary resources were squeezed. Yet al Qaeda could limp on after that, albeit with decreasing efficiency, as long as Bin Laden was still alive.

His marginalization accelerated with the dawn of the Arab Spring. People throughout North Africa are rebelling against oppressive regimes and doing so without any involvement from Al Qaeda. The actions in Tunisia, Egypt, Libya, and Syria have demonstrated to the people of those countries that there is a future for them. They can overturn the dictatorial regimes that have been oppressing them and they can do this on their own, guided by principles of democracy and freedom of expression. Democracy and individual rights were anathema to Al Qaeda and its dead leader, Bin Laden, and those rebellions reflected a rejection of Bin Laden’s vision of radical Muslim theocracy. Now, the death of bin Laden has put in place the keystone, the final event, in the rejection of his and Al Qaeda's goals.

Certainly there may well be some minor terrorist incidences that occur in the future. A few diehard Al Qaeda enthusiasts may try to reprise their old glory. But there is no infrastructure and above all there is no leadership for this pathetic group. The United States and the entire World are more secure than they were before May 1, 2011. And I cheer that. I cheer that with full voice.

Republicans Are Betting That Granny Hates Her Grandchildren

2011-04-17T16:27:00.002-06:00

House Republicans adopted, almost unanimously, the Ryan plan to end Medicare. Of course they know that Medicare is popular and among seniors is far more popular than private insurance is for other people. So they wouldn't dare take it away from those currently receiving Medicare.

Their solution is to only take it away from people not currently eligible, those below fifty-five years old. From a political standpoint they think they will keep seniors on their side, assuring all those seniors who vote that their Medicare is safe. This cynical plan could work but only if those seniors hate their children and grandchildren. If not hate, Republican hope that seniors at least dislike their offspring enough that they want them to be denied the same medical security they enjoy, an assurance from the government that their medical future is safe.

It is possible that some of the parents and grandparents of these Republican Representatives feel that way about their issue, but I don't think that most grandparents feel that way. Having experienced first hand the effects of aging and the anxiety of paying for their medical care before becoming eligible for Medicare, it is reasonable to assume that most of these seniors will not wish upon their children and grandchildren a fate that is worse than what they experienced

First, the plan. The Republican plan ends the guaranteed Medicare benefit, substituting a plan to give seniors a voucher/coupon to pay part of the cost of buying private insurance, assuming a plan is available. In addition, the plan tells people that whenMedicare ends, they can't get these vouchers when they are sixty-five, but have to wait till they are sixty-seven.

The voucher plan is unacceptable for four main reasons. First, in all likelihood it will be unworkable. Finding insurance companies to guarantee the elderly will be difficult if not impossible. Second, if any insurers participate the premiums they will charge will be far higher than the value of the vouchers. Third, the plan enriches insurance companies at the expense of seniors. Lastly and most importantly, as each year passes the burden of paying for care is increasingly shifted onto seniors.

The Ryan plan doesn't save dollars, it doesn't reduce the cost of medical care, it merely shifts those from the government to seniors. This shift is dramatic. In a study by Center For Economic And Policy Research, using Congressional Budget Office Data, under the Ryan plan seniors will pay 35% of their income for medical care in 2022 and that percentage will increase to 68% by 2050.

This happens because the value of the vouchers only increase with the inflation rate. Health care costs have been rising far above that rate and there is nothing in Ryan's plan to control costs. This is where Ryan saves the government billions, by transferring to seniors the ever increasing difference between the value of the voucher and the ballooning insurance premiums.

And these are just median figures, They ignore the reality of the millions of seniors who will fall above those median levels. Many of those people who will have been left to the mercy of the private insurance market will be financially ruined. And when they have no money, they will be forced onto Medicaid. But Ryan proposes to gut that program too, by shifting costs to already cash strapped states.

All of that is bad enough. But the Republicans weren't satisfied. Ryan decided to save even more money to fund Billionaire tax cuts by telling people who are currently fifty-five that they are not only ineligible for Medicare, they can't even get vouchers when they reach sixty-five. No. They have to wait longer and if they were born in 1966 they'll have to wait a full two years longer.

Ryan may have thought that delaying access to his faux Medicare vouchers till sixty-seven would sail through issue since the Social Security retirement age also increases to sixty-seven for younger Americans. But that is the problem with simplistic thinking. He doesn't appear to understand that while it may be hard to find a job and sometimes even to work after sixty-five, it is near impossible to find health insurance at that age and totally impossible to find affordable insurance. That is, of course, unless you are part of the that upper 3% of the income scale.

Even Reagan understood that point and the Medicare eligibility rate was not raised as part of the 1983 Social Security deal. Also, while the 1983 Social Security law gradually raised the retirement age to sixty-seven, it still allows people to draw reduced benefits earlier, even at sixty-two. Such is not the case with the Ryan/Republican plan. Under their plan a person between the ages of sixty-five and sixty-seven gets nothing. No reduced Medicare, no reduced voucher, nothing.

But money is only part of the issue. The other is the anxiety, the lost peace of mind that comes with Medicare today. Medicare was enacted in 1965 because seniors were suffering, not just medically and financially, but also emotionally. They were needing medical care as they aged much more than when they were young and they could not find people to treat them unless they were well off. Insurance was not available. Medicare was a Godsend. For the first time they were guaranteed coverage, access to medical services and it was reasonably affordable. For some of very limited means, even paying the current premiums and co-pays in Medicare is hard, but it's nothing like the crushing burden faced before 1965.

Ryan wants to end all this. No longer will seniors know they have coverage, can get treatment and, that their costs are limited. They will be thrown back to the bad old days. Sure, there may be a policy out there. They can't know if it will be there and can't know what it will cover. But even if it is there, they know today that the policy will be expensive and as time passes they will have to pay more and more out of their pocket to pay for it.

Seniors on Medicare today know these things. They may feel a little better that the Republican plan, as it stands today, will not affect them. Some may wonder whether, once passed, it could easily be changed to start taking back benefits they currently have. But even if not, they will know it will affect their children and grandchildren. The very loved ones who they struggled all their lives for, showering them with love and affection. The very ones they now see struggling to pay their bills, find jobs, and keep their homes. The grandchildren who they love dearly, never passing up an opportunity to brag about and spoil.

Knowing what she knows, is Granny really going to throw her sweet children and grandchildren to wolves? The Republicans are counting on it. I think they will be surprised.

A Truly Sick Part Of Ryan's Plan To End Medicare That You May Not Have Heard About

2011-04-15T07:37:00.003-06:00

The CBO Analysis of the Ryan, soon to be Republican, plan to end Medicare reveals something that's largely flying under the radar. Seniors won't be able to get his crummy vouchers when they are sixty-five they have to wait two more years, until they are sixty-seven. No Medicare, no voucher, no nothing until you are sixty-seven.

Ryan doesn't talk about it and it doesn't appear in the plan published on the Vouchercare website. One has to go to the Congressional Budget Office report to find it. And there you discover that under the Ryan/Republican plan

Starting in 2022, the age of eligibility for Medicare would increase by two months per year until it reached 67 in 2033.

That means that if you were born in 1966 or later you won't be eligible for diddlysquat until you are sixty-seven. No Medicare, no voucher, no nothing.

For those two years, seniors will be totally on their own. That means for those who are employed, if their employer offers insurance they'll be forced to work two more years unless they want to go broke trying to buy insurance in the open market. Alternatively they can go without insurance and pray they don't get sick. Those who are not working will truly be fending for themselves.

Ryan is keeping quiet about this but it is a big element of his savings. For guys like him, this plan is genius. Workers have to pay Medicare taxes for two more years before they can begin to draw any benefit. Sadly, it also means that more people will die before ever receiving Medicare. A boat load of Billionaire tax cuts will be financed with those Medicare taxes and by not having to make pesky payments to doctors for those two years.

Ending Medicare and substituting the voucher program is terrible. It's selfish and mean. But this, this is positively craven.

First, the voucher plan. It is unacceptable for four main reasons. First, in all likelihood it will be unworkable. Finding insurance companies to guarantee the elderly will be difficult if not impossible. Second, if any insurers participate the premiums they will charge will be far higher than the value of the vouchers. Third, the plan enriches insurance companies at the expense of seniors. Lastly and most importantly, as each year passes the burden of paying for care is increasingly shifted onto seniors. This happens because the value of the vouchers only increase with the inflation rate. Health care costs have been rising far above that rate and there is nothing in Ryan's plan to control costs. This is where Ryan saves the government billions, by transferring to seniors the ever increasing difference between the voucher and the insurance premiums.

All of that is bad enough. But the Republicans weren't satisfied. Ryan decided to save even more money to fund Billionaire tax cuts by telling people who are currently fifty-five that they are not only ineligible for Medicare, they can't even get vouchers when they reach sixty-five. No. They have to wait longer and if they were born in 1966 they'll have to wait a full two years longer.

Ryan was surely thinking that this shouldn't be an issue since the Social Security retirement age also increases to sixty-seven for younger Americans. But that is the problem with simplistic thinking. He doesn't appear to understand that while it may be hard to find a job and sometimes even to work after 65, it is near impossible to find health insurance at that age and totally impossible to find affordable insurance. That is, of course, unless you are part of the that upper 3% of the income scale. Even Reagan understood that point and the Medicare eligibility rate was not raised as part of the 1983 Social Security deal.

Also, while the 1983 Social Security law gradually raised the retirement age to 67 it still allows people to draw reduced benefits at 65 or even 62. That law only raised the age for full benefits. Under Ryan's plan a person between 65 and 67 gets nothing, no reduced Medicare, no reduced voucher, nothing.

The phrase "doughnut hole" is already taken. This hole in coverage is a chasm of suffering. We need to beat this like a drum.

Obama Affirms Our Vision Of America And Lays Down Markers

2011-04-13T14:48:00.005-06:00

President Obama delivered a speech on April 13, 2011 that not only laid out is plan for dealing with long term fiscal issues but showed how his proposals reflect the shared vision we have of our nation. The speech was not only great on substance it was fantastic on its message. It also laid out the contrast the between the Democratic vision of a prosperous, compassionate and growing America with the Republican down cast view of a country in decline with a middle class sacrificing to enrich billionaires.

There are many memorable passages. Here are a few of mine. Probably the one that will sting the Republicans the most is this one,

Think about it. In the last decade, the average income of the bottom 90% of all working Americans actually declined. The top 1% saw their income rise by an average of more than a quarter of a million dollars each. And that’s who needs to pay less taxes? They want to give people like me a two hundred thousand dollar tax cut that’s paid for by asking thirty three seniors to each pay six thousand dollars more in health costs? That’s not right, and it’s not going to happen as long as I’m President.

That was but one of many statements on both taxes and health care that drew sharp difference. In talking about the Republican plan to give the wealthy tax cuts financed by taking money away from seniors, he said what needs to be said. The Republicans want to end Medicare as we know it.

It’s a vision that says America can’t afford to keep the promise we’ve made to care for our seniors. It says that ten years from now, if you’re a 65 year old who’s eligible for Medicare, you should have to pay nearly $6,400 more than you would today. It says instead of guaranteed health care, you will get a voucher. And if that voucher isn’t worth enough to buy insurance, tough luck – you’re on your own. Put simply, it ends Medicare as we know it.

No more of this silly "reform Medicare" language that some in the media spout. It ends the Medicare we have known for almost fifty years.

Here are a few more key passages on Medicare and Medicaid. This passage sums up the difference between Democrats and Republicans. Democrats want to control how much health care costs, and make sure seniors get it without increasing their out of pocket expenses. Republicans don't care how costs go up, they just want to shift those costs from the government to seniors.

The third step in our approach is to further reduce health care spending in our budget. Here, the difference with the House Republican plan could not be clearer: their plan lowers the government’s health care bills by asking seniors and poor families to pay them instead. Our approach lowers the government’s health care bills by reducing the cost of health care itself.

His commitment could not be clearer. This is a line in the sand. Republovouchercare and Medicaid block grants are dead.

But let me be absolutely clear: I will preserve these health care programs as a promise we make to each other in this society. I will not allow Medicare to become a voucher program that leaves seniors at the mercy of the insurance industry, with a shrinking benefit to pay for rising costs. I will not tell families with children who have disabilities that they have to fend for themselves. We will reform these programs, but we will not abandon the fundamental commitment this country has kept for generations.

He set up the tax discussion with a reminder of how we got here and a restatement of his commitment to end the cuts for the wealthy.

In December, I agreed to extend the tax cuts for the wealthiest Americans because it was the only way I could prevent a tax hike on middle-class Americans. But we cannot afford $1 trillion worth of tax cuts for every millionaire and billionaire in our society. And I refuse to renew them again.

He also opened up a new avenue for making billionaires pay their fair share. I hope he really presses this one.

Beyond that, the tax code is also loaded up with spending on things like itemized deductions. And while I agree with the goals of many of these deductions, like homeownership or charitable giving, we cannot ignore the fact that they provide millionaires an average tax break of $75,000 while doing nothing for the typical middle-class family that doesn’t itemize.

Here he took a well needed swipe at those who praised Paul Ryan's so-called courage

The fact is, their vision is less about reducing the deficit than it is about changing the basic social compact in America. As Ronald Reagan’s own budget director said, there’s nothing “serious” or “courageous” about this plan. There’s nothing serious about a plan that claims to reduce the deficit by spending a trillion dollars on tax cuts for millionaires and billionaires. There’s nothing courageous about asking for sacrifice from those who can least afford it and don’t have any clout on Capitol Hill. And this is not a vision of the America I know.

These last two paragraphs summarize his vision of America, a vision that on can dare say is shared by the vast majority of the people.

I say that at a time when the tax burden on the wealthy is at its lowest level in half a century, the most fortunate among us can afford to pay a little more. I don’t need another tax cut. Warren Buffett doesn’t need another tax cut. Not if we have to pay for it by making seniors pay more for Medicare. Or by cutting kids from Head Start. Or by taking away college scholarships that I wouldn’t be here without. That some of you wouldn’t be here without. And I believe that most wealthy Americans would agree with me. They want to give back to the country that’s done so much for them. Washington just hasn’t asked them to.

. . . . . . .

Part of this American belief that we are all connected also expresses itself in a conviction that each one of us deserves some basic measure of security. We recognize that no matter how responsibly we live our lives, hard times or bad luck, a crippling illness or a layoff, may strike any one of us. “There but for the grace of God go I,” we say to ourselves, and so we contribute to programs like Medicare and Social Security, which guarantee us health care and a measure of basic income after a lifetime of hard work; unemployment insurance, which protects us against unexpected job loss; and Medicaid, which provides care for millions of seniors in nursing homes, poor children, and those with disabilities. We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.

This was a fantastic statement of the American vision we all thought most of us shared. He has laid it out and made clear not only where he wants to lead us, but also where he will refuse to allow us to be dragged. The battles will be many, but the playing field is clear.

The Supreme Court Further Guts Taxpayer Standing In Arizona Christian School Case

2011-04-04T16:41:00.002-06:00

The Court decided Arizona Christian School v Winn today. Although the case revolves around the legality of a tax credit for contributions to private schools, including religious schools, the Court did not rule on the Constitutionality of the program. Instead, the Court threw the case out on the grounds that the plaintiffs did not have "standing" to sue. That means they didn't have the right to bring the case and therefore the case is dismissed and the program stands.

Some people are confused about this case but the ruling is clear. Here is the holding from the case syllabus

Held: Because respondents challenge a tax credit as opposed to a governmental expenditure, they lack Article III standing under Flast v. Cohen , supra . Pp. 4–19.

This is an important case even though it has nothing to do with education, the Fourteenth amendment, or Brown v Board. It is important because it further guts the ability of Taxpayers to challenge government action. Here's why.

Under Article III of the Constitution, courts can only hear "cases or controversies." To sue someone, you have to show that you have been injured, physically, monetarily, whatever. The Court has generally ruled that if your only asserted injury is as a taxpayer then that is a generalized grievance that doesn't give you standing. Progressives on the Court have favored taxpayer standing because it increases the ability of citizens to challenge government action. The self described "conservatives' do not favor taxpayer standing. Well, the anti-progressives prevailed again.

The Court majority found a way to further narrow the rights of taxpayers to sue by creating a new rule. Under the existing precedent of the case, Flast v Cohen, a suit like this, which challenges the tax credit on the grounds that it violates the First Amendment prohibition against the "establishment of religion, could have been brought if it met these criteria,

(1) a “logical link” between the plaintiff’s taxpayer status “and the type of legislative enactment attacked,” and (2) “a nexus” between such taxpayer status and “the precise nature of the constitutional infringement alleged.”

In this case the Court bypassed that analysis by holding that a tax credit is not the same as an expenditure of funds and therefor no injury can be found. This distinction is truly ridiculous and was clearly fabricated for the sole purpose of making it harder for citizens to hold their government accountable.

Here is the syllabus of the case and the full case is at the link above.

Respondents, Arizona taxpayers, sued petitioner Director of the State Department of Revenue, challenging Ariz. Rev. Stat. Ann. §43–1089 on Establishment Clause grounds. The Arizona law gives tax credits for contributions to school tuition organizations, or STOs, which then use the contributions to provide scholarships to students attending private schools, including religious schools. Petitioner Arizona Christian School Tuition Organization and others later intervened. The District Court dismissed the suit for failure to state a claim. Reversing, the Ninth Circuit held that respondents had standing as taxpayers under Flast v. Cohen , 392 U. S. 83 , and had stated an Establishment Clause claim.

Held: Because respondents challenge a tax credit as opposed to a governmental expenditure, they lack Article III standing under Flast v. Cohen , supra . Pp. 4–19.

(a) Article III vests in the Federal Judiciary the “Power” to resolve “Cases” and “Controversies.” That language limits the Federal Judiciary to the traditional role of Anglo-American courts: redressing injuries resulting from a specific legal dispute. To obtain a ruling on the merits in federal court a plaintiff must assert more than just the “generalized interest of all citizens in constitutional governance.” Schlesinger v. Reservists Comm. to Stop the War , 418 U. S. 208 . Instead the plaintiff must establish standing, which requires “an ‘injury in fact’”; “a causal connection between the injury and the conduct complained of”; and a conclusion that it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Lujan v. Defenders of Wildlife , 504 U. S. 555 . Pp. 4–6.

(b) In general, the mere fact that someone is a taxpayer does not provide standing to seek relief in federal court. The typical assertion of taxpayer standing rests on unjustifiable economic and political speculation. See Frothingham v. Mellon , 262 U. S. 447 ; Doremus v. Board of Ed. of Hawthorne , 342 U. S. 429 . When a government expends resources or declines to impose a tax, its budget does not necessarily suffer. Even assuming the State’s coffers are depleted, finding injury would require a court to speculate “that elected officials will increase a taxpayer-plaintiff’s tax bill to make up a deficit.” DaimlerChrysler Corp. v. Cuno , 547 U. S. 332 . And to find redressability a court must assume that, were the taxpayers’ remedy allowed, “legislators [would] pass along the supposed increased revenue in the form of tax reductions.” Ibid . These conclusions apply to the present cases. The costs of education may be a significant portion of Arizona’s annual budget, but the tax credit, by facilitating the operation of both religious and secular private schools, could relieve the burden on public schools and provide cost savings to the State. Even if the tax credit had an adverse effect on Arizona’s budget, causation and redressability problems would remain. To find a particular injury in fact would require speculation that Arizona lawmakers react to revenue shortfalls by increasing respondents’ tax liability. A causation finding would depend on the additional assumption that any tax increase would be traceable to the STO tax credit. And respondents have not established that an injunction against the credit’s application would prompt Arizona legislators to “pass along [any] increased revenue [as] tax reductions.” Ibid. Pp. 6–10.

(c) Respondents’ suit does not fall within the narrow exception to the rule against taxpayer standing established in Flast v. Cohen , supra. There, federal taxpayers had standing to mount an Establishment Clause challenge to a federal statute providing General Treasury funds to support, inter alia , textbook purchases for religious schools. To have standing under Flast, taxpayers must show (1) a “logical link” between the plaintiff’s taxpayer status “and the type of legislative enactment attacked,” and (2) “a nexus” between such taxpayer status and “the precise nature of the constitutional infringement alleged.” 392 U. S., at 102. Considering the two requirements together, Flast explained that individuals suffer a particular injury when, in violation of the Establishment Clause and by means of “the taxing and spending power,” their property is transferred through the Government’s Treasury to a sectarian entity. Id., at 105–106. “The taxpayer’s allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power.” Id ., at 106. The STO tax credit does not visit the injury identified in Flast . When the Government spends funds from the General Treasury, dissenting taxpayers know that they have been made to contribute to an establishment in violation of conscience. In contrast, a tax credit allows dissenting taxpayers to use their own funds in accordance with their own consciences. Here, the STO tax credit does not “extrac[t] and spen[d]” a conscientious dissenter’s funds in service of an establishment, 392 U. S ., at 106, or “ ‘force a citizen to contribute’ ” to a sectarian organization, id. , at 103. Rather, taxpayers are free to pay their own tax bills without contributing to an STO, to contribute to a religious or secular STO of their choice, or to contribute to other charitable organizations. Because the STO tax credit is not tantamount to a religious tax, respondents have not alleged an injury for standing purposes. Furthermore, respondents cannot satisfy the requirements of causation and redressability. When the government collects and spends taxpayer money, governmental choices are responsible for the transfer of wealth; the resulting subsidy of religious activity is, under Flast , traceable to the government’s expenditures; and an injunction against those expenditures would address taxpayer-plaintiffs’ objections of conscience. Here, by contrast, contributions result from the decisions of private taxpayers regarding their own funds. Private citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs. Any injury the objectors may suffer are not fairly traceable to the government. And, while an injunction most likely would reduce contributions to STOs, that remedy would not affect noncontributing taxpayers or their tax payments. Pp. 10–16.

(d) Respondents’ contrary position—that Arizonans benefiting from the tax credit in effect are paying their state income tax to STOs—assumes that all income is government property, even if it has not come into the tax collector’s hands. That premise finds no basis in standing jurisprudence. This Court has sometimes reached the merits in Establishment Clause cases involving tax benefits as opposed to governmental expenditures. See Mueller v. Allen , 463 U. S. 388 ; Nyquist v. Mauclet , 432 U. S. 1 ; Hunt v. McNair , 413 U. S. 734 ; Walz v. Tax Comm’n of City of New York , 397 U. S. 664 . But those cases did not mention standing and so do not stand for the proposition that no jurisdictional defects existed. Moreover, it is far from clear that any nonbinding sub silentio standing determinations in those cases depended on Flast , as there are other ways of establishing standing in Establishment Clause cases involving tax benefits. Pp. 16–18.

562 F. 3d 1002, reversed.

Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.

Notes

1 Together with No. 09–991, Garriott, Director, Arizona Department of Revenue v. Winn et al., also on certiorari to the same court.

Recent Questions Regarding President Obama's DOMA Decision

2011-02-26T08:39:00.002-07:00

In the last few days several questions have arisen in articles dealing with the President's decision not to defend the lawsuits challenging DOMA, the Defense of Marriage act. This is an attempt to answer those questions for those who may not be familiar with the legal nuances involved.

The questions are:

Can the President refuse to defend the Constitutionality of a law;

Why did Obama seem to invite the Congress to intervene in the suit;

How can the President continue to enforce a law he thinks is Unconstitutional;

Exactly what is the Constitutional question in the DOMA cases;

If Obama's not defending the law, why is he staying in the case;

How can he think DOMA is Unconstitutional if he doesn't believe in gay marriage; and

Does this impact gays in the military following DADT repeal?

Can the President refuse to defend the Constitutionality of a law?

It doesn't happen often, but Presidents can refuse to defend laws that are challenged as unconstitutional. Holder's letter to Congress explaining the President's DOMA decision discusses the issue in general terms,

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense . . . . However, the Department . . . does not consider every plausible argument to be a “reasonable” one. . . . Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.

While this is a rare occurrence, the practice of not defending laws goes back for years as outlined in the article.

In 1989 . . . the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court . . . .

Congress even acknowledges that this can occur which is why they enacted a law that requires the President to notify the Congress in the event of such a decision,

The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice . . . determines . . . . to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute . . . .

So people can question whether President Obama should have taken this action, but they cannot question its legality or say it is unprecedented.

Why did Obama seem to invite the Congress to intervene in the suit?

He did it because he obeys the law. The same law that requires the President to report to Congress says he must do so

. . .within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination . . .

All those who would ascribe some nefarious motive to that part of his letter are uninformed. He is scrupulously obeying the law, nothing more, nothing less.

How can the President continue to enforce a law he thinks is Unconstitutional?

This really involves two separate and distinct issues. First, the Constitutionality of DOMA was challenged. As discussed above, the President is generally obligated to defend laws against Constitutional challenge. However, there are circumstances when Presidents can decline to defend cases. He has decided that DOMA is no longer Constitutionally defensible and will now take that position in court.

On the second issue, the question is different. The short answer is that the President has a duty to enforce the law regardless of what he thinks about it. The President swore an oath,

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

The President swore to faithfully execute the Office of President. Foremost among the duties of the office are to "take care that the laws be faithfully executed." DOMA is the law. The President does not have the power to issue a binding ruling that DOMA is Unconstitutional. That power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, DOMA is the law of the land. If a President is presented with a law that he thinks is Unconstitutional he should not sign it. The same applies to every Member of Congress who votes on a law. But once passed and signed, it is the law.

There are some legal scholars who disagree, arguing that the President has no more obligation to enforce laws he thinks are Unconstitutional than to enforce the laws of another country. A detailed discussion of this position is beyond the scope of this article except to note that the real issue is "who decides if a law is Constitutional." If the President does, then there are only two branches of government and the Presidency can override the legislature at its will. If both the Court and the President decide, you have uncertainty and chaos. It the decision rests with the Court, you have certainty, order, and a true separation of powers. Thankfully, most Presidents have respected this third view and the circumstances where laws have been ignored are rare.

Exactly what is the Constitutional question in the DOMA cases?

The Constitutional issue presented in DOMA and the Holder's letter is straightforward, but a discussion requires some background. Section 3 of DOMA, says that for purposes of all Federal laws a marriage is only between a man and a women. In effect the Federal government will not recognize same sex marriages under state laws for purposes of anything the government does, from granting spousal benefits to child custody and alimony.

DOMA has been challenged in several different suits throughout the country. These suits challenge DOMA by arguing that it violates the Fifth Amendment guarantee of equal protection under the law. Astute observers will note that the Fifth Amendment, unlike the Fourteenth Amendment, does not include the words "equal protection." Rather, it guarantees that no person shall be

deprived of life, liberty, or property, without due process of law;

This creates an anomaly because the Fifth applies to the Federal Government while the Fourteenth applies to the states. The anomaly was resolved in the 1954 case Bolling v Sharpe, where the Supreme Court found that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive" and that it was "unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on the States. That ruling created the Fifth Amendment right of equal protection against the Federal Government.

Before getting to the President's DOMA decision we have to understand how courts analyze equal protection challenges to laws. First, the court decides the level of scrutiny that should be given the challenge. In cases of discrimination based on race, religion, and other so-called "suspect" classifications courts use something called "strict scrutiny." Suffice it to say, if strict scrutiny is applied in a case, the law is usually struck down. At the lowest end of the spectrum is the "rational basis" test, which is basically whether the challenged classification is rationally related to a legitimate governmental interest. In between is something called "heightened scrutiny," in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. Only after the court decides on the level of scrutiny does it look at the law to see if it satisfies that scrutiny.

The DOMA decision is all about the difference between rational basis and heightened scrutiny, which standard should apply to DOMA, and how it will affect the outcome.

This is what President Obama did. He has been defending DOMA challenges in Circuits where the courts have held that the rational basis standard applies to DOMA. In those case he has said DOMA satisfies that standard. But two recent cases arose in the Second Circuit, where no standard has been established. He and DOJ re-examined the question of the appropriate standard for those case and determined that the heightened scrutiny standard should apply. Furthermore, they determined that if that standard applies, DOMA will not meet the standard and is therefore Unconstitutional. The President also said since the United States was now taking that position in the Second Circuit, it would inform the courts in the other circuits that it would be arguing the same position in those cases.

If Obama's not defending the law, why is he staying in the case?

The simple answer is that DOJ is in these cases until the Court dismisses the case or dismisses the Government from the case. Defendants can't just drop out. Now Justice will argue that the new standard should apply and that the law is Unconstitutional under that standard but the court may not agree. While it doesn't happen often, there have been cases where a court has not agree with a DOJ interpretation that a law is Unconstitutional. In fact Holder recognized that a court may disagree with DOJ's position on heightened scrutiny, when he wrote,

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.

Also, some of these cases involve other issues, such as in one case wether an employee can actually sue the Office of Personnel Management. Those issues still need resolution. Finally, there will be timing and implementation issues that DOJ will want to weigh in on.

How can he think DOMA is Unconstitutional if he doesn't believe in gay marriage?;

People who ask this question are either cynical or don't understand this is a strength, not a weakness, of President Obama. It is well know that the President has said that his personal views on gay marriage are evolving but as of now, based on personal moral beliefs, he does not support it. So what you have is a President who is refusing to let his personal morality dictate his legal analysis of a Constitutional issue. How refreshing. Wouldn't it be nice if all Presidents and all Members of Congress, both Senators and Representatives, acted the same way.

Does this impact gays in the military following DADT repeal?

The final outcome most certainly affects gays in the Military following the repeal of Don't Ask, Don't Tell. In the future gays will be able to openly serve. When they can it is a certainty that there will be same sex marriages involving members of the military. As long as DOMA remains in force the spouses of those service members will not get the same benefits afforded to other spouses. In that sense they will be in the same position that same sex spouses of Federal civilian employees are today.

Constitutional Misdirection Will Not Derail the Health Care Law

2011-02-09T21:16:00.012-07:00

The subtitle for this article could be “What is bad for pot growers is good for the health care law.”

Many pundits have prognosticated that the Affordable Care Act will be struck down by the Supreme Court because two District Court Judges (of four that have ruled on the merits) ruled some or all of the law violated the Constitution. These pundits are wrong for three simple reasons.

The ACA presents a very simple Commerce Clause case that is supported by at least sixty years of precedent. Second, the opponents of the law actually know this which is why their challenge is not based on traditional Commerce Clause arguments but rather what could politely be referred to as Constitutional misdirection. Lastly, it is not certain this case will go to the Supreme Court, but if it does it may ultimately be sustained by eight Justices.

Since the 1944 case, US v Southeastern Underwriters, the Supreme Court has held that the business of insurance involves interstate commerce. If insurance is commerce, it is impossible to argue that the business of health insurance is not commerce . As interstate commerce Congress can regulate that business through its authorities in the Necessary and Proper Clause, which provides:

The Congress shall have Power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

As long as a federal law or regulation is necessary and proper to achieve an end that falls within a power granted to the Congress and as long as that law or regulation does not conflict with any other provision of the Constitution, it will be sustained. These points were recently made by Charles Fried, President Reagan’s Solicitor General and a self described opponent of the ACA and the individual mandate, in recent Congressional testimony.

So the question becomes whether the insurance mandate is necessary and proper to the achievement of Congress’ design in the regulation of the health insurance industry. Before looking at some Supreme Court Cases on the subject, there is actually support for the proposition from an unlikely source. The recent decision in Florida v HHS striking down the ACA actually supports that proposition. Yes, the court did rule that the insurance mandate, the requirement that individuals purchase insurance, is unconstitutional. But the court went on to rule that since that provision is absolutely integral and indispensable to the entire regulatory scheme established in the ACA, the entire law would have to be struck down. Well, the court was incorrect in saying that the mandate was unconstitutional but was clearly correct in saying the mandate is entirely necessary and proper and, in fact, an essential feature of the regulatory scheme established by Congress.

Opponents of the ACA have argued that a 1995 case in which the Supreme Court struck down a law making it a crime to have a gun near a school zone suggests that the Court has begun limiting Congress’ Commerce Clause powers. They are correct that US v Lopez struck down the Gun Free School Zones Act of 1990, but it did so because the Court found that

The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress "[t]o regulate Commerce . . . among the several States . . . ." U. S. Const., Art. I, §8, cl. 3.

Lopez hinged on one question: does possession of a gun in a school zone affect interstate commerce. In support of the law, the Government argued “that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways.” The Court didn’t buy the argument. In a widely quoted conclusion, the Court stated,

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do.

Whether you agree with the Lopez decision or not, one thing is clear, it does not represent a significant change in Commerce Clause law and, moreover, should have no impact on any ACA cases. There is no doubt that the health insurance industry involves interstate commerce, that decisions to purchase or not purchase insurance have a direct effect on that commerce, and that the mandate to purchase insurance is not only necessary, but essential to giving effect to the overall regulatory scheme enacted by Congress.

Among lawyers there is a well-known adage when arguing a case: if the law is on your side, argue the law; if the facts are on your side, argue the facts; and if neither is on your side, argue the equities. The opponents of the ACA have adopted a revised version of this saying. They don’t have the law on their side. They don’t have the facts on their side. So they are left arguing irrelevancies. In this case the irrelevancy they argue is that by requiring people to buy insurance, Congress is not regulating activity, but rather is regulating inactivity. Even if that argument were valid, it is irrelevant.

The reason it is not valid is that Federal laws are filled with countless examples of cases where inactivity is sanctioned. If you don’t pay your taxes, i.e., you take no action, you will be sanctioned. The same applies to a business that is inactive when it comes to installing pollution control equipment or safety equipment for its workers. The requirement in the ACA that people buy health insurance is no different. If you don’t do it, you can be fined.

But frankly, that discussion is irrelevant, it is misdirection. The only questions before the Court is whether the business of health insurance constitutes interstate commerce and whether the mandate is a necessary and proper exercise of Congress’s power to achieve the regulatory scheme it has established in the ACA. Anything that is essential to achieving that scheme is Constitutional unless it conflicts with some other Constitutional provision.

In that regard, the opponents have suggested that they have some form of as yet unrecognized “liberty” interest in not buying insurance and that this interest overrides the Congress’ interest in having a universal health care system. However, in making this argument, they have to contend with the plight of Mr Jacobson. In 1905 the Supreme Court ruled in the case Jacobson v Massachusetts that a person could be fined or imprisoned for failing to have a smallpox vaccination that was required by state law. If you can be fined for failing to agree to a potentially painful vaccination, surely you can be fined for failing to buy health insurance.

Throughout the debate, there has been much discussion about whether Justice Scalia will vote to uphold the law. Before getting to that issue it is important to note that this case may not necessarily go to the Supreme Court. Most cases heard by the Supreme Court are considered only because the Court granted, in its sole discretion, what is called a writ of certiorari. Except in rare case not applicable here a case will not be heard unless certiorari is granted. The court has established non-binding rules governing the granting writs of certiorari. The most likely reason for certiorari to be granted in this case will be if there are conflicting decisions by two or more Courts of Appeals which have heard the case. We’ll have to wait and see whether such a split occurs, but one should not be surprised if all the Circuit decisions ultimately uphold the law. If that is the case, the Court may well decide to not hear the case.

Assuming the case does go to the Supreme Court, many people think that the outcome will hinge on the vote of Justice Kennedy, the so-called “swing” Justice. However, there is reason to believe the vote will not be that close. Lawrence Tribe recently argued this same point in a NYT opinion piece. But while Tribe speaks more generally about the Court and all the Justices, there is reason to believe that the key Justice will be Antonin Scalia.

When one looks at what Scalia has written in other Commerce Clause cases, it is clear that for him to strike down this law he would have to repudiate several of his past opinions and decisions. Chief among them is a notable case that will also present some irony for him and his critics.

Remember that 1995 case, US v Lopez, involving guns in school zones that the opponents want to hang their hats on. Well, ten years later, in 2005, the Court decided Gonzalez v Raich, which should have much more of a bearing on the issue. Raich involved the question of whether the Federal Controlled Substances Act was Constitutional in so far as it regulated (criminalized) the private, noncommercial, growth and consumption of marijuana. The law was found to be with Congress’ Commerce Clause powers and was roundly criticized by many progressives. Whether one agrees with the result in that case or not, it does illustrates how broadly the Court, and Justice Scalia in particular, has been willing to read the powers of Congress under both the Commerce Clause and the Necessary and Proper Clause. In his concurring opinion Scalia stated,

The application of these principles to the case before us is straightforward. In the CSA [Controlled Substances Act], Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce “extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.” Darby, 312 U.S., at 113. See also Hipolite Egg Co. v. United States, 220 U.S. 45, 58 (1911); Lottery Case, 188 U.S. 321, 354 (1903). To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances–both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S.C. § 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.

To summarize, a non-economic, non-commercial, activity that occurs solely within a state can be regulated by Congress as long as it is an appropriate means for achieving a broader objective that involves regulating interstate commerce.

There is one last point. It has been argued that since the ACA requires people to purchase something from a private party, as opposed to paying a tax to the government, that requirement cannot be sustained. As with the “inactivity” argument there is no support for this. The court has upheld similar requirements in the past such as in US v Darby Lumber Co where the Court upheld the minimum wage. That law requires employers to pay money against their wishes to private parties, their employees. You can read more about that case in this article. The Darby opinion was cited by Scalia with approval in his Raich opinion where he wrote:

In Darby, for instance, the Court explained that “Congress, having … adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards,” 312 U.S., at 121, could not only require employers engaged in the production of goods for interstate commerce to conform to wage and hour standards, id., at 119—121, but could also require those employers to keep employment records in order to demonstrate compliance with the regulatory scheme, id., at 125. While the Court sustained the former regulation on the alternative ground that the activity it regulated could have a “great effect” on interstate commerce, id., at 122—123, it affirmed the latter on the sole ground that “[t]he requirement for records even of the intrastate transaction is an appropriate means to a legitimate end,” id., at 125.

It would be difficult to now argue that while Congress can require an employer to pay an employee a specified wage against his wishes, Congress cannot require an individual to pay an insurance company to purchase an insurance policy. In each case individuals are being required to pay money to private parties that they don’t wish to pay.

Is Sarah Palin Running For First Lady?

2010-12-20T14:22:00.003-07:00

There has been much discussion of late as to whether Sarah Palin is running for the Presidency. People have been trying to read the tea leaves by examining her book tours, her television shows, her numerous Faux interviews, and her tweeting to discern her intentions. The problem with the media analysis of Palin is that the pundits are looking at the wrong political office. Palin is not a campaign for the Presidency. Nope. The evidence is clear. She is running for the Office of First Lady.

“Preposterous,” you say, “she can't run for First Lady.” Well, of course she can. After all in 2008 she ran for Vice President, a position so far above her education, abilities, and temperament, that she would have no trouble seeing the Office of First Lady as within her grasp.

It is clear that she is running for First Lady, rather than President, because she has been waging a relentless campaign to defeat the current incumbent of that office, Michelle Obama. Everyone knows that when you are in a political campaign the very first thing you have to do is attack your opponent, bringing that person down in the eyes of the electorate. That is exactly what Palin has been doing. Why just yesterday she ridiculed Mrs. Obama’s anti-obesity campaign

While making s'mores at one point during Sunday's episode, the former Alaska governor proclaims the marshmallow and chocolate treat is "in honor of Michelle Obama, who said the other day we should not have dessert." 

This is just the latest battle in Palin’s jihad against Mrs. Obama for having the temerity to suggest that there is an obesity problem in the United States and that the First Lady should use the bully pulpit of her position to encourage better eating habits among Americans, particularly America's youths. A few weeks ago Palin attacked Mrs. Obama saying,

"Instead of a government thinking that they need to take over, make decisions for us according to some politician or politician's wife's priority," Palin said, "just leave us alone, get off our back, and allow us as individuals to exercise our own God-given rights to make our own decisions, and then our country gets back on the right track."

And who can forget the famous cookie incident where

"Mama Grizzly" stopped by a school in Pennsylvania with dozens of cookies, a gesture obviously in protest to Michelle Obama's campaign for better nutrition.

"Who should be making the decisions what you eat and school choice and everything else?" Palin asked the students. "Should it be government, or should it be the parents?"

Yes, Palin has been attacking Michelle Obama relentlessly for over a year, making fun of virtually everything Mrs. Obama does. And there is only one reason for these attacks. Palin is fighting hammer and tongs to succeed Michelle Obama as the next First Lady of the United States.

Of course some people might say that you can't really run for the office of First Lady, you have to be married to the person elected President. In response Sarah would say, you don't know Palin. After all, she convinced the voters of Alaska to elect her for an eighteen month tour as governor of a state with the same population as a typical Congressional District and with about a third the population of the average Borough in the City of New York. She also convinced a grumpy old man to pluck her from obscurity and place her on his ticket as a Vice Presidential candidate. Having achieved those seemingly impossible feats surely she can find a way to become the First Lady.

The obvious question arises as to how Palin and intends to gain the office of First Lady. One answer might be that she will push her husband Todd to run for the Office of Dude of the United States (DOTUS) so that she could become First Dudess of the United States (FDOTUS). It shouldn't be hard to get Todd elected. After all Sarah had great success bringing about the election of many mama grizzlies during the 2010 congressional elections, such as Sharon Angle, Christine O’Donnell, and Carly Fiorina. With those victories behind her certainly she can switch gears and find a way to promote the snowmobiler in chief to the highest office in the land.

Those who are skeptical about this strategy believe she has a much more sinister and devious plan in mind. They think she intends to directly substitute herself for Michelle Obama at the right hand of her husband Barack. All she has to do is convince the President that Michelle is no longer an asset and is not worthy of his affections. These attacks on Michelle's public outreach are designed to show the country and the President how truly out of touch Mrs. Obama is. They reveal that Michelle is nothing more than a socialist, communist, bleeding heart, do gooding, anti-dessert, vegetarian.

Once phase one is over and Michelle is exposed as a political liability all Sarah needs to do is wink her eye and cast one of her come hither looks and poor defenseless Barack and he will be eating out of the palm of her hand. Of course there is the small technicality of the fact that Sarah is currently married to Todd, but that is a problem easily solved. There will be many snowmobile races on frozen lakes in Alaska this winter. Everyone knows how hazardous that sport is.

Get ready America, the mother grizzly of all battles has been joined.

Breaking - Supreme Court Declares Minimum Wage Constitutional

2010-10-07T11:28:00.003-06:00

Disclaimer. This news first broke in 1941. But it would be breaking news today for Joe Miller, Republican and Tea Party candidate for Senate from Alaska. Hopefully it will be of interest to others.

Joe Miller gave an interview on ABC News in which he said that the Federal minimum wage is Unconstitutional. Specifically, he said,

That is not within the scope of the powers that are given to the federal government

When asked to explain the legal basis for his conclusion he said,

"What I'd recommend that you do is go to the Constitution and look at the enumerated powers because what we have is something that we call the 10th amendment that says, look if it's not there if it's not enumerated, then it's delegated to the states," Miller said. "Everything that's not there is reserved to the states and the people."

Well, maybe not so much. In 1941 the Supreme Court, in a unanimous opinion in the case US v Darby Lumber Company upheld the Constitutionality of the Fair Labor Standards Act (FLSA), the law that established the Federal minimum wage. The FLSA also guaranteed time-and-a-half for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor."

Now Mr. Miller is entitled to the view that the minimum wage is bad policy and he may disagree with the Darby decision, but he is not entitled to the view that the law is Unconstitutional. As a guy who allegedly graduated from Yale Law School (what is it with these Yalies these days) he should know that since the decision in Marbury v Madison in 1803, it is settled law that the Supreme Court is the final arbiter on the question of whether a law is Constitutional. He can agree with or disagree with Supreme Court decision, but if the Court decides that a law is Constitutional that is the final word until such time as the Court reverses itself, which happens but rarely.

Now what about Mr. Miller's brilliant 10th Amendment insight. Did the Court ignore that issue in the Darby decision? Hardly. It was addressed straight on and ripped to shreds.

Our conclusion is unaffected by the Tenth Amendment, which provides:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908. Bolding Added

Got that Mr. Miller and all you other tenthers, "The amendment states but a truism that all is retained which has not been surrendered."

The Court found ample basis for upholding the law in the Commerce clause of the Constitution. Here are a few select provisions in the opinion.

The power of Congress over interstate commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." Gibbons v. Ogden, supra, 22 U. S. 196. That power can neither be enlarged nor diminished by the exercise or nonexercise of state power. Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra. Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Hoke v. United States, supra.

This is a very sweeping view of the Constitution, which though slightly eroded by subsequent decisions is still largely intact. And here the Court discusses the motive for the law which is as valid today as when it was enacted in 1938

The motive and purpose of the present regulation are plainly to make effective the Congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows. The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction, and over which the courts are given no control. McCray v. United States, 195 U. S. 27; Sonzinsky v. United States, 300 U. S. 506, 300 U. S. 513, and cases cited.

So Mr. Miller, you may want to go to a world prior to 1803, when there was no arm of government that was the final voice on the meaning of the Constitution, a world where every law was Constitutional or Unconstitutional depending on who you asked, a world in which uncertainty and gridlock could have ruled. Or you may want to go back to a world prior to 1941 when it was not clear whether the FLSA and its provisions governing the minimum wage where Constitutional. But one thing you cannot do, is claim that those issues have not been decided. I would have thought you would have learned that in your Yale Law School if not earlier in your eighth grade civics class.

Beyond Mr. Miller, and the baggers' deficiencies in civics education, there is a larger concern. Most Federal laws governing economic activities are grounded at least in part in the authorities of Congress derived from the Commerce Clause. The right and their supporters in the Supreme Court have been attacking the Commerce Clause for years. That attack can be seen in Miller's argument where he would basically say all commercial activity can only be regulated by the states. That's food, drugs, health, safety, you name it. The stakes are huge. Hardly any aspect of our lives would be unaffected if they had their way. They would take us back to the pre-Constitution days of the Articles Of Confederation. There is a special irony in their arguments since the absence of power to regulate commerce between the states was one of the principle reasons why the Articles were replaced by our current Constitution.

This is the right's way to undo a Century of progressive Federal legislation. The stakes in this and every election are high. Please encourage all your friends to vote and do what ever else you can to get out the vote.

Bloomberg's Moving Speech on the Mosque

2010-08-03T14:57:00.002-06:00

Mayor Michael Bloomberg gave a very thoughtful and moving speech today in support of the Mosque near the World Trade Center site. Every once in a while he gets it right and this was one of those time. There were several themes in the speech, but I found three of them very compelling.

He talked about the struggle for religious freedom in New York in a historical context. First he discussed the struggles of Jews and Quakers,

“In the mid-1650s, the small Jewish community living in lower Manhattan petitioned Dutch governor Peter Stuyvesant for the right to build a synagogue, and they were turned down. In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion. It was perhaps the first formal political petition for religious freedom in the American colonies, and the organizer was thrown in jail and then banished from New Amsterdam.

Then, to show that bigotry had a long reach in terms of years and religions, he discussed the anti-Catholic animosity,

“In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion, and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780s, St. Peter's on Barclay Street, which still stands just one block north of the World Trade Center site, and one block south of the proposed mosque and community center.

He explained how we as a nation have grown beyond that and why the bigotry of the past was anathema to Americans today. He specifically talked about the first responders who died on 9/11 and why denying the religious liberties of Muslims would be an insult to their sacrifice,

"On Sept. 11, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked, 'What God do you pray to?' (Bloomberg's voice cracks here a little as he gets choked up.) 'What beliefs do you hold?'

"The attack was an act of war, and our first responders defended not only our city, but our country and our constitution. We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights and the freedoms that the terrorists attacked.

Finally, he put the issue in the larger context of our core Constitutional values, explaining why the World Trade Center area must always be a reflection of those values and a beacon to the world of the principles we hold dear,

“This nation was founded on the principle that the government must never choose between religions or favor one over another. The World Trade Center site will forever hold a special place in our city, in our hearts. But we would be untrue to the best part of ourselves and who we are as New Yorkers and Americans if we said no to a mosque in lower Manhattan.

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies' hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

In taking this position, Bloomberg also seems to have positioned himself against Sarah Palin and Osama Bin Laden. According to Jeffery Goldberg of the Atlantic

The Cordoba Initiative, which is headed by an imam named Feisal Abdul Rauf, is an enemy of al Qaeda, no less than Rudolph Giuliani and the Anti-Defamation League are enemies of al Qaeda. Bin Laden would sooner dispatch a truck bomb to destroy the Cordoba Initiative's proposed community center than he would attack the ADL, for the simple reason that Osama's most dire enemies are Muslims.

Bin Ladin's lunacy is well known but one has to wonder why Sarah Palin agrees with his fundamentalist bigotry.

It is time for those who sow hate and intolerance, those who have no understanding of our core Constitutional principles, to be quiet. They have spewed their vitriol long enough. We must not stand for it any more, on this issue or any other.

Frogmen, Dammit! Send In The Frogmen.

2010-05-25T16:15:00.001-06:00

The Obama administration and British Petroleum have been stumbling around in the dark, clueless as to what to do with the Gulf leak. And the amazing thing was the solution was right at hand. Last Thursday on Hardball, Chris Matthews explained that the solution was simple. Send in the frogmen.

MATTHEWS: Well, that‘s what I‘m asking about. Is the problem getting a submarine to get—can we use our fleet of submarines to go down there and get men, frogmen, down there with torches and begin to close up that—that hole in that pipe? What is the problem, getting there? Is it the transportation to the bottom of the sea, a mile down, or is it the technology of closing that hole?

You see. It's so simple. Just get our Navy boys down there a mile below the surface with some wrenches, and blow torches and maybe some chewing gum and bungee cords and stop that damn leak.

On the Friday edition of Hardball Matthews went a bit further saying that if Captain Nemo could do it why can't we.

MATTHEWS: He says—he stands by and hectors them, but they‘re the ones responsible for fixing—I don‘t know why all the submarines in our fleet aren‘t down there. It would seem to me that Captain Nemo back in the 19th century in fiction would have been able to get down there and fix it with soldering irons and blow torches and filling up that pipe, or with cement or gravel or whatever it takes to put on top of that, just start dumping it there with our big tankers. I don‘t know why we‘re not doing it. We‘re counting on one company, a British company, to solve a problem that‘s been created in our back yard, and I don‘t quite get it.

Matthews statements demonstrate clearly the idiocy of conflating fantasy with reality and having strongly held opinions in a fact free mind. Furthermore they are evidence of the very arrogance that got us into this mess in the first place.

There are no easy fixes to an oil leak one mile beneath the surface of the ocean. If there were, it would have been implemented. But the sad truth is that the oil companies deluded themselves into thinking they could drill safely at those depths, with a faith in their technological prowess that has now been demonstrated to be a crumbling edifice of self deceit and hubris. Not to be outdone, the federal government, suffering through decades of a deregulatory environment, bought in to the concept that drilling was safe and well within our technological abilities.

But what would be comical if it were not so pathetic is the incessant blabbing we hear from pundits in the media screaming at the tops of their lungs "why isn't Obama doing more." Top among these was David Gergen who regurgitated a five-point plan this morning as if it was passed to him on some stone tablets. Well the simple fact is that all five points involve steps that the Obama administration has already taken ,as pointed out by citizen K.. There is no magic potion, there is no silver bullet.

The United States government, including its military, is not in the oil drilling business. It does not have the capacity using its own machinery and personnel to fix this leak. We can debate whether it should have had that capacity and whether funds should be spent to develop that capacity in the future, but as of today it simply doesn't exist. The government has equipment that can be helpful in dealing with this type of catastrophe but that is all. For now, we must rely on the oil companies to stop the leaks. And as far as the cleanup and mitigation of the spill, no effort should be spared but we should have no illusions. Only a small fraction of that oil will ever be contained or removed. The damage will be profound and will only be lessened by Mother Nature and the passing of time.

But go ahead Chris, keep dreaming of Captain Nemo and frogmen. But I have one suggestion. It might be best to keep those thoughts to yourself. in the words of Abraham Lincoln,

Better to remain silent and be thought a fool than to speak out and remove all doubt.

Clarence Thomas Smacked Down Like Never Before

2010-05-17T14:07:00.000-06:00

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old . . ., the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

Today, the Supreme Court held, for the first time, that the Constitution prohibited sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide case. In Graham v Florida, the Court established this new rule which, for the first time, extends the special treatment of juveniles to non-capital cases. The majority opinion was written by Kennedy, with Stevens, Ginsburg, Breyer, and Sotomayor concurring. Justice Roberts, agreed that it was unconstitutional to impose that sentence on the juvenile defendant in the case, but would not have created a rule that would apply to all other juveniles in all other cases.

There are many noteworthy aspects to this decision that will have a large effect on Eight Amendment cases moving forward. But no less striking is the concurring opinion of Justices Stevens, Ginsburg and Sotomayor that contains the quotation above. It is one of the most biting and sarcastic smackdowns of a Justice one will ever read in a Supreme Court opinion. The concurring opinion is very short and is set forth in full below.

JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, concurring.

In his dissenting opinion, JUSTICE THOMAS argues that today’s holding is not entirely consistent with the controlling opinions in (citations omitted). Given that “evolving standards of decency” have played a central role in our Eighth Amendment jurisprudence for at least a century, (Citation omitted), this argument suggests the dissenting opinions in those cases more accurately describe the law today than does JUSTICE THOMAS’ rigid interpretation of the Amendment. Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete, post, at 8–9, and n. 2.

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old . . ., the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

The disrespect that Justices Stevens, Ginsburg and Sotomayor showed for Thomas is completely warranted by the absurdity of his opinion. His mind is so lacking in ability that it is unable to comprehend that acceptable standards of conduct and behavior can evolve over time. One would have to read his whole dissent to get the full flavor of Thomas' crimped thought processes but here is an example

The Court ignores entirely the threshold inquiry of whether subjecting juvenile offenders to adult penalties was one of the “modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.” Ford v. Wainwright, 477 U. S. 399, 405 (1986). As the Court has noted in the past, however, the evidence is clear that, at the time of the Founding, “the common law set a rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.” Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (citing 4 W. Blackstone, Commentaries *23–*24; 1 M. Hale, Pleas of the Crown 24–29 (1800)). It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards.

So if the founders thought it was OK, it's fine by Thomas. That would of course include whipping people, putting them in stocks, and, Thomas' favorite,

capital punishment for offenses ranging from “ ‘run[ning] away with . . . goods or merchandise to the value of fifty dollars, . .

One last note. Scalia and Alito signed on to Thomas's dissenting opinion but even Alito could not agree with that portion of Thomas' opinion. Hope springs eternal.

The original Constitution was flawed, and not just because of the slavery provisions.

2010-05-10T15:02:00.003-06:00

Republican National Committee Chairman Michael Steele and some of his fellow travelers are trying to suggest that Supreme Court nominee Elana Kagan is not qualified to serve on the high court because in a 1993 law review article she wrote that the Constitution as originally enacted was defective.

Steele's criticism has been widely ridiculed because anyone with the least understanding of the issue knows that Kagan was pointing out that the original Constitution not only endorsed slavery but also provided for slaves to be counted as three-fifths of a white person for purposes of Congressional apportionment. Additionally, Kagan's article was written in honor of the then recently deceased Justice Thurgood Marshall who had made the same point in a speech in 1987 at a commemoration of the 200th anniversary of the Constitution. For this reason alone, Kagan's criticism of the original Constitution is unassailable.

But that criticism of the Constitution is manifestly valid for another reason — the original Constitution did not include the Bill of Rights, those first ten amendments that guarantee our liberties.

It is hard to imagine anyone thinking that a Constitution without the following provisions was not defective:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

And yet that appears to be the position of that noted Constitutional scholar Michael Steele. Or maybe his education stopped before his first American history class. For whatever reason he doesn't know that the Constitution as originally adopted by the Constitutional Convention on September 17, 1787 and as ratified on June 21, 1788 was considered flawed by many of the framers because it did not include a bill of rights. That flaw almost kept the Constitution from being ratified.

During the drafting of the constitution there had been considerable debate as to whether or not to include specific provisions guaranteeing the rights of citizens. A proposal was made to include such provisions but it was defeated by the Constitutional convention. The issue was not whether individual rights should be guaranteed, but whether including such provisions in the Constitution was appropriate. Many framers thought that the existing bills of rights in each state had would be sufficient to protect the citizenry. There was also concern that if the Constitution enumerated certain specific protected rights that would suggest that other rights not mentioned would not be protected. The debate surrounding this issue was one of the dividing lines between the Federalists who favored adoption of the Constitution and the anti-Federalists who opposed its adoption.

After the first five states ratified the constitution, the absence of a Bill of Rights became a real stumbling block in Massachusetts. Some members of the Massachusetts Legislature opposed ratification on this ground alone and others said that the state's ratification should be contingent upon adoption of a Bill of Rights. A compromise was reached whereby Massachusetts ratified the Constitution but with strong recommendations for the adoption of a Bill of Rights. That same posture was taken by four more states. As a result, when the first Congress met on March 4, 1789 James Madison proceeded to draft a list of 10 amendments patterned on the Virginia's Declaration of Rights. These amendments which came to be known as the Bill of Rights were ratified by three fourths of the states on December 15, 1791.

To recap for the benefit of Mr. Steele, the first ten amendments to the Constitution were not enacted until three years after the Constitution was ratified and four years after it was adopted by the Constitutional Convention.

There is a special irony in Mr. Steele and his Republican cohorts ignoring this obvious deficiency in the original Constitution - the original Constitution did not contain their two favorite provisions.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Imagine that. According to Mr Steele a Constitution without the right to bear arms would be a perfect document. And that document would not be in the least defective if it was silent on the rights reserved to the states and the people. Oh yes. The document would also be perfect if people could own slaves and if slaves counted as three-fifths of a white man for purposes of Congressional representation.

Who Is Our Biggest Creditor? Hint: It's Not Japan or China

2010-03-16T12:53:00.003-06:00

There has been debate lately about foreign countries holding our national debt, and particularly whether China or Japan is our largest creditor. The numbers seem large for sure. As of January 1, 2010, China owned $889 Billion and Japan owned $765 Billion of our $12.6 Trillion national debt. But guess what? In the world of national debt holders those countries are mere pikers.

As of January 1, 2010, Social Security taxpayers owned $2.54 Trillion of that debt, more than Japan and China combined. And even those much reviled Federal Employees owned $780 billion of the debt. In fact, of our $12.6 Trillion national debt, over one-third, $4.5 Trillion, is actually inter-governmental borrowings and most of that is borrowed from trust funds like Social Security which have an accumulation of excess tax payments.

A list of these funds and their current account balances can be seen on pages 24 and 25 of this Treasury report.

So why is it that over a third of our national debt is not owed to people who invested in treasury securities but rather to people who have been overpaying taxes and fees to the government for many years? The answer is simple. The United States government has been under collecting income taxes for decades and has been masking the size of the deficit by borrowing money from people who pay Social Security taxes, Medicare taxes, Railroad retirement withholding, federal employee retirement withholding and myriad other taxes and fees .

Now the theory behind what has happened to Social Security and the other trust funds is not bad. For instance Social Security used to be a pay-as-you-go system, where tax payments were received and almost immediately paid out to beneficiaries. Since such a system is not fiscally prudent, in 1983 the program was amended to increase the amount of Social Security taxes paid and lengthen their retirement date in order to develop a reserve of funds they would be available to provide to beneficiaries in the future when the baby boomers retired.

It was fiscally responsible. But this is where the twist comes in. What was the government to do with all this excess money, which as discussed above has now grown to $2.54 trillion. Well, it could invest that money in the stock market, or it could invest it in overseas bonds, or it could simply lend the money to the Treasury and thereby reduce the amount of public borrowing the Treasury would have to do in years when we were running a deficit.

Of course, Congress chose the last option, since that is by far the most prudent. It would not be feasible for the federal government to invest Social Security funds in the stock market without incurring real or imaginary criticism for manipulating stock prices. Moreover, it would not be responsible to do so since Social Security is the safety net for retirees, the guarantee that no matter what else happens to their other investments they will always have a benefit that can be counted on. Similarly it would make no sense to invest in the bonds of other countries rather than our own.

Consequently, every time the treasury took in more Social Security or other trust fund taxes than were to be paid out that year it borrowed those excess amounts. Each trust fund was issued a certificate every time this borrowing took place that show the amount borrowed and the interest rate that would be paid on the instrument.

All of this makes tremendous sense as long as the Congress and, for that matter, the people who pay income taxes, remember that this money has to be repaid. But we never hear discussion of that. Rather, when the Federal government runs huge deficits, all we hear is that we needed to enact "entitlement" reform. What are they saying when they talk about entitlement reform? They are definitely not talking about increasing income taxes to pay back Social Security taxpayers for all the money that has been borrowed. No, they talk about increasing Social Security taxes again or delaying the retirement age again.

According to the 2009 Social Security Trustee's Report, Social Security taxpayers will continue to pay into the Social Security trust fund more each year than is withdrawn from the fund until approximately 2016. (Due to the recession, that will not be the case this year, but excess payments should resume next year.) It should be noted that the 2009 trustees report contained projections that were more pessimistic than in prior years. This is particularly noteworthy because, as a general rule, the trustees have been very conservative in their projections. Their analyses are based on estimates of population growth, inflation, gross domestic product, interest rates, and other factors that influence the amount of money coming in to the Social Security trust fund as well as the amount of money being paid out. Historically they have always made their projections based on very conservative analysis. This is illustrated by the fact that the current projection that the trust fund will not be exhausted until 2037 is almost 2 decades later than the 2018 projection that was made when the 1984 changes were enacted.

Assuming the current Trustee projections are correct, beginning in 2016 Social Security tax receipts will not be enough to make payments to beneficiaries and the Social Security program will have to start redeeming those instruments that were issued by the Treasury. Based on current projections ongoing tax payments plus bond redemptions should be enough to make full payments to Social Security recipients through 2037. At that point there would have to be a 24% reduction in Social Security payments for a period of years before the fund would return to balance. Remember, though, that would not be a reduction from the level of payments made today, but rather the higher inflation adjusted payments that would be made in 2037. The fact that there could be a problem beginning in 2037 may suggest that some minor changes should be made to the Social Security program today to ward off that eventuality. However, before we address the 2037 problem we need to address the 2010 problem.

It should be noted that many Republicans, who have been opposed to Social Security since its inception, continue to lie about Social Security. For instance, Jane Norton, no relation thankfully, who is running for to become a Senator from Colorado, recently called Social Security a ponzi scheme,

"With regard to Social Security, it has turned into a Ponzi scheme. The money that people pay into it should be there for when they are ready to retire."

Well, nothing could be further than the truth, but I guess poor Jane would never let fundamental facts get in the way of her anti-government crusade. Sadly, though, she is not alone. Most people have no idea that Social Security taxpayers have been building a nest egg. It is income taxpayers who have been underpaying taxes.

Some may ask, "well aren't Social Security taxpayers and income taxpayers the same?" The answer is that while there is some overlap they are not the same. Social Security taxes are only paid on wages and they are only paid on wages below $106,800. Moreover, Social Security taxes are paid on wages without regard to the number of dependents you have or whether you are earning the minimum wage. In contrast income taxes are reduced based on the number of dependents you have and the amount of income you earn. In addition all of your income over $106,800 and, more importantly all of your income subject to capital gains taxes is exempt from Social Security taxes. That means the richest Americans pay tiny fraction of their income in Social Security taxes, while the working classes pay a substantial amount.

In fact, the amount of Social Security taxes paid by wage earners is much higher than they realize. The amount of Social Security taxes deducted from your wages is 6.2% and there is an additional 1.45% deducted for Medicare. What most people don't recognize is that your employer matches those amounts. That means a total of 12.4% of your wages is paid for Social Security and 2.9% for Medicare. Most economists agree that if the employer did not have to pay his portion of Social Security or Medicare taxes, those amounts would be added to the employees wages. That is why the real tax rate wage earners pay for Social Security and Medicare is twice what they think it is.

But the wealthy in our society such as the top 400 income earners, don't have to worry about any of this because virtually all of their income comes from capital gains, not wages. Consequently, they pay very little in Social Security taxes as a percentage of their overall income. Additionally, their income tax rate is generally the capital gains tax rate of 15%, which is less than half the top tax rate of 35% paid on wages. That is why the universe of Social Security taxpayers and income taxpayers is very different both in terms of who is in each group and what overall percentage of their income they pay in taxes.

Whenever I hear someone who claims to be concerned about fiscal responsibility that we need entitlement reform but not a word about the income tax deficit, I can do little but shake my head. Approaching our nations fiscal problems that way is akin to a man whose house is on fire and who also has a crack in his basement. Rather than put the fire out, he decides to address the long-term problem by shoring up his foundation. That makes no sense for the homeowner and it makes even less sense for the federal government.

It is time to increase collections of income taxes in order that our tax structure will generate enough to redeemed the Treasury instruments that had been issued to the Social Security and other trust fund programs as needed to pay the beneficiaries of those programs. Only after the Congress and the people have shown the political will to do that should we go after the much longer term problem with Social Security.

It's Not Just AIG. We Subsidize All Excessive Compensation

2009-03-20T08:48:00.000-06:00

There is much justifiable outrage over the bonuses paid by AIG, a company which only exists because of taxpayer bailouts. As well placed as this sentiment is, it is but a subset of a much larger problem. We, the American taxpayers, subsidize the excessive executive compensation packages in all companies, not just those receiving direct Federal financial assistance. How? Thorough a direct subsidy in the tax code.

The tax code does two basic things. It establishes the process for collecting revenues and it provides subsidies to the activities the government thinks are worthy of support. As currently written, if a company provides bonuses and other "performance based" compensation of $10 million to an executive we, the taxpayers, give the company a tax break worth $3.5 million.

Congress has previously considered a bill, the Income Equity Act which would end this abuse, but it has never been given serious consideration. Now is the time to enact this legislation

First, a little background. Businesses are only taxed on their profit, which is computed by taking their gross income and subtracting the expenses of running the company. Prior 1993 to all of the money a company paid to its employees, including multimillion dollar salaries to executives, were fully deductible as a business expense. Since the corporate tax rate is 35%, that meant that for every million dollars a company paid an executive the company would receive a tax break worth $350,000 to partially offset the cost.

There were many negative effects to this system. First, income to the government was reduced which increased our deficit. Second, because the company and its shareholders were not bearing the full cost of executive greed there was less of an incentive to control it. Finally, we established a public policy, through the tax code, of increasing the income gap between working Americans and the super rich.

In 1993 Congress passed and President Clinton signed legislation designed to curb this abuse. Section 162(m) of the Internal Revenue Code was enacted which stated that a company could not deduct more than $1 million of compensation to an employee unless it was performance based.

That was when you started seeing all these CEOs with $1 million salaries and many millions more paid out in non-salary compensation that was papered up to look like it was performance based. Here is an excellent Business Week article that discusses the abuses. By 1997 it was clear that section 162(m) was not working as intended. That year, and repeatedly until 2007, a bill entitled the Income equity Act was introduced in an effort to curb the abuses. Representative Barbara Lee was in the forefront of the effort to enact the Income Equity Act in the last Congress, but the bill went nowhere.

The Income Equity Act would close the bonus loophole in the Internal Revenue Code by covering virtually all remuneration including salary, wages, bonuses and non-cash compensation. But it would go beyond that. Rather than the $1 million limit it would prohibit a company from deducting executive compensation paid to an individual that exceeded "25 times the lowest compensation for services performed by any other full-time employee during such taxable year."

By enacting this legislation, Congress could finally send the right messages. It would finally put some teeth into the words, "the party is over." It would say that as a matter of policy, if business want to provide lavish levels of compensation they are going to have to pay for it. The taxpayers will no longer subsidize greed. It will also give company executives an incentive to raise their employee salaries, since those executives could also benefit from such raises. Lastly it will make shareholders more vigilant since they will know that one hundred cents of every dollar of executive compensation is coming out of their pockets.

Now is the time to enact this legislation. We need to channel the indignation about the bailout baby bonuses to the larger effort of returning fairness to our country. We must stop subsidizing corporate greed at the expense of working Americans.

The Auto "Bailout" Debate Is Prologue To What Obama Faces In The Next Congress

2008-12-05T13:41:00.001-07:00

The Detroit auto company "bailout" is the beginning of the debate Obama will be facing in the next Congress. We are in a recession and possibly heading to a depression. The questions we face now, and in the coming months, revolve around what, if anything, the Federal government should do in response to this economic crisis.

The battle lines involve some familiar themes. Should the Government spend money? If so should it be through Republican favored tax cuts, for both wealthy individuals and corporations, or should the pump be primed directly with spending on projects and programs that create or preserve employment? Second, should the government actions promote well paying jobs, including unionized jobs, or should we go for the cheapest labor possible, with the secret hope of busting the union movement? Lastly, do we want to help people in this time of crisis or fiddle around enough so that the economy continues to slide with the hope of regaining lost seats in the next election and in the 2012 Presidential race?

These issues are at the core of the current debate and will be front and center when President Obama proposes new spending on Infrastructure, health care, and other priorities and revisions to the existing tax policies that favor wealth, capital, and the wealthy.

I don't carry any brief for Ford, Chrysler and GM. Many of their past actions have created the vulnerabilities they now face. But they are charting a new course. More importantly, they are an integral part of our manufacturing base. One can argue the outcome of one or more going into Chapter 11 bankruptcy. But these things are inarguable. The union contracts will be gone and with them the hope for revitalizing the union movement. That will be the sweetest victory long hoped worked for by Republicans for decades. More importantly, it will accelerate the race to the bottom for all wage earners in our country. Make no mistake, this is a source of the major divide in the current debate. And when the infrastructure debate occurs next year there will be a big push for the projects not to be built with people in unions or earning union prevailing wages.

I need to digress a little by mentioning two points. Labor costs are not the issue. The companies and the UAW agree that labor costs represent only about 10% of the cost of a new car. That said, the average UAW wage is not $70. It is about $30 and is only about $5 higher than the wages paid by foreign transplants. The real differences are these. UAW health coverage is better than in the transplants and union retirees are not thrown onto the national trash heap in their old age. Those things do cost more money and are built into the cost structure of the big three. But consider the alternative. If bankruptcy occurs and the pension obligations are dissolve, the Pension Benefit Guarantee Corporation will have to pick them up. PBGC payments are lower and since it is currently underfunded, taxpayers will end up having to cough up more money.

The second point relates to Michael Moore's proposal to just buy up all their stock. Yes, that could be done for about $4 billion. But then what? The companies would still need the money they are currently asking for to service their current debt and continue operating. Yes, it would enable the Government to put in new management, but that can already be done under the current proposals by establishing an oversight board with the power to remove existing personnel.

There are those in Congress who are saying "no" to this proposal and will oppose President Obama's ambitious agenda to put this country back to work. Many of them simply do not believe that is the role of government. Others believe there is political advantage for them in this position. Generally, they will oppose anything.

There is another group will only support "supply side" actions. They cling to the failed dogma made popular by Reagan but still largely accepted. It holds the only way to increase national wealth is to cut taxes, which will spur economic growth and benefit all eventually. After almost thirty years of following this prescription the results are plain to see. The gap between the rich and the middle class has widened and the continual underfunding of public works has not only killed and endangered people, but is crippling our productivity with bad roads, clogged ports, drowned cities, and an electric grid and telecommunications system far behind many of our competitors.

The financial bailout was the most recent example of supply side at work, this time on steroids. Under the threat of impending doom we passed a law designed to pump money into the top of the economic pyramid in the expectation that it would trickle down and free up credit for average people. We're still waiting for that promised result. We have seen these institutions hoard the money or use it to acquire competitors. It is time to blow the whistle on the supply siders and say no more. Moving forward we need to inject money directly where it is needed.

The auto industry presents us with the opportunity to change course and lay the groundwork for future actions. Loans to these companies will do several things. It will directly benefit the current employees and retirees. It will give the government leverage to make the companies maintain their new focus on more energy efficient vehicles. This is especially important with oil prices declining since consumer memories have historically been short. It will be a leverage point for building a domestic industry that leads the world in alternative fuel vehicles. Lastly, the inevitable disruptions cause by bankruptcy of the companies which could accelerate a slide into a depression would be avoided.

Hamdan Released- Even Bush Knows The Gig Is Up

2008-11-25T10:38:00.001-07:00

As first reported last night and confirmed this morning Salim Hamdan has been flown back to Yemen. There was considerable concern that Bush would continue to hod him in Guantanamo even after he served his sentence but it seems that even Bush understands there are limits to his outrageous conduct.

Hamdan has been imprisoned in Guantanamo for seven years. He was the first to actually be tried by a Military tribunal. But the tribunal refused to convict him of most of the spurious charges against him, convicting him of only one count and, most importantly, sentencing him only to time served plus five months. This was widely seen as a rebuke to the prosecutors. But at the time, there was concern that Bush would continue to hold him past his sentence, based on his asserted authority to hold enemy combatants for the duration of the so-called war on Terror.

Well, for once Bush has thrown in the towel.

What was Hamdan's big crime? He worked as a driver for Osama bin Laden for a while. Now let's put this crime in perspective. Hitler had a driver named Erich Kempka. Unlike Kempka who was a high ranking SS officer who worked for Hitler for over a decade, Hamdan worked for a couple of years for OBL making $200 a month. Hamdan was a gofer. Kempka was in charge of Hitler's motor pool and was part of his inner circle, to the point that he was one of the men chosen to be with Hitler at the end. Kempka was not charged with anything by the Nuremberg court and, in fact, was called a defense witness in the trial of Martin Bormann.

But for Bush, Hamdan was one of the "worst of the worst." A man so dangerous that he had to be held in the hellhole of Guantanamo for seven years and eventually tried for things that are only crimes in Bushworld. This notwithstanding the fact that

Hamdan had maintained his innocence of war crimes throughout his detention. Then, during sentencing, he apologized for any pain caused by his work as bin Laden's $200-a-month driver in Afghanistan.

He said he worked for money, not ideology.

The sentence of the court meant that Hamdan was to be released on December 27, 2008, two days after Christmas. The "leniency" of this sentence did not go over well with the Department of Defense.

Defense officials had argued they were under no obligation to free him after his sentence. Under a post 9/11 detention doctrine set up by the United States, the Bush administration argued that it could hold enemy combatants indefinitely, even after time served for war crimes.

Since then they have reconsidered the absurdity of that position. The outrage of holding people without trial is bad enough. But to assert that prisoners can continue to be held even after they have been tried and served any sentence they are given is so far beyond the pale that even these bozos had to relent.

Over five hundred Guantanamo prisoners have been released without charges. Of the 250 being held another sixty have been cleared for release. And just earlier this week, a District Court overturned the "enemy combatant" of Boumediene and four other prisoners, ordering their release "forthwith." We'll see if the decision to finally release Hamdan indicates that Bush will accede to the court's ruling in the Boumediene case or whether he'll drag that case out till he slinks away.

The Guantanamo Decision-A Stark Truth Revealed

2008-11-21T12:38:00.006-07:00

November 20, 2008 was a long awaited but still historic day. For the first time, a US Court has heard and decided on Habeas Corpus petitions of Guantanamo prisoners. Guess what? It held that Bush had no evidence to detain five of the six men in question.

This decision, Boumediene v Bush, reveals again, in starkest terms, the total injustice that has been done in our names in the so-called War on Terror. Not only have almost five hundred prisoners who Rumsfeld once called the "worst of the worst" already been released without charges, but here we have an impartial court saying that five of the ones that Bush has refused to release are being held illegally. The evidence against them is so flimsy that it does not justify holding them for trial.

In this ruling the Bush Administration was ordered to release five Algerians who have been held at Guantanamo for seven years. Unlike so many other cases in the past that have involved interpretations of the Constitution and various statutes, this case was decided on the facts. In these Habeas Corpus cases, the question was not whether these prisoners were guilty or innocent, but rather whether there was sufficient evidence to justify their continued detention until they could be tried at a later date. The court's decision is a resounding "no."

Lakhdar Boumediene was one of the six prisoners who filed habeas corpus petitions. Earlier this year the Supreme Court ruled that he had a right to seek Habeas Corpus review of his detention even though he had been declared an "enemy Combatant" under the Military Commissions Act. That decision, which was the latest in a string of defeats for Bush, was hailed by all people who believe in our Constitution and who seek a return to long held American values. Six months later Boumediene and the others received their day in court and the injustice of their detention was laid bare for the world to see. Following is some background and the gist of the court's ruling.

The six prisoners are Algerians who were arrested in Bosnia for an alleged plot to blow up the US embassy. A Bosnian court looked at the charges and threw the case out. That didn't stop the US from arresting them on the same charges. Eventually, even Bush dropped the Embassy charges and held them instead on charges that they were planning on traveling to Afghanistan to fight the US.

The Government blew a cavern full of smoke in this case, introducing 650 pages of exhibits and 53 pages of narrative. To counter this barrage of baloney, the prisoners presented 1650 exhibits and over 200 pages of narrative. The question before the court was simply whether these men could be classified as "enemy combatants," as defined by the MCA. The standard of proof was as low as you can go. It's called "preponderance of the evidence" and is essentially a 51% to 49% test. Is it more likely than not that they are enemy combatants?

When all was said and done, Judge Leon said the whole case boiled down to the evidence of one unnamed source contained in a single classified document. The whole case was built on what this one person said. Since no person, let alone a judge, can simply take any statement at face value, Judge Leon tried to look further into the veracity of this witness and the truthfulness of what he said. Analyzing the entire record, the Judge concluded that there was no evidence presented regarding the credibility of the witness or the reliability of what he said. Beyond that, there was no other evidence corroborating the allegation that the prisoners had any plan to fight in Afghanistan.

Think about that a minute. Five people were imprisoned in the hellhole of Guantanamo for more than seven years on the testimony of a single unnamed person, whose truthfulness could not be verified and without a single bit of evidence to corroborate what he said. To call this a miscarriage of justice is a gross understatement. And to put the travesty of Bush's concept of justice into starker relief, one of his Military Commissions had already held that this was sufficient evidence to continue the imprisonment of these men. If anyone doubted that the commissions are little more than kangaroo courts this case should resolve those doubts.

Judge Leon was sufficiently moved by the injustice done these men that he asked the government not to appeal the case. As noted by SCOTUSBLOG,

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

Senior leaders of the government, he went on, will have “more than enough opportunity” to test the novel issues at stake in defending against an appeal of his ruling in the case of Bensayah. He said he was appealing to those leaders “to end this process” for the five.

Amen to that.

There continues to be handwringing in some quarters about the closing of Guantanamo, particularly what to do with detainees. This case again demonstrates that the detainee issue is overblown. Almost five hundred have already been released. To the extent the case against these five is any indication, it is probable that there are only a handful of remaining prisoners who should continue to be held and prosecuted.

Palin's Alaska - A State Unlike Any Other

2008-09-10T13:31:00.001-06:00

[Before beginning, I give you these numbers - 1841, 1850, 1865, 1881, 1901, 1923, 1945, 1963.]

Many people have pointed out that the closest thing to foreign policy experience for Sarah Palin is when she eats Belgian Waffles at the Wasilla International House of Pancakes. Similarly, it has been noted that she has zero experience in the domestic issues facing the Federal government. But there is something arguably worse. She hasn't had the kind of experience faced by most State governors.

Sarah governs a state like no other. When you put aside all the little hot button issues, most decisions that state governors and legislatures face revolve around two sets of questions. First is the question of revenue. Who should be taxed and how much should they be taxed? Second is the question of expenditures. What programs should get the money and how much should they get? Well, when it comes to the first set of questions, the most difficult ones, Sarah's experience leaves her uniquely unqualified to be the governor of any other state let alone, heaven forbid, the United States.

Here is the resource book published by Alaska's Department of Revenue in the fall of 2007. It shows actual revenues and expenditures for 2007 and projections for 2008 and 2009. Let's look at the 2008 numbers.

For 2008 Alaska plans on collecting $13.2 billion. Half of that amount, $6.6 billion, comes from oil taxes. $3 billion comes from income on all the investment the state has. $2.5 Billion comes from the Federal government. The smallest category, $1.1 billion, comes from licenses, fees, royalties and taxes on mineral companies and the like.

Of the many things that jump out is the $3 Billion in investment income. The United States has almost $10 Trillion dollars in outstanding debt that will require us to pay more than $450 billion in interest on the national debt in 2008. The deficit for just this year is over $400 billion. And of that amount $2.5 billion is money that we borrowed so that we could give it to Alaska, a State that is so awash in cash that it earns $3 billion on its investments. The mind is past boggling.

Next, look at the oil revenue, $6.6 billion. This number is actually much lower than the actual number of $8.9 billion for 2008. That number grew so much because the Alaska's taxes are tied to the price of oil. As oil prices go up, oil company revenues go up and Alaska demands a piece of the action. Sounds an awful lot like a windfall profits tax, doesn't it. That's the kind of tax Obama wants to enact but Mccain opposes. McCain argues that such a tax would stifle new exploration. Of course, we know that is total baloney as made clear by the Alaska experience. Alaska's profits tax on oil hasn't stopped the oil companies from exploring in Alaska. I'd love to see Palin explain why something so good for Alaska is bad for the United States. But I digress.

The main thing this budget reveals is that Palin has never had to face the hard choices about who to tax and how much to tax that are faced in the other states and magnified a thousand fold for the Federal government. She has no knowledge of the complexities of the income tax code. Her experience has not exposed her to the concept of an individual income tax structure that is supposed to be progressive, one in which the tax burden is the largest on those most able to bear it. The Republicans have done their best since 1980 to whittle away at this concept, but it is an idea that is totally foreign to Alaska.

She doesn't have any exposure to the social security and medicare tax system and how they are integral to the welfare of our seniors. She doesn't really know anything about the corporate tax system, which has a marginal rate of 35% but results in an effective tax rate that is far less and in which two thirds of corporations pay no taxes

When you leave the foreign affairs realm, many of the most contentious debates a President face involve the budget. Where to get the money for Head Start, health care, education, environmental protection and on and on. No one wants to pay taxes, but someone must. Sarah lives in a state that is riding the type of gravy train that has immunized her from having to face these tough choices. It is hard to imagine anyone less qualified to serve as President of the United States.

Oh, yes, the numbers at the beginning. Those are the years in which a President has died in office. Eight Presidents have died in office. Every one of those events has been tragic. That tragedy is compounded immeasurably if the Vice President is unqualified to take the reins of government.

Court Rules That No Fly List Can Be Challenged

2008-08-20T09:58:00.001-06:00

The Ninth Circuit ruled that a person can challenge the inclusion of their name on the government's no fly list. Sounds pretty obvious that you should have that right, but that isn't the Bush Administration's position.

The case is Ibrahim v Department of Homeland Security and it was decided by a two to one decision of the Ninth Circuit Court if Appeals.

Ms. Ibrahim was a Stanford student on a student visa from Malaysia, who also happens to be a Muslim. When she tried to fly home from San Francisco, she was blocked from boarding the flight, detained and handcuffed in front of her fourteen year old daughter, and taken to a police station. Two hours later she was released and she was permitted to fly home the following day after being subjected to "enhanced searches."

The suit was filed against numerous agencies and individuals alleging a range of violations, from Constitutional due process to violations of the Administrative Procedures Act. Basically all of her claims were denied in the District Court, which is the first level trial court in the Federal system. The Court of Appeals reversed two critical aspects of the trial court's decision. First, it held that the trial court did have jurisdiction to here the issue of whether her name was wrongly placed on the list. Secondly the court held she could pursue a claim against a TSA employee, John Bondanella, in his personal capacity, for his actions in connection with her detention.

This is a complex case involving questions of jurisdiction and statutory construction. (The Constitutional issues were not addressed.) The government was arguing that any challenges of this sort could only be filed in an appeals court. But the Ninth Circuit disagreed, holding that the statutory provision in question, 49 USC 46110, did not apply in this case because the no fly list is maintained by the Terrorist Screening Center, which is part of the FBI and therefore not covered by that statutory provision. Beyond the technical question, which is a close call, the Court looked at the practicalities of the case.

Our interpretation of section 46110 is consistent not merely with the statutory language but with common sense as well. Just how would an appellate court review the agency’s decision to put a particular name on the list? There was no hearing
before an administrative law judge; there was no notice-and- comment procedure. For all we know, there is no administrative record of any sort for us to review. See Florence, supra, at 2155-59 (the process of maintaining the No-Fly List is opaque). So if any court is going to review the government’s decision to put Ibrahim’s name on the No-Fly List, it makes sense that it be a court with the ability to take evidence.

It remains to be seen what impact this decision will have and whether it will be appealed. But is once again puts at issue the entire question of whether there should even be these kinds of lists and if they are to be maintained how can it be done in a way reasonably consistent with civil liberties.

I believe a no fly list makes no sense. If someone is a real threat based on real evidence they should be investigated and prosecuted. If there is no evidence of wrongdoing they should be free to conduct their affairs like any other citizen. If the authorities have reason to believe someone is going to bomb a plane, they can be detained and prosecuted. But having a list of hundreds of thousands of names of people who might have talked to someone who talked to someone who read a book about terrorism is idiotic. It not only abuses the rights of innocent people but also diverts recourses from meaningful activity. It is all done in the interest of creating an illusion of security, nothing more.

Three More "Worst Of The Worst" Are Freed, With An Orwellian Explanation

2008-07-30T16:20:00.002-06:00

The Department of Defense announced today that three more Guantanamo detainees have been released. We don't know their names but one was sent to Afghanistan, another to the UAE, and the third to Qatar. These are three more of the five hundred prisoners who Donald rumsfeld labelled as the "worst of the worst" who have been released from Guantanamo without charges. According to DoD there are 265 left to go.

This announcement is good news for these prisoners but what is really remarkable is the language used by DoD in making the announcement. First, there is this,

These detainees were determined to be eligible for transfer following a comprehensive series of review processes.

Comprehensive review process? It's been six years. We prosecuted and won victory in WWII in three and a half years but it takes six years to finally figure out these poor schmucks shouldn't be in custody. If it gets any more comprehensive they'll be sending these guys home with walkers.

But not to rest on its laurels, the release goes on,

The transfer is a demonstration of the United States’ desire not to hold detainees any longer than necessary. It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing — an unprecedented step in the history of warfare.

"No longer than necessary?" Who are they kidding? Everything they knew about these guys was made known soon after their capture. If they are like the typical Guantanamo detainee they were not captured on a battlefield. They were guys who were turned over by bounty hunting Pakistanis and Afghanis looking for a quick buck. Most of them were foreigners going to schools or passing through, and some were locals against whom Afghanis had familial or clan grudges.

But especially rich is the crowing about this wonderful process, which is claimed to be unprecedented in the annals warfare. Damn right it is unprecedented. We pay bounty hunters to round up people and gin up some "evidence" about their supposed misdeeds. We hold and torture them for a while before shipping them to Guantanamo where they get more of the same. They are isolated for long periods, interrogated endlessly, and after six years we say "OOps," you are no longer a threat.

The press release goes on to say that another 65 of the remaining 265 prisoners are eligible for release. And so far people have been released to the following countries,

Albania, Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, France, Great Britain, Iran, Iraq, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Russia, Saudi Arabia, Qatar, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom, United Arab Emirates, and Yemen.

What about the ones not yet cleared for release. Well, one is a guy named Hamdan who is currently on trial. Unlike the other 500, he actually had a connection to Al Qaeda, but his "crime" seems a little tenuous. He was nabbed for having been Osama bin Laden's driver. Here at the ACLU's website is an update on what happened at the trial today. Actually, they watched a movies prepared by the DoD which depicts the evils of AQ, but doesn't say anything about the actual case that is being tried.

If these prosecutors had any sense of history they would understand the true pathos and tragedy of this case against OBL's driver. In 1945 the US took the lead in prosecuting the surviving members of the genocidal Nazi regime. Anything OBL has done pales in comparison with what Hitler and his minions did. There was one person, though, who was not prosecuted — he was Hitler's driver. That man's name was Erich Kempka who, in addition to being Hitler's driver, was also an SS officer who was with Hitler from 1934 all the way to the last day in the bunker. Not only was he not tried at Nuremberg, he was a witness for the defense of Martin Bormann

In the words of the DoD press release our actions in Guantanamo truly are "unprecedented."

Ninth Circuit: Supreme Court Handgun Case Doesn't Cover All Weapons

2008-07-17T14:01:00.003-06:00

The Ninth Circuit issued an unpublished decision in the case U.S. v Gilbert on July 15 holding that the recent Supreme Court Second Amendment case does not give people the right to own automatic weapons and sawed off rifles. The court stated

The Supreme Court’s recent decision in District of Columbia v. Heller, 554 U.S. ___ (2008), holding that the Second Amendment protects a limited individual right to possess a firearm–unconnected with service in a militia–does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., Slip. Op. at 27.

Since the Supreme Court decided the Heller case there has been much speculation regarding the scope of the ruling. Would this open the flood gates to unrestricted ownership of handguns and permit the ownership other types of weapons, like assault rifles. The Ninth Circuit opinion says that it does not.

The facts in Gilbert are straight forward. Gilbert was charged with ten counts involving owning a machine gun, owning unregistered firearms, and being a felon in possesion of a firearm. He said he knowingly bought some of the weapons from undercover agents because he wants to challenge the Constitutionality of the gun laws. At the end of the trial the jury was given the following instruction,

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

Gilbert appealed his conviction arguing that the jury instruction violated his Second Amendment rights.

The Ninth Circuit did not buy his argument and, as noted above, said that the Supreme Court's Heller decision articulates a limited individual right to possess a firearm that does not extend to machine guns, short barreled rifles, or to the ownership of weapons by felons.

Unfortunately, the Gilbert opinion is very short and does not include an explanation of why the court read the Heller decision in this limited way. But, beyond the limitations of the ruling itself, there is ample language in the Heller case to support this reading of the decision.

Like any case, the Supreme Court's Heller decision itself was limited to the facts of the case, which was the ownership of a handgun by a non-felon, who had not been judged mentally incompetent. However, there was much discussion in the dicta of the opinion where the majority not only says this is a limited right but also discusses areas where government regulation would not conflict with the Second Amendment.

Here is an excerpt from an article I wrote discussing the limitations in the Heller opinion.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it's longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have lim-
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.

The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

For instance, it doesn't guarantee the right to carry concealed weapons.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

It remains to be seen how the Supreme Court ultimately refines the limits of the Heller decision. But the lower courts seem to be reading it narrowly and following the limitations that are suggested in the ruling. And lest anyone think this limited approach has only appeared in the so-called "liberal" Ninth Circuit, District Court decisions in Missouri, Johnson v U.S., and Louisiana, U.S. v Dorosan, have reached the same conclusion.

What does all of this mean for Obama and other Democrats in the upcoming election? The Supreme Court has taken off the table one of the most divisive issues that has bedeviled Democrats in many decades of elections. For decades, the NRA has used the "right to bear arms" as a major fund raising tool and rallying cry. They have been able to successfully attack sensible gun control legislation by using the absolutist argument that Democrats want to totally disarm all Americans. They will not be able to do so any longer.

The Supreme Court has decided there is an individual right to own handguns. That decision, right or wrong, will be with us for a long time. Moving forward, states and cities cannot enact laws that impose a complete ban on handgun ownership. Beyond that, however, a conservative majority of the Court, in an opinion written by Scalia, has signaled its willingness to accept most forms of gun regulation currently on the books, and the lower courts are already adopting that position.

Scalia, the darling of the NRA, has said that guns can be regulated. The Second Amendment right to own a gun does not extend any person, regardless of their background, it does not mean that any type of gun can be owned, and it does not mean a person can take a gun anywhere they wish.

The NRA won its Second Amendment battle but it will prove to be a pyrrhic victory. A powerful fundraising and campaign tool has been taken away from them. They can no longer threaten that guns will be taken away from law abiding citizens if Democrats are elected. That issue has been decided. The issue left on the table is whether we can have reasonable gun control legislation designed to protect the health, safety and welfare of our communities. As the NRA finds itself defending gun ownership by felons, possession of automatic weapons, tanks and grenade launchers, and the carrying of weapons near schools it will find itself increasingly associated with the most lunatic fringe of the movement with no Scalia or Second Amendment to fall back on.

From this point on the discussion will shift to the reasonableness of specific types of gun control. Those are arguments that progressives can win. But we still need to elect Obama and a strongly Democratic Senate to ensure that the courts continue to interpret Heller in a limited manner.

(I do recognize that Heller only applies to Federal jurisdictions and the Court has yet to rule on Second Amendment incorporation, which would make it applicable to the states. We have not had an incorporation case in a long time so that should prove interesting. While there are some peculiarities to the Second, in the end I'd be surprised if it is not made applicable to the states.)

Crossposted from docudharma

The Gun Control Decision Is Good For Obama And Democrats

2008-06-26T12:46:00.005-06:00

Today, the Supreme Court issued a decision in District of Columbia v Heller striking down the District of Columbia ban on hand gun ownership. Contrary to what some may think, the world has not been turned on its head, except that a rallying cry for the NRA and other forces that have used gun control as a wedge issue against Democrats for decades has been partially neutered.

The Court held that the second amendment right to bear arms is an individual, not just a collective right associated with having a state militia. But, it is still a limited right and is not totally disconnected from the concept of a militia. The court basically held that at the time of the founding the weapons that people had for personal protection are the same weapons they brought to their service in the militia. It is those weapons that the court says are covered by the Amendment.

This decision makes clear that the court is not invalidating all gun control laws. It does not mean that licensing requirements are invalid. It does not mean that people have the right to own artillery, tanks, sawed off shotguns and M-16s. It also doesn't mean people can carry concealed weapons or take weapons to school. Finally, felons and people with mental problems can also be prohibited from holding weapons.

This opinion was written by Scalia, the republican icon of the ideal Justice. Because his opinion would validate most of the types of gun control legislation on the books today, it steals the thunder from the gun lobby about gun rights in the US today. As such, It will be a net positive for Obama and other Democrats.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it's longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

For instance, it doesn't guarantee the right to carry concealed weapons.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

Finally, the decision leaves open the question of the legality of registration laws.

Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the Dis- trict’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.

Basically, the Court is saying that it is impermissible to have an outright ban on weapons for use in the home for personal protection. Agree or disagree, but that is a limited ruling. Contrary to what Second amendment advocates believe, Scalia makes clear that the government can restrict who can own weapons, what type of weapons are protected and where and how those weapons can be carried. That is really what most gun control advocates have been wishing for all these years. i think it takes away the Second Amendment as a wedge issue, and that can only help Democrats.

Five Reasons Why FISA Bill May be Worse Than You Think

2008-06-21T13:53:00.004-06:00

The House passed FISA bill is bad legislation for many reasons, but these are the five biggest problems I see.

Politically Unnecessary

When addressing a bill with so many substantive issues I hate to start out with the politics of the matter but in this case it seems necessary. There can be no doubt the Democrats who support this bill do so in the belief that their support will protect them from charges they are soft on terrorism. That belief is misplaced. In the upcoming election the only card the Republicans have to play is the fear card. Every Democrat will have to face the "soft on terrorism" charge irrespective of how they vote on this or any other piece of legislation. Why? Because the fear card is premised on a lie, and that lie will be repeated over and over again.

The only way to successfully defeat the fearmongers is to attack them straight on. Tell the voters that the Republicans have made us less safe. They are pursuing policies that create enemies. They have depleted our blood and treasure and put our country at risk. They seek an imperial form of government that ignores all of our civil liberties. They aren't just after terrorists, they are after every person who dares to disagree with them. And they have besmirched the sacrifice of our troops by trashing the Constitution for which those troops have fought and bled and died.

Makes A Mockery Of Judicial Oversight

This bill contains a patina of judicial oversight that is so thin that it would be laughable were the subject matter not so serious. The ACLU summarized it this way

This bill allows for mass and untargeted surveillance of Americans’ communications. The court review is mere window-dressing – all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole – ‘exigent’ circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all."

You read that right. They can spy on whoever they wish without telling a court who they are spying on, why they are spying on them and how they are spying on them.

This so-called judicial review is so weak that it may well not meet the requirements of the Fourth Amendment, but that is a discussion for another day.

Bush's Claims Of Unlimited Power To Ignore FISA Is Untouched

One of the most laughable parts of the bill the so - called "exclusivity " provision. The existing FISA already says that FISA is the exclusive authority for the conduct of foreign surveillance. So what does this bill do? It adopts new language that says- well, the same thing. Only this time Congress says it really means it. It does make one thing even clearer than before. It says that Bush can't rely on any other law to get around FISA unless that law specifically amends FISA. This is designed to prevent a President from arguing, as Bush did, that a law such as the Authorization For The Use Of Military Force had the effect of overriding FISA. But since that was a weak argument when first asserted by Bush, there is little doubt he would find some other lame argument to read his way around this "exclusivity language."

Moreover, this "exclusivity" language doesn't even touch Bush's main argument. Bush says that his "Commander in Chief" powers under Article II of the Constitution override FISA or any other law he finds to be inconvenient. He has used that claim of authority to torture people and ignore the Geneva Conventions and our own laws governing the treatment of prisoners, to hold people indefinitely without charges, and to wire tap people at his whim. The legal opinions he relies on make clear that Congress cannot pass a law that restricts his powers.

This Article II issue can only be answered by the Courts. As long as Congress keeps the issue from going to the courts, he will continue to assert his power with impunity.

Turns Qwest Into A Sucker

Not all of the telecom companies gave in to Bush's demand for access to their customer's calls. Qwest, on the advice of counsel, declined. They did not accept Bush's assertions that the request was legal and told Bush to get a court order. Qwest later said that it was penalized by the Bush Administrationfor its decision to respect the Constitution. And now the Congress will add salt to the wound by immunizing the other companies that acceded to Bush's lawlessness. Moving forward, company counsel will have a much harder time persuading their management to resist the illegal demand of an administration bent on lawbreaking.

Immunity May Violate The Fifth Amendment

There has been little discussion of whether the telecom immunity provision is Constitutional. Some comments have discussed the prohibition against ex post facto laws and correctly noted that this provision is not applicable. There is, however, another provision that could invalidate the immunity language. The Fifth Amendment prohibits the taking of private property without just compensation. There is at least a possibility that the immunity provision violates this guarantee for the following reasons.

When people think of the Fifth Amendment taking provision they usually focus on real estate that is condemned by the government. But the property interests it guarantees are much broader than that. For over one hundred years, at least since Pritchard v Norton, the Supreme Court has recognized that a law suit is property. As such, can be protected by the Fifth Amendment. That is what is at stake here.

FISA provides that law suits can be brought against companies or other people who violate FISA and if the plaintiffs are successful, they can recover civil damages of up to $1,000 for each violation plus punitive damages. These are the law suits that will be terminated if the immunity provision is enacted.

To establish a Fifth Amendment violation, the plaintiffs would have to prove that their legal claims had already vested. To do so, they will have to overcome the hurdle of a Circuit Court decision in the forties, Fisch v General Motors, which refused to find an illegal taking when Congress enacted amendments to the Fair Labor Standards Act that nullified the claims of some workers. But that case is distinguishable from this one and the issue has never been ruled on by the Supreme Court. Here is an article that discusses the matter in greater detail.

If this immunity provision is enacted we may get a chance to see whether a court finds it to be an unconstitutional taking. But the very specter of that possibility should have given the House pause as it passed the bill. While I don't really hold out any hope that this bill will be changed or blocked in the Senate, my heart's cockles would be warmed if I were wrong.

Bush Squeals When Times Pokes Him On GI Bill

2008-05-28T07:23:00.001-06:00

The New York Times hit a home run when it exposed Bush's mendacity on Jim Webb's GI bill causing Bush to squeal like a stuck pig. It all started with this New York Times editorial which nails Bush's opposition to Webb's bill with some biting but all to accurate commentary.

He is wrong, but at least he is consistent. Having saddled the military with a botched, unwinnable war, having squandered soldiers’ lives and failed them in so many ways, the commander in chief now resists giving the troops a chance at better futures out of uniform. He does this on the ground that the bill is too generous and may discourage re-enlistment, further weakening the military he has done so much to break.

The pain of this truth was too much for Bush, causing him to issue a White House Statement that reads like the squirming of an emperor who has finally been called out for having no clothes.

Once again, the New York Times Editorial Board doesn't let the facts get in the way of expressing its vitriolic opinions - no matter how misleading they may be.

In today's editorial, "Mr. Bush and the GI Bill", the New York Times irresponsibly distorts President Bush's strong commitment to strengthening and expanding support for America's service members and their families.

Really? The Times is misleading? This from the man who lied this country into a war and has governed by sowing fear for the last eight years. And Bush's commitment to service members? His only commitment has been to continue sending them into battle in a tragically conceived and pitifully executed war for repeated tours, to cut VA funding, to conceal their sacrifices by limiting press coverage, and by stressing our military capabilities to the breaking point.

So what is it about the Webb Bill that is so objectionable to Bush? As summarized by the Times,

Their bill would pay full tuition and other expenses at a four-year public university for veterans who served in the military for at least three years since 9/11.

At that level, the new GI Bill would be as generous as the one enacted for the veterans of World War II, which soon became known as one of the most successful benefits programs — one of the soundest investments in human potential — in the nation’s history.

In Bushworld this type of benefit is unacceptable and anyone who says otherwise is a vitriolic bleeding heart. But why is that so? According to Bush, the bill is fatally flawed because it does not provide to the transferability of veterans benefits and those benefits are not based on length of service.. I'm not kidding.

This is how Bush characterized the type of Bill he wants.

There are several GI bill proposals under consideration in both the House and Senate. The Department of Defense has specific concerns about legislation sponsored by Senator Webb because it lacks transferability and could negatively impact military retention.

The President specifically supports the GI Bill legislation expansion proposed by Senators Graham, Burr, and McCain because it allows for the transferability of education benefits and calibrates an increase in education benefits to time in the service.

Give me a break. GI Bill benefits have never been transferable. If Bush wants Congress to revisit the entire concept behind veterans benefits to determine if transferability is appropriate, fine. But that is no reason to oppose the increase in educational benefit. The length of service argument is equally lame. Benefits have always been based on meeting a minimum service requirement. Period. There are re-enlistment bonuses and other incentives to encourage soldiers to expend their tours of duty.

Bush knows he is in a politically and morally untenable position because he can't discuss his real reason for opposing this legislation. He's really afraid that these benefits will be paid for with a tax increase. Perish the thought. And, horror of horrors, the increase will fall on the Bush Protected Class.

The bill passed the House with a surtax on the wealthy, in the form of a 1/2 percent tax on incomes over $500,000 and over $1 million for joint filers. This is referred to as a "Patriot's Premium" by Democrats, but has incurred the predictable wrath of Republicans.

"Raising taxes is Washington's easy way out all the time," said House Minority Leader John Boehner, R-Ohio. "And I'm opposed to raising taxes."

What Boehner and his merry band of brain dead bozos fail to acknowledge is that by not supporting a tax hike now they are shoving a new tax burden on our children and grandchildren, but that's another story.

The only formal veto threat on this bill came from the Office of Management and Budget.

The White House this week issued a veto threat against the overall measure, singling out the tax increase to pay for veterans benefits as a top reason. “The president has been clear that tax increases are unacceptable,” the Office of Management and Budget said in a statement.

So what is it? What are Bush's real objections? The transferability and retention arguments are beyond lame, even for him. The only reason that is consistent with everything this administration stands for is Bush's consistent effort to reduce taxes on his protected class. Nothing else makes sense.

Now Bush may be saved yet. The Senate passe G I Bill does not include the House passed surtax. Senator Webb has said he would support the tax but there is no certainty that enough Senators will agree. They could well cave in to pressure, the type that has rendered the "world's greatest deliberative body" into a shadow of its former self. But if both Houses pass a bill with the tax provision and Bush vetoes it, nobody should be under any misimpression as to why the veto occurred.

The Truth About The Military Commissions Laid Bare at Guantanamo

2008-04-29T13:49:00.000-06:00

Yesterday, Monday April 28, 2008, the man who used to be the Chief Prosecutor at Guantanamo gave sworn testimony that puts the lie to the farce of the of the Military Commissions AcT (MCA) proceedings being used to try alleged terrorists. Col. Morris Davis told the tribunal hearing the case of Salim Ahmed Hamdan that

Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

(Note, there is no transcript available at this time.)

Not only did Davis say that the outcome of these proceeding was rigged but that the motivation for even having the trials was political.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis also addressed the use of so-called "evidence" extracted by the use of torture.

He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

Col. Davis' statements in court were more specific and damning than the reasons he gave for resigning last October, as outlined in an op-ed in the L. A. Times. He articulated three reasons. First, Susan Crawford, the new person appointed as the convening authority issued orders that removed any pretense of her objectivity in the proceedings. Second, Crawford was undermining any possibility that the proceedings would be viewed as legitimate by the Nation and the world, by insisting on more secrecy than what was needed for national security reasons. Finally, as echoed in his testimony he

resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor -- that was me -- in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes' place in my chain of command.

Subsequently, Col. Davis felt the need to be even more critical of the military commissions. In an article in the Nation after six Guantanamo detainees were charged he talked about the prospect of fair trials by relating the conversation he had with Haynes, which was later covered in his testimony to the tribunal.

Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

This has been a long road to disillusionment for Col. Davis. Before he testified, before the Nation interview, and before his op-ed following his resignation, he wrote an op-ed in the Times defending the treatment of prisoners at Guantanamo and the fairness of the MCA procedures. He summarized by saying,

Guantánamo Bay is a clean, safe and humane place for enemy combatants, and the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes. Even the most vocal critics say they do not want to set terrorists free, but they scorn Guantánamo Bay and military commissions and demand alternatives. The facts show the current alternative is worth keeping.

Four months later, after seeing how the Bush Administration cretins would work to subvert the purpose of the law (though I am not one who ever believed it workable) and further besmirch the principles of the nation he had enough. Though he has already publicized his view regarding the travesty of the MCA proceedings, what he did in the Hamdan trial is different. He swore under oath as to what he knew, had seen and had heard.

It is easy to be cynical about what, if any, effect this testimony will have on the Hamdan trial. But it seems undeniable that sworn testimony from the ex-Chief Prosecutor that challenges the underlying fairness, objectivity and veracity of the proceedings in Guantanamo, conducted under the auspices of the Military Commissions Act, will rightfully give support to all those who have questioned the validity of this process from the outset. Also, it should lay the groundwork for a truth telling session, either by the court or Congress, with Brig. Gen. Thomas W. Hartmann, Deputy Defense Secretary Gordon R. England, and William J. Haynes II. Hopefully, it will also generate political support for the Congress to finally begin holding the people in this administration accountable for the travesties they have committed in our names.

There is one final sad note about all of this. Even if these trial were fair Bush has corrupted the system beyond recognition as pointed out in this quotation from the Nation article,

Says ACLU staff attorney Ben Wizner, "The trial doesn't make a difference. They can hold you there forever until they decide to let you out." The one person to be released from Guantánamo through the judicial process, Australian David Hicks, pleaded guilty. As Wizner wrote in the Los Angeles Times in April 2007, "In an ordinary justice system, the accused must be acquitted to be released. In Guantánamo, the accused must plead guilty to be released."

Berkeley Dean Says Yoo's Actions Don't Warrant Firing

2008-04-11T15:00:00.002-06:00

In an announcement to faculty and students Christopher Edley, Jr. , Dean of the Boalt Hall School of Law at Berkeley said that in his personal opinion the actions of tenured professor Jon Yoo do not rise to the standard that would warrant Yoo's dismissal.

That is not to say that Edley is an apologist for Yoo. In fact, some of his comments are striking. Edley writes,

There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law.

Edley also recognizes the special role that lawyers play in the government.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards. What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter?—provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Notwithstanding his lack of regard for Yoo's work Edley says that the standard for removal is rightfully high, in order to preserve the principles of academic freedom.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

In my mind, the jury has yet to be empaneled on the question of whether Yoo's actions rise to the level of a legal crime. I think there is no doubt he committed grievous moral crimes.

There is one thing the Dean says with which I seriously disagree. Edley writes,

As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

Rumsfeld, Bush and the rest are certainly more culpable than Yoo. But Yoo was more than an advisor. He was the indispensable enabler. Without his "legal" opinions, the abuses would have stopped or not even begun. For that, Yoo deserves his special place among the reviled.

The process of holding Yoo accountable may start with John Conyers hearing in May which has now been expanded to embrace the subject of the Principle's Meetings, where specific torture techniques were planned and approved by Rice, Rumsfeld, Ashcroft , Tenet, and Cheney, on behalf of and with the certain concurrence of Bush.

John Yoo's Torture Memo Is Going To Court

2008-04-09T15:59:00.000-06:00

Lawyers for Ali Saleh Kahlah al-Marri have requested the Fourth Circuit consider the Yoo memorandum in its deliberations on al-Marri's pending appeal. Specifically the lawyers argue that al-Marri was designated an illegal enemy combatant based on the erroneous legal advice contained in the Yoo memorandum and that if the Circuit Court upholds his detention it will be doing so on the basis of advice that even the Department of Justice has rejected.

This developnent is discussed in this Washington Post article and in Scotusblog.com.

The March 14, 2003 Yoo Memorandum has been the subject of much discussion, including this post by Valtin where he publicizes the move by the National Lawyers Guild to have Yoo disbarred. One of the problems that many of us who have reviewed the memorandum have in writing about it that it is such a terrible piece of legal work that it is hard to know where to start.

The memorandum has four parts, but all hinge on the first two parts which are summarized as follows:

In Part I, we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. In Part II, we examine federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly~authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President.

This can be further summarized more succinctly. According to Yoo, The Commander in Chief can take any action he wishes regardless of whether that action would violate any provision of the Constitution or any Statute passed by Congress.

There is only one problem with his conclusion. There is no Supreme Court decision supporting that conclusion. Yoo cites the very few Supreme Court decisions on the subject and none of them say that. There are opinions discussing the breath of the President's powers in waging war, but those cases do not involve direct violations of Constitutional or statutory provisions. They involve questions regarding the President's ability to take an action in the absence of express statutory authority. And even here Yoo's opinion is on shaky ground because of YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952), where the Supreme Court struck down President Truman's attempt to seize steel mills during the Korean war in the absence of Congressional authorization.

Furthermore Yoo knows that his opinion is built on a house of cards. In a clever footnote he states,

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendment simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

We're not saying the Constitution doesn't apply during war time, because the Court has held otherwise. We're just saying that it doesn't apply to the President's actions while he is conducting a war. Nice try John, but no cigar.

In any event, the filing in the al-Marri case is good news because we just might get an early glimpse of an Appeals Court's opinion on Mr. Yoo's handiwork. As reported by the Post,

"The memo makes plain as day that al-Marri was declared an enemy combatant based on discredited legal opinions and for the illegal purpose of abusive interrogations," Jonathan Hafetz, an attorney with the Brennan Center for Justice who represents Marri, said yesterday. Defense attorneys contend that Marri, who is being held at a Navy brig in South Carolina, has been subjected to such interrogation methods as sleep deprivation and being forced to stand in uncomfortable positions for long periods.

Legal "experts" have different views on the issue. Again, as reported by the Post,

"I'm not sure the Yoo memo is of direct assistance to Mr. Marri," said Douglas W. Kmiec, a Pepperdine University law professor who headed the Justice Department's Office of Legal Counsel in the Reagan and first Bush administrations. "The memo primarily concerns aggressive forms of interrogation, not primarily the president's authority to designate individuals as enemy combatants."

But David H. Remes, who represents 16 detainees at Guantanamo Bay, Cuba, said it was "perfectly legitimate for al-Marri's counsel to bring this to the court's attention."

He said: "The detention and treatment of al-Marri rest on the premise that as an enemy combatant he enjoys no constitutional protections. If the administration has repudiated the memo supporting that premise, then the government's justification for holding al-Marri as an enemy combatant crumbles."

I would love to see a court react directly to the Yoo memorandum, or even just give it the back of their hand in some footnote or dicta somewhere. I suspect this will probably not be that case, but hope springs eternal.

Yoo Says the Fourth Amendment Does Not Apply To Bush

2008-04-03T15:23:00.001-06:00

John Yoo's damage to our Constitution and the nation it created is even worse than we thought. We now discover that in 2001 he told BushCo that they were free to violate the Fourth Amendment of the Constitution. This little part of that quaint document says,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yoo, on behalf of the Office Of Legal Counsel of the Justice Department, the office that tells DOJ what the law is, advised

Our office recently concluded that the Fourth Amendment had no application to domestic military operations,"

We do not yet have a copy of the 2001 memo. The language above is found in a footnote in Yoo's 2003 memo which holds that Bush can order the torture of anyone as long as he deems it necessary.

The full text of the footnote in the 2003 opinion states,

10 Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, n, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terorist Activities Within the United States at 25 (Oct 23, 200 I).

If U.S.v Verdugo-Urquidez is the opinion relied on by Yoo, that is a slender reed indeed. That opinion involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government.

There is another footnote in the 2003 opinion which is almost comical. Note 11 provides.

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) . 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendmenr:simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

It would not be surprising if we find a similar statement in the Yoo's 2001 regarding the Fourth Amendment, because that is the nature of his "opinions." They are filled with citations, most of which don't support and in many cases contradict the conclusions reached. After thousands of words we are then given conclusory statements to the effect that the President has the power to do whatever he wishes. While the Constitution applies to the President, it just doesn't apply in such a way that would restrict him from doing whatever he, in his sole omnipotent discretion, deems necessary.

The Justice Department has since disavowed both memoranda, they claim. A DOJ spokesman said

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

There is confusion as to whether this memo was the legal underpinning for Bush's so-called Terrorist Surveillance Program.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program. "TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

That sounds like horsepuckey to me since Yoo's memo

was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The importance of this memo, though, is not whether it was used to justify one program or another, or even whether it was subsequently disavowed. Rather, it illustrates the mindset of the lawless group of people running our government. We have seen much evidence of this by their deeds in the last seven years. We know understand better why they have such utter contempt for the Constitution. Their lawyers had seen written in the Document a new Article that says,

"Nothing in this document shall in any way constrain, restrict or inhibit the authority of the 43d President from doing whatever he wishes in his role as Commander in Chief. In that role he shall have all the powers possessed by the King of England prior to the Magna Carta plus such other additional powers as he deems necessary."

My apologies for being so snarky, but the outrage of these guys leaves little room for intelligent discussion. That will come later when we have the actual text of this memo to read.

The President Ordered To Comply With A New Law

2008-01-21T13:38:00.000-07:00

The President has been ordered to comply with a new law providing fuel to people who have been hit hard by this bitter cold winter. OK, the President in this case is Ahmadinejad, not Bush, and the order came from Ayatollah Ali Khamenei, Supreme leader of Iran, not the Supreme Court of the United States, but this news is instructive for us on several levels.

As reported by the Guardian,

At least 64 people are reported to have died after gas supplies were turned off in sub-zero temperatures. The cuts, belying Iran's status as possessor of the world's second biggest natural gas reserves, have provoked public outrage and threaten to turn a mood of rumbling unhappiness into a winter of discontent for Ahmadinejad.

In response to this crisis, Iran's Parliament passed a law, over Ahmadinejad's objection, that allocated almost a billion dollars to pay for the distribution of heating gas to the suffering people. When Ahmadinejad refused to comply with the law, Iran's Supreme Ruler intervened and ordered that the law be obeyed. In issuing the order Ali Khamenie stated,

All legal legislation that has gone through [the required] procedures stipulated in the constitution is binding for all branches of power.

Imagine the concept. All laws that are duly enacted must be carried out by the Executive Branch, and if they are not a supreme authority will step in and order the executive to carry out his responsibiliy.

There is more than a little irony in this story for us in the United States, having endured for seven years a President who believes that he only needs comply with laws he agrees with. There is further irony in the swiftness and decisiveness of the action overriding the Iranian executive's disobedience to the law compared with the dilatory and obsequious behavior of our Supreme Court.

But there is arguably a more important aspect to this story. It seems that when our intelligence community issued a National Intelligence Estimate finding that Iran had stopped it's nuclear weapons program in 2003, it didn't just chill the war mongers in our country. It had the same effect in Iran.

To the surprise on no one who has been paying attention, Ahmadinejad has been spouting his anti-U.S, rhetoric primarily for domestic consumption. By building up the threat of the United States he has been able to rally the populace behind the nationalistic desire for self defense and keep his domestic critics at bay. But the Parliament, the populace , and Khamenie have grown weary of the President and his tactics.

Reports from inside Iran suggest Khamenei has grown increasingly disenchanted with Ahmadinejad's economic record, which has been marked by surging inflation and dramatic rises in basic food and housing costs.

In the past, Khamenie has cautioned against criticism of the President in the interests of national unity in the face of the threat of a US attack. Well, the NIE changed that. The NIE

appeared to ease the threat of American military strikes against Iran's uranium enrichment activities, which Ahmadinejad had used to silence opponents and clamp down on domestic dissent.

The diminishing external threat appears to have emboldened the president's opponents in the run up to parliamentary elections on March 14. It may also have removed the need for Khamenei to keep his displeasure quiet.

Imagine that. A leader trying to use fear as a tool of governance to keep his people cowed. Only in Iran, I guess.

Seriously, it appears the NIE did much more that just force the Bush Administration to scale back it's war talk and fear mongering in the United States. It also seems to have enabled more moderate elements in Iran to find their voice. And almost coincidentally it helped Iranians desperately in need of heating assistance this winter find some relief. Who would have thought that one little intelligence document could do so much.

Another Principled JAG Officer Resigns Over Bush Torture Policy

2007-12-28T07:57:00.000-07:00

Lieutenant Commander Andrew Williams resigned his commission and ended his service as an officer in the Judge Advocate General's Corps because of this Administrations torture policies. In a letter to the Peninsula Gateway explaining his decision, Williams said

There was a time when I served with pride, knowing that by serving with the finest men and women in the country, we were part of an organization whose core values required us to “do the right thing,” and that we were far different from the Soviet Union and its gulags, the Vietcong with their torture camps and a society of surveillance and informers like Nazi Germany.

We were part of the shining light on the hill who didn’t do those things. Sadly, no more.

According to an article in the Peninsula Gateway Williams began his service in 1991 and served aboard the Carrier Nimitz before becoming a reserve officer in 1995. His decision did not come suddenly, but, for him, was finally compelled by the testimony of General Thomas Hartmann, the head of the Military Commissions, who refused to condemn water torture. Specifically, Hartmann refused to say that an enemy who subjected U.S. troops to the practice should be prosecuted for that crimes.

This incredible revelation came out in a Senate Hearing with this exchange between Hartmann and Lindsey Graham,

GRAHAM: You mean you’re not equipped to give a legal opinion as to whether or not Iranian military waterboarding, secret security agents waterboarding downed airmen is a violation of the Geneva Convention?

HARTMANN: I am not prepared to answer that question, Senator.

While the history of this torture and past prosecutions has been detailed before, this is how it was summarized by Commander Williams

Thank you, General Hartmann, for finally admitting the United States is now part of a long tradition of torturers going back to the Inquisition.

In the middle ages, the Inquisition called waterboarding “toca” and used it with great success. In colonial times, it was used by the Dutch East India Company during the Amboyna Massacre of 1623.

Waterboarding was used by the Nazi Gestapo and the feared Japanese Kempeitai. In World War II, our grandfathers had the wisdom to convict Japanese Officer Yukio Asano of waterboarding and other torture practices in 1947, giving him 15 years hard labor.

Waterboarding was practiced by the Khmer Rouge at the infamous Tuol Sleng prison. Most recently, the U.S. Army court martialed a soldier for the practice in 1968 during the Vietnam conflict.

He concluded by saying,

General Hartmann, following orders was not an excuse for anyone put on trial in Nuremberg, and it will not be an excuse for you or your superiors, either.

We all know why the minions in Bushco cannot admit that waterboarding is torture. They have sanctioned this and other forms of torture and know they can be prosecuted for their actions. That is the only reason why clowns like Hartmann get up and make fools of themselves by denying the obvious. That is why they have invented terms like "harsh" and "enhanced" interrogation techniques. They think this Orwellian speak will change the underlying fact that they have broken the law. Even Lindsey Graham, that on and off torture gadfly, has their number on this issue. Speaking about water boarding,

Sen. Graham, a former military judge advocate, has said before that someone doesn’t “have to have a lot of knowledge about the law to understand this technique violates Geneva Convention Common Article Three.”

This sorry episode in American history will come to an end, of that I am sure. I suspect we will not see prosecutions and certainly not of the high officials going up to Bush who authorized this criminal activity. But I do think we will get an accounting. Our dirty laundry must be aired and our nation must resolve never to do this again. There is no defense of this country at the expense of the Constitution. The Constitution is who we are. The moment we forget that we have lost our national soul, the one thing that is worth defending.

As we await the hoped for day of reckoning, we should salute courageous JAG officers like Commander Williams who are refusing to accept these abuses on their watch.

Water Torture, Gonzales, And The Japanese Prisoners We Convicted.

2007-07-24T17:33:00.000-06:00

At his hearing today Alberto Gonzales once again refused to find anything wrong with water boarding and made clear that it certainly wasn't torture. In addition to knowing precious little about the law, Gonzales is also ignorant of the history of water torture. The Senators should have reminded him of the Japanese soldiers convicted by U.S. and other tribunals for using water torture against allied soldiers during WW II.

During his testimony, Gonzales had this to say when asked why the President's July 20th Executive Order did not include water boarding in the list of prohibited acts,

"[S]ome acts are clearly beyond the pale, and that everyone would agree should be prohibited, . . . There are certain other activities where it is not so clear, Senator."

Well Mr. Esteemed Attorney General, I'd like to introduce you to Mssrs. Yuki, Hata, Asano, Kita and Nakamura, just a few of the many Japanese soldiers who were convicted at the end of WWII of the war crime of water boarding.

There is a very comprehensive article on the history of water torture by Evan Wallach entitled, DROP BY DROP: FORGETTING THE HISTORY OF WATER TORTURE IN U.S. COURTS, which details what the U.S. has learned and forgotten, and learned and forgotten again about this this evil form of torture.

But first to the basics. Though it goes by many names such as "water cure," "water boarding," "water torture," and "water rag," the

technique has long been prized by extreme interrogators for its unique combination of severe mental trauma and physical pain with, unlike other methods, a lack of perceivable physical trauma short of autopsy

How do the victims of it feel? From the testimony of CPT Chase Jay Neilson, one of the Dolittle raiders who was captured by the Japanese,

Q: Did the questioners threaten you with any other treatment while you were being questioned?

A: Yes, I was given several types of torture.... I was given what they call the water cure.* * *

Q: What was your sensation when they were pouring water..., what did you physically feel?

A: Well, I felt more or less like I was drowning, just gasping between life and death.

And how did his torturers achieve this effect, this feeling of drowning?

Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I’d get my breath, then they’d start over again.

This is the testimony of Ramon Lavarro, a Philippine lawyer subjected to torture, at the war crimes trial of Sergeant Major Yuki,

Q: And then did he take you back to your room?

A: When Yuki could not get anything out of me he wanted the interpreter to place me down below and I was told by Yuki to take off all my clothes so what I did was to take off my clothes as ordered. I was ordered to lay on a bench and Yuki tied my feet, hands and neck to that bench lying with my face upward. After I was tied to the bench Yuki placed some cloth on my face and then with water from the faucet they poured on me until I became unconscious. He repeated that four or five times.

COL KEELEY: You mean he brought water and poured water down your throat?

A: No sir, on my face, until I became unconscious. We were lying that way with some cloth on my face and then Yuki poured water on my face continuously.

COL KEELEY: And you couldn’t breath?

A: No, I could not and so I for a time lost consciousness. I found my consciousness came back again and found Yuki was sitting on my stomach and then I vomited the water from my stomach and the consciousness came back again for me.

Q: Where did the water come out when he sat on your stomach?

A” From my mouth and all openings of my face...and then Yuki would repeat the same treatment and the same procedure to me until I became unconscious again.

Q: How many times did that happen?

A: Around four or five times from two o’clock up to four o’clock in the afternoon. When I was not able to endure his punishment which I received I told a lie to Yuki....I could not really show anything to Yuki because I was really lying just to stop the torture...

The defendant in this case, Chinsaku Yuki, was convicted and sentenced to life in prison.

Here is a summary of the testimony of American POWs Burton, Armitage, Cash, and Woodall at the trial of their Japanese captors.

The witnesses’ descriptions painted a grim portrait of the treatment meted out to POWs, and of the use of water torture as a primary means of interrogation.

He was turned upside down and water poured up his nose and beaten into unconsciousness.62

...they would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness...63

...they laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air.... They then began pouring water over my face and at times it was almost impossible for me to breath without sucking in water.64

[We] were strapped to stretchers and warm water poured down our nostrils until we were about ready to pass out.65

[They] strapped him to a stretcher and elevated his feet and then poured on his face so
that it was almost impossible for him to get his breath.66

[The victim] was then taken into the corridor, strapped to a stretcher, which was tilted so that his head was toward the floor and feet resting on a nearby sink. Water was then poured down his nose and mouth for about twenty minutes...67

...they stood them on their heads until they almost choked.

There were four japanese defendants in these cases. Hata was convicted and sentenced to twenty-five years in prison. Nakamura received twenty years and Asano and Kita each received fifteen year sentences.

The use of water torture was not unique to the Japanese in WWII. It has a long and sordid history over the centuries and the United States has participated in this gruesome history. But there is a different between our use of this torture in the past versus our use of it under Bush. In the past it was never sanctioned as government policy and americans were prosecuted for using it. Now, under Bush, it is a sanctioned technique that is used without shame or conscience.

During the Philippine Insurrection, the war following the Spanish American War, Americans were awakened to the brutality of the conduct of some our troops against the Philippinos who were called guerillas, or patriots, depending on which side you were on.

The Spanish-American war was remarkably similar to the Iraq war in several key respects. Both wars were sold to the public on the basis of jingoistic propaganda and lies, instigated and/or promoted by the Administration and the press. Both wars were advertised as short military adventures that would be victorious in short order. Both wars metamorphosed from the conflict initially advertised into guerilla campaigns fought by people who viewed the Americans as occupiers. And in both wars, the United States used water torture against its enemy. There is one difference. In the Philippine war there was general, though not universal, public and congressional revulsion against the tactics used and senior officers were held accountable, including a General. In Iraq, the administration sanctioned the use of torture, without naming it so, and specifically embraced the use of water boarding.

As summarized by Evan Wallach

The United States has largely forgotten its adventure in the Philippines, but at the time the U.S. occupation was highly controversial at home, not least, because of allegations of misconduct by American troops. Eventually, courts-martial reached as high as a general officer, left the93 administration facing congressional inquiries, and the public with a sour after taste from its “splendid little war.” One highly publicized aspect of that misconduct was the “water cure.”94

Testifying before Congress, the U.S. Administrator in the Philippines, William Howard Taft (later President and Supreme Court Justice) conceded that the “water cure” had been used as a questioning technique. The testimony coincided with publication of a soldier’s letter home95 boasting of use of the water cure on Filipino insurgents.96

There was ample testimony presented to the Senate Committee regarding the abuses in the Philippines.

Another witness, former Private Edward Norton “...described in one instance where he had assisted in ‘water-curing a native. The man’s mouth, he said, was forced open with a stick and the water poured down his throat. The effect of the treatment was temporary strangulation. In this particular case, he said, the native after receiving the cure delivered up a number of rifles and pistols.104

Another former soldier, First Lieutenant Grover Flint testified he has been a witness to at least twenty applications of the water cure. Flint sated he had never seen anyone die as a result although he had seen a prisoner rendered unconscious, and that “...in some cases where it was given to old men he had seen their teeth fall out.105

Still another ex-enlisted man, L.E. Hallock “...told of the infliction of the cure upon a dozen natives...He said they were captured and tortured in order to secure information of the murder of [an American soldier who was tortured before his death]. When asked the effect of the treatment, he testified that “The stomach would swell up, and in some cases I witnessed blood come from the mouth.”106

Initially, Secretary of War Elihu Root had denied all the allegations of abuse. However, less than two months later, Secretary Root had substantially changed his position. In light of the testimony that had been presented to the Senate Committee, he directed the Judge Advocate General of the Army to take proper steps, and he directed the Army commander in the Philippines that ”... nothing can justify or will be held to justify the use of torture or inhuman conduct of any kind on the part of the American Army. "

Root issued the following directive to the commander of U.S. troops in the Philippines on behalf of president Roosevelt.

The President desires to know in the fullest and most circumstantial manner, all the facts, nothing being concealed and no man being for any reason favored or shielded. For the very reason that the President intends to back up the army in the heartiest fashion in every lawful and legitimate method of doing its work he also intends to see that the most rigorous care is exercised to detect and prevent any cruelty or brutality, and that the men who are guilty thereof are punished. Great as the provocation has been in dealing with foes who habitually resort to treachery, murder and torture against our men, nothing can justify or will be held to justify the use of torture or inhuman conduct of any kind on the part of the American Army.

From that point on water torture was prohibited as a matter of U.S. policy. Yes, there were instances when it was subsequently used by U.S. troops, particularly in Viet Nam, but not with the sanction of the President. That is of course until now. We have a President, Vice President, Attorney General and their many enablers, not the least of which being torture man John Yoo who embrace water torture.

In todays hearing Gonzales was asked a question about the Executive Order, specifically paragraph (E), which enumerates certain prohibited practices.

(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or

When asked why the order could enumerate these odious practices and leave water boarding unmentioned, he made clear it was not an oversight. According to him, water torture, a practice that the United States has condemned, a practice that we have tried and convicted enemy soldiers for and sentenced them to up to life in prison, is not "clearly beyond the pale." It is not something that "everybody would agree should be prohibited."

With all due respect, Mssrs. Bush, Cheney, Gonzales and Yoo, your opinions are beyond the pale. You lack the decency of ordinary human beings and deserve to be reviled now and for all time.

Cheney Ignored The Constitution, Again

2007-05-27T22:27:00.000-06:00

Dick Cheney addressed the Graduates of the United States Military Academy, West Point, Friday and delivered a speech that was was largely forgettable but had some odious passages thrown in. The speech was front paged by BarbinMD on DailyKos Friday and received considerable attention. There was one thing that was not mentioned in the article but that picked up by several commenters that continues to churn inside me. Cheney forgot to mention the Constitution.

The Vice President's speech concluded with this passage.

On your first day of Army life, each one of you raised your right hand and took an oath. And you will swear again today to defend the United States against all enemies, foreign and domestic. That is your vow, that is the business you're in.

There is one huge problem with what he said. No member of the military or, for that matter, no civilian Federal employee swears an oath to protect the United States. Not Dick, not Bush, and certainly not these new Army officers. All military personnel take the following oath contained in 5 USC 3331.

“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter.”

"Support and defend the Constitution of the United States. The Constitution. The critical word in the oath of office, the word that gives meaning to the oath, the entire focus of the oath was nowhere to be found in Cheney's speech. It is unlikely Cheney's omission was a mere oversight. However, before discussing that, the following background information regarding the oath will make clear why every Federal office holder swears an oath to protect and defend the Constitution, and not the "Nation", the 'People" or the "President."

There are two provisions in the Constitution relating to the oath of office. Article II, which establishes the Office of the President, requires each President to swear an oath to -

"preserve, protect, and defend the Constitution of the United States."

Article VI contains the oath requirement that applies to all other government officials, whether in the legislative, executive, or judicial branches or the military. That provision states simply that each Federal official "shall be bound by oath of affirmation to support the Constitution." That Article VI requirement was implemented in the first law passed by the first Congress which contained the following simple oath: "I do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States." While that initial language has been amended over the years the language adopted in 1884 is the same as we have today.

It has been written on more than one occasion, including here, that Bush does not remember or maybe never knew that he swore an oath to preserve, protect and defend the Constitution. But most of his statements were off the cuff remarks or answers to questions, where his inarticulateness is legend. Such was not the case with Cheney. His misstatement was deliberate. We know that because it is contained in the written text of his remarks that are posted on the White House web site. It is possible that he is the victim of incompetent staff work or his own incompetence in failing to recognize the mistake in his text, but there is ample reason to believe otherwise.

Cheney's words seems to be another affirmation of his disdain for the Constitution. We have seen that disdain in his disregard for the basic liberties enshrined in the Constitution. Provisions such as the guarantees of due process, habeas corpus, freedom of speech and assembly, and prohibitions against warrantless searches and seizures are alien to him. Similarly the checks and balances in the Constitution, particularly those that subject the powers of the President to the will of the people as expressed through their Congressional representatives carry no weight in his mind, a mind that sees all power consolidated in a unitary executive.

His vision would be anathema to the Founders and is repugnant to any patriot today. The founders rebelled literally and figuratively from a country where we would owe allegiance to a ruler, or his party, or to the administration in power. Their feelings on this score were clear and unambiguous. They required that those who swear the oath, owe their allegiance to only one thing, the Constitution. That allegiance requires them to ensure that the rights of the people enshrined in the Constitution and the duties and responsibilities of the governmental institutions created by that document are protected from any person who would seek to deny those rights or subvert those institutions. It is a simple oath, but its significance cannot be overstated.

We do not serve the government or this Administration, we serve the Constitution. And only by doing so can we ever hope that the government will be true not only to the letter of the document, but also to the principles embodied in the Preamble.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

All of those principles are important. But in this era, three stand out - Establish Justice, Promote the General Welfare, and Ensure the Blessings of Liberty to Ourselves and Our Posterity.

Dick doesn't agree with that and by deleting the Constitution from his speech he is hoping we will forget.

Crossposted at Never In Our Names.

Please Support Senator Harkin's Bill To Close Guantanamo In 120 Days

2007-05-24T09:38:00.000-06:00

The ACLU just sent an advisory that Senator Tom Harkin has introduced a bill that would require the Guantanamo prison/torture center, also known as America's Shame, to be closed within 120 days after enactment.

Now is a more critical time than ever to have our voices heard on the question of torture and America's Shame. At the last Republican Candidates Presidential debate only one candidate, McCain, spoke out against torture and he was greeted with thunderous silence. Those who spoke in favor of torture were greeted with deafening applause accompanied whoops and hollers. These sniveling traitors to the Constitution included Guiliani who said he would do "anything" to get information, Romney who would "double the size of Guantanamo, and Tancredo who pleaded for help from Jack Bauer.

Here’s a summary of what the bill does:

• It requires the President to close the Guantanamo Bay detention facility within 120 days of enactment.

• Within 120 days of enactment, the detainees will be either sent to the United States Disciplinary Barracks at Fort Leavenworth to await trial or serve their sentences or transferred to another country that will not torture, abuse, or otherwise persecute the detainee.

• For each detainee being held at Guantanamo Bay, the government will have 120 days to either charge the detainee with a federal crime or transfer him to his home country or another country, provided they will not engage in tortured, abused, or persecuted. The government may have an additional renewal period of 120 days to hold the detainee if it is preparing charges and has a logistical need for additional time.

• The bill ends the practice of indefinite detention without charge of hundreds of detainees--most who have been held more than four years, and many who have been held more than five years without charge and without even knowing the reason that they are being held.

• The detainees who are charged will be detained in the military prison at Fort Leavenworth while awaiting trial, during trial, and during their sentences. This is the military's prison specifically designated, designed, and built by the Defense Department to hold national security prisioners.

The bill will provide additional funds to prosecute and defend cases brought against the detainees, and for costs incurred by the government or the region in transferring or detaining prisoners.

Please go to the ACLU website above, or any other place, to urge your Senators to support this bill.

Bush's Bodacious Band Of Buffoons

2007-05-21T15:42:00.000-06:00

Ever wonder why Muqtada al-Sadr doesn't seem to care much for our Iraq policy or our occupation? An article in the Independent gives us a pretty good hint. In 2004, we tried to asasinate him.

It all started back in August 2004 when Mr Sadr and his Mehdi Army militiamen were besieged by US Marines in Najaf, south of Baghdad. The story is told by the current Iraqi National Security Adviser, Dr Mowaffaq Rubai'e

Dr Rubai'e had gone to Najaf in August 2004 to try to mediate an end to the fighting. He met Mr Sadr who agreed to a set of conditions to end the crisis. "He actually signed the agreement with his own handwriting," said Dr Rubai'e. "He wanted the inner Najaf, the old city, around the shrine to be treated like the Vatican."

But when Dr. Rubai'e returned to Bahgdad, Prime Minister Alawi instructed him to return to Najaf to get a final document signed and the signing was to occur in a particular house.

As told by Rubai'e,

It was agreed that the last meeting would take place in the house in Najaf of Muqtada's father Mohammed Sadiq al-Sadr who had been murdered by Saddam's gunmen with two of his sons five years before. Dr Rubai'e and other mediators started for the house. As they did so they saw the US Marines open up an intense bombardment of the house and US Special Forces also heading for it. But the attack was a few minutes premature. Mr Sadr was not yet in the house and managed to escape.

Although Dr Rubai'e, as Iraqi National Security Adviser since 2004 and earlier a member of the Iraqi Governing Council, is closely associated with the American authorities in Baghdad, he has no doubt about what happened.

He sees the negotiations as part of a charade to lure Mr Sadr, who is normally very careful about his own security, to a house where he could be eliminated.

Every time we hear of Bush's incompetence in beginning and prosecuting this Fiasco we think we've heard the last of it. But as of today, this may take the cake. Anyone who knew his butt from first base knew that al Sadr had taken on the mantle of his father, a powerful Shiite cleric, who, along with two of his sons, had been assassinated by Saddam in 1999. Those murders by Saddam had provoked widespread civil unrest in Iraq. And small wonder. The Sadrist movement was a powerful force that was a blend of "nationalism, religion and populism proved highly attractive to Iraqi Shia, particularly to the very poor." That movement surfaced out into the open after Saddam's overthrow.

Unfortunately, Bush and his bodacious band of buffoons didn't know any of this. So, like Saddam before him, Bush decided the Sadr organization had to be crushed, either by defeating it militarily or killing it's leader. To our great leader this would have sounded like an easy task. After all, we had overthrown Saddam a year earlier in a "cake walk" and only had a few "dead enders" to deal with before we could complete the building of Iowa on the Euphrates. Clearly the Iraqis loved us, and all this silly talk of inter-sectarian rivalries and animosity was the talk of people who were far two negative. And the idea of intra-sectarian rivalries, for instance between different Shia factions, was too preposterous to contemplate. The leader of Iraq was our guy Alawi, who was a Shia just like Sadr. That was good enough for us. Sadr or anyone else who opposed him was obviously a marginal figure and traitor who had to be dealt with forcibly. If he died, all the better. His coterie of hangers on would soon disappear.

It is possible that the plan to kill Sadr did not originate with the Americans but rather with Alawi. But that is almost a distinction without a difference since Alawi was our hand picked interim President. What is undeniable, given the role of the U.S. military in this botched episode, is that we actively tried to kill him. Some suggest we may have wanted to capture him, but the weaponry we used doesn't suggest that.) In any event, we failed and Sadr laid the blame at our doorstep.

And the consequence of this botched assassination attempt are still with us.

Dr Rubai'e said: "I know him very well and I think his suspicion and distrust of the coalition and any foreigner is really deep-rooted," and dates from what happened in Najaf. He notes that after it had happened Mr Sadr occupied the shrine of Imam Ali in Najaf as a place of refuge.

There is little doubt that if the U.S. had succeeded in killing Sadr in 2004, the civil war would have begun in earnest much sooner than it did. But since Bush was too dumb to see what he had set in motion when he unleashed the dogs of war in March, 2003, he could not possibly understand the consequence of killing a major Shia leader right after overthrowing the Sunni leader, Hussein. Might as well have the whole country hate us.

When, oh when, will we be rid of these morons?

Federal Taxes And Spending-We are Losing The Class War

2007-05-16T10:22:00.000-06:00

Few people in this country have much of a clue about the Federal Government. Where does it get it's money? How does it spend that money? How big is it? How many people work for it? And many other questions.

Readers of this site are smarter than the average bear, for sure. Even so, the subject is pretty dense and maybe all of us are in need of a little refresher. So here are a few questions. If you answer them correctly, you are awarded a gold star. But if not, you might want to read further.

I) In 1962, the Federal civilian Executive Branch workforce contained 1.8 million employees. What was the size of this workforce in 2006? a) 1.1 million, b) 1.8 million, c) 2.5 million, d) 3.4 million. In answering that question remember that the population of the country grew from about 180 million to 300 in that time period. (The Executive Branch does not include the Post Office, Congress or Courts.)

II) In 2006, what percentage of Federal expenditures came from income taxes paid by individuals? a) 39%, b) 45%, c) 68%, d) 81%

The answer to the first question is b) 1.8 million employees. Yes, even though the population has grown by 40% since 1962 the Federal workforce has stayed the same. This number does not include contract employees, whether working individually or for large companies. I hope to get to that later or in another article.

The answer to the second question is a) 39%. Less than two fifths of what we spent last year came from your and my income taxes. The rest came from other sources which are discussed below.

The source materials for this article are the 2008 Budget of the United States from the web site of OMB. This is an invaluable document which you can download or read on line. Ignore all the propaganda about how Bush is making life better and go to the charts and tables in the Analytical Perspectives. The Congressional Budget Office historical tables provide forty-five years of comparative data. The Office of Personnel Management has a treasure trove of employment data. Lastly, the Congressional Budget Office is a great resource that also cuts through some of the bloviating coming from the Administration.

Income

The government gets income from hundreds of sources. They are grouped in seven major categories - Individual Income Taxes; Corporate Income Taxes; Social insurance Taxes, which are largely social security and medicare; Excise taxes, like the gas tax; Estate and Gift taxes; Customs Duties; and Miscellaneous. In addition to knowing how we collect money now it is really interesting to see how the burden of these taxes has changed over the years. This chart tracks changes in those numbers starting in 1962, to the height of the Viet Nam War, the last years of the Carter, Reagan, GHWB, and Clinton administrations, and 2006, which is the last year for which we have data.

Revenues by Major Source, 1962 to 2006 (Billions of dollars)
Sources: Congressional Budget Office; Office of Management and Budget.

Ind. Corp. Soc.Ins. Excise Est. & Gift Customs Misc. Tot. Tot.

1962 45.6 20.5 17.0 12.5 2.0 1.1 0.8 99.7

1970 90.4 32.8 44.4 15.7 3.6 2.4 3.4 192.8

1980 244.1 64.6 157.8 24.3 6.4 7.2 12.7 517.1

1988 401.2 94.5 334.3 35.2 7.6 16.2 20.3 909.3

1992 476.0 100.3 413.7 45.6 11.1 17.4 27.3 1,091.3

2000 1,004.5 207.3 652.9 68.9 29.0 19.9 43.1 2,025.5

2006 1,043.9 353.9 837.8 74.0 27.9 24.8 45.0 2,407.3

Many things jump out of that data, but there are two really noteworthy thing for me. In 1962 corporate income taxes represented 20% of Federal income, by 2006 they had dropped to 14%. Social insurance taxes increased from 17% of income to 34.8% of income in 2006. Keep in mind, those are the taxes paid largely by working people because they only apply to wages below $97,500 this year and don't apply to dividends or capital gains.

Deficits and Debt

This is one of the most confusing parts of the budget. Not only are they two different things but there are two kinds of debt and two types of deficits.

As of the end of 2006 the federal government had accumulated a debt of $8.42 Trillion. That is what is referred to as the National Debt. It is a monster number but also a misleading one because there are two different national debts. The Government owes $4.829 Trillion to the public, which is people who bought government bonds. But it also owes $3.622 Trillion to itself. How can that be one might ask?

The complexity stems from the fact that the government collects general revenues, such as income taxes, which can be spent on anything. But it also collects money that can only be used for specified purposes. The most familiar of those sources are Social Security and Medicare taxes, but they also include gas taxes and airport taxes. Those revenues go into "trust funds" and must be used for designated purposes. Every year that less money is spent on Social Security benefits than is collected in taxes, the surplus amount is added to the fund. That has been the case with Social Security for all but a handful of years, which has accumulated $2 Trillion.

A problem arises, though, when the Government doesn't collect enough general revue in a given year to cover it's general expenses. At that point it needs to borrow the difference. It has two choices - issue bonds to the public or borrow from it's own trust funds. It does both. It borrows from the trust funds first, giving them notes with a specified interest rate, and then borrows from the public for the rest. It makes sense for the government to do this, otherwise it would have to increase public borrowing which would drive up rates. But because this is not well understood, the public does not get a clear picture each year of our revenue shortfalls.

That gets us to the deficit. The deficit is the difference between what the Government takes in each year from all sources and what it spends in that year. But in reality, here are two deficits. There is the one the public sees each year and then the real deficit. In 2006 we were told that the deficit was $284 Billion But in truth, it was $434 Billion The difference was $185 Billion that was borrowed from excess Social Security taxes. It is important to remember those taxes came only from wage earners making less than $97 thousand. They did not come from people earning millions of dollars or whose income is from dividends and capital gains.

This also means that every time we cut income taxes for the wealthy or eliminate the estate tax, we are shifting that tax burden onto the shoulders of wage earners who pay Social Security taxes.

Federal Spending

The Federal Budget is comprised of thousands of programs. For an overview those expenditures are aggregated into the following "functions', as described by the Center on Budget And Policy Priorities. Here is the percentage of the total 2006 budget that was spent on each of these categories.

Defense and security - 21%: The largest component of the “defense and security” category is the national defense function. This category also includes expenditures for activities that OMB has designated as homeland security activities but that fall outside of the defense function.[4] In addition, this category includes the international security assistance subfunction of the international affairs function.

Social Security - 21%: This category consists of all expenditures in the Social Security function.

Medicare, Medicaid, and SCHIP - 19%: This category consists of the Medicare function, as well as the “Grants to States for Medicaid” account and the “State children’s health insurance fund” account.

Safety net programs - 9% : This category of programs includes all programs in the income security function except those that fall in the following two subfunctions: the federal employee retirement and disability subfunction; and the general retirement and disability insurance subfunction. The latter contains the Pension Benefit Guarantee Corporation and also covers programs that provide pension and disability benefits to certain small groups of private sector workers.

Interest on the national debt - 9%: This category contains the net interest function.

Everything else - 21%: This category includes all federal expenditures not included in one of the five categories defined above. The subcomponents of this category that are displayed in Figure 2 are defined as follows:

Benefits for civilian retirees and veterans - 5%: This subcategory combines the veterans benefits and services function and the federal employee retirement and disability subfunction (which is part of the income security function).

Education - 4%: The education subcategory combines three subfunctions of the education, training, employment, and social services function: elementary, secondary, and vocational education; higher education; and research and general educational aids.

Scientific and medical research - 3%: This subcategory consists of the general science, space, and technology function and the health research and training subfunction of the health function.

Transportation - 2%: The transportation subcategory consists of the entirety of the transportation function.

Non-security international - 1%: This subcategory consists of the international affairs function with the international security assistance subfunction removed.

All other -5%: This subcategory consists of all expenditures that fall in the “everything else” category and are not included in one of the five subcategories described above.

This "all other" category, which spends only 5% of the budget is much of what most people think of as the Government. It includes the Federal Courts and prosecutors; FBI and ATF; USDA, which includes the Forest Service, farm programs, rural development programs like the Rural Utility Service which used to be the REA, and meat inspectors; Department of interior, which includes the National Park and BLM; all the regulatory agencies like the Consumer Product Safety Commission, Food and Drug Administration, FDIC, and Federal Reserve Board; the Congress whose largest expenditures are for the Library of Congress, Government Accountability Office and other research arms, and the list goes on and on.

Observations

The Wealthy are Winning the Class War. Income taxes are supposed to be progressive. The principle is that a wealthy person can afford to pay a larger percentage of his income in taxes than a poor person. The system is supposed to require the wealthy to pay a higher tax rate and provide deductions and exemptions to benefit the middle class. In contrast Social Security/Medicare taxes are designed to be regressive. You pay a flat rate up to the income limit, with no exemptions or deductions. As a consequence, most families earning less than $70,000 pay more in Social security/Medicare taxes than income taxes. And they actually pay more than they think. They pay 7.65% from their wages, but their employer also pays 7.65%. Since the employer could have increased the employees salary by that amount, each of us is effectively paying 15.3%.

So how has this played out in the last forty four years? From 1962 to 2006 individual income taxes slipped from 45% to 43% of revenue and social insurance taxes jumped from 17% to 35% of revenue. And as an added benefit to the wealthy, during that same time period Corporate income taxes dropped from 20% to 14% of revenue. While the stocks of those companies has increased in value 140 fold, their contribution the government and citizens that enable them to prosper has dropped by 30%.

Middle Class is Subsidizing the Wealthy. In 2006 22% of the Social Security and Medicare taxes ($185 Billion), which were collected only from poor and middle income wage earners, were used to fund the military and other expenses of the Federal Government. Expenses that should have been payed with corporate and individual income taxes. That robbing of Social security has been going on for virtually every year since the program's inception and really picked up the pace after 1984. In that year the last major "reform" was made to the program that raised contribution rates and delayed retirement dates. As of right now income tax payers and corporations have "borrowed" almost $3.6 Trillion from Social Security and other trust accounts.

There would be nothing wrong with that in principle except that people like Bush threaten to never pay it back. Remember our President saying that all those Government notes in the Social Security Trust Fund were just a bunch of pieces of paper. Whenever you hear someone advocating "Social Security reform," look close at what they are saying. They are not advocating that the wealthy pay more income taxes so that the trust funds can be repaid. Remember Gore and his "lock box.' He wanted to end the raiding of the trust funds. But the Republican right made that into a joke.

Return to the Reagan Era. We just finished watching the Reagan Love Fest, AKA Republican Presidential candidates debate. Remember those glory days of yesteryear when there were four cars in every garage, prime rib in every oven and an economy humming to perfection. I think we should go back to something from that era, which would go a long way towards making our tax structure more progressive and solving our fiscal problem. Today, the top tax rate is 35%, applied to income over $338,000, and the capital gains rate is 15%. In the heyday of Reaganomics, between 1982 and 1986, the top tax rate was 50%, it applied to income over $215,000, and the capital gains rate was 20%. If it worked miracles then imagine what it could do for us now.

One, Two, Three, What Are We Fighting For?

2007-05-06T20:50:00.000-06:00

Country Joe & The Fish asked that question back during the Viet Nam War

And it's one, two, three,
What are we fighting for ?
Don't ask me, I don't give a damn,
Next stop is Vietnam;
And it's five, six, seven,
Open up the pearly gates,
Well there ain't no time to wonder why,
Whoopee! we're all gonna die.

It was easy to ask that question back then because the Viet Nam War was so clearly pointless. But that is hardly the case today with Iraq. Now, our reasons for sending soldiers to die are clear.

At this point our soldier are fighting and dying for whatever reason anyone wants to put forth. Saddam revenge, kill the 9/11 attackers, free the Iraqis, bring democracy to the middle east, oh yes, and my favorite, to prevent the chaos in the region from becomming more chaotic.

But there's more. Here's a glimpse of what we are really fighting for. We are fighting so that a group of men belonging to the Yakidi religion can stone to death a 17 year old girl who converted to Islam, the religion of her boyfriend.
But we also want to be sure it doesn't end there, so our fighting in Iraq insured that

On April 23, gunmen stopped a bus carrying workers to her community, the village of Beshika 10 kilometres (six miles) outside Mosul, dragged out 23 Yazidis and shot them dead.

We all know that it is absolutely imperative that we allow religious bigotry to flower in Iraq and that the victims of such bigotry have ample opportunity to exact their revenge.

That's not all, though. Our troops are also fighting, bleeding and dying to insure that the Iraqi government can mimic Saddam, Bush's favorite nemesis, by preventing Iraqi doctors from leaving the country. That's right. What was good enough for Saddam is good enough for al Maliki and is certainly something worth our troops dying for. As reported by the Post

Iraq is hemorrhaging doctors as violence racks the nation. To stem the flow, the Iraqi government has recently taken a cue from Saddam Hussein: Medical schools are once again forbidden to issue diplomas and transcripts to new graduates.

Hussein built a fine medical system in part by withholding doctors' passports and diplomas. Although physicians can work in Iraq with a letter from a medical school verifying their graduation, they say they need certificates and transcripts to work abroad.

It is a common refrain among war-weary Iraqis that things were better before the U.S.-led invasion in 2003. Electricity in Baghdad was more reliable; sectarian hostility was rare; Iraq was safe -- except for the many victims of Hussein's tyranny. But rarely has the government embraced a policy that so harshly evokes the era of dictatorship. To some students and doctors, the diploma decision, like Iraq's crumbling medical system, provides clear proof of the government's helplessness and the nation's decline.

But that isn't all we are fighting for . No, we also want to make our troops die for a country that thinks reporters should be killed and press offices destroyed if the press has the audacity to criticize religious leaders.

Hundreds of angry Shiites poured onto the streets of two cities south of the Iraqi capital Friday to protest what they considered insults by Al-Jazeera television against Iraq's most revered Shiite cleric, Grand Ayatollah Ali al-Sistani.

The protesters were angered by an Al-Jazeera talk show this week in which the presenter questioned al-Sistani's leadership credentials.

* * * *

"Yes, yes to al-Sistani," read banners carried by some of the 1,000 protesters in Basra, Iraq's second largest city. They gathered outside the local offices of Iraq's largest Shiite political party, the Supreme Council for the Islamic Revolution in Iraq, or SCIRI, which has close links to al-Sistani.

In the holy Shiite city of Najaf, where al-Sistani lives, several hundred protesters marched in the city's old quarter in solidarity.

"Today, we burn down Al-Jazeera," chanted the protesters who carried portraits of al-Sistani. Others demanded that the channel as well as Qatar be sued. One Najaf protester carried several pictures of Qatar's emir, Sheik Hamad bin Khalifa Al Thani, with a shoe hoisted on the images to show contempt for him.

Now that's certainly worth fighting and dying for. I bet we could increase recruiting if we put that on a poster.

Uncle Sam Needs You To Protect Imams By Killing The Press

That would sure go over big in the Bible belt. Of course everyone knows that these are only some of the reasons we are fighting. These are important but not nearly as important as what this war does for our economy. If we we weren't fighting and dying over there we couldn't sell nearly as much ammunition as we need to to keep the economy humming.

The Bush administration told Congress on Friday of plans to sell Iraq about 400 million rounds of small arms ammunition, 170,000 grenades, demolition explosives and other military gear and services valued at up to $508 million.

Now that's a cause everyone can embrace. You can't sell bullets if you don't shoot bullets. Sure some of those bullets are going to wound maim or kill our soldiers, but everyone has to do their part to keep the economy humming.

Besides that, if we didn't keep fighting we wouldn't see the kind of progress we are seeing in Iraq. How could things be going any better? Friday: 6 GIs, 71 Iraqis Killed; 89 Iraqis Wounded Six American soldiers killed is proof positive that we are winning and everyone knows that winning is the ultimate goal. If you stop fighting, you lose.

So that must be it. The administration has finally arrived at the seminal reason for the war. We Fight So That We Can Win.

This conflict is so utterly pointless and tragic that it has become a bloody parody of itself.

The Saudis Try To De-Guantanamoize Their Citizens

2007-04-29T22:29:00.000-06:00

Guantanamo, the supposed home of the worst of the worst, is largely populated by people caught in the wrong place at the wrong time as discussed here, and here, and here, But how are these people being de-Guantanomoized when they get home? How is their hatred being quieted and the bleeding agony of their experience being staunched? The Saudis may have an answer. As reported by McClatchy they are re-educated and shown a better way of life.

To keep the former detainees from deep-pocketed militant recruiters, Saudi officials have treated them to perks that have included new cars, resort stays, job placement and help in finding brides. They've also exposed them to moderate clerics and reminded them of Islam's restrictive rules for waging holy war, or jihad.

Saudi officials said the goal is to stop the proliferation of radical ideology that they said is bred in prisons and on the Internet. The ideology has flourished at Guantanamo and is evident among the returning Saudi detainees - even those who were moderates before they were imprisoned, Saudi officials said.

Heaven knows the Saudi society is one of the most closed and restricted in the world. Their tolerance for Wahibism has not done the world any favors. And the monarchy may be hanging on by a thread. But on this, they seem to be getting it right.

The multimillion-dollar rehabilitation program is available to most Saudis who've been accused of terrorism-related crimes, and officials estimate that as many as 2,000 have participated in the program since its inception in 2004.

The program pays special attention to those released from the U.S. prison in Guantanamo Bay, Cuba. Nearly every Saudi returning from American captivity undergoes up to 10 weeks of intense psychological tests, starting with an evaluation on the private plane that whisks him home from the American prison, Turki said.

Only 60-65 of that 2,000 have been Guantanamo prisoners. But it should be remembered that we have released approximately 390 prisoners from guantanamo and continue to hold about 390 more. How many of those fit this profile

Abu Suleiman said that when he was 20 years old and impressionable, he was recruited into a militant cell in the Philippines. With dreams of fighting alongside Chechen rebels, he received training in Afghanistan, where he met bin Laden "a few times" and where he was captured in late 2001 by U.S.-led forces in the mountains of Tora Bora.

In his four years at Guantanamo, one of them in isolation, Abu Suleiman said, he underwent severe U.S. interrogations "from the first day to the last day." When he was finally released last year, he expected even harsher treatment from the Saudi prison system.

. . . .

I was shocked by the good treatment," Abu Suleiman said. "They make it easy for me to forget what happened in Guantanamo."

All is not well in Saudi Arabia. They are in fact reaping the harvest of seeds they have sown over many years and, to a certain extent, continue to sow. And the fruits of their labors are present today. Their anti-terrorism counsellors have some big problems to overcome, as explained in the article.

That's why the program enlists counselors such as Sheik Mohamed al Nejeimi. He's one of 100 state-backed clerics who counter radical teachings with moderate passages from the Quran, Islam's holy book. The detainees pepper Nejeimi with easy questions such as when jihad is valid or how to fight tyranny within the framework of Islam.

But he said there's one frequently asked question that always stumps him: "Why did you let us go to Afghanistan to fight the Russians then, but won't let us go there now to fight the Americans in similar conditions?" The government's reply is that jihad should be in the interest of one's homeland. Fighting the secular Soviets in the 1980s was permissible; fighting Kabul's Muslim-led government today is not.

But regardless of the past, they understand something that seems to elude our government. This is a conflict of ideas. Sure you go after the really bad guys. But you don't create hatred in the process. We can only win this if we convince people of the rightness of our ways. They don't have to agree with our beliefs. But they need to understand we are just and mean them no ill will.

Outraged Yet? This Is Being Done In Our Names

2007-04-26T11:58:00.000-06:00

The Center For Constitutional Right released new testimony regarding the torture, rendition and other outrages inflicted on Majid Khan. The problem with these stories is that they all start to blend together and we become numbed to their horror and what they say about our country. But this one is a little different because Najib was raised in Baltimore, MD and attended high school there. Also, his brother, Mohammed, with his wife and infant were imprisoned with Najib. Najib's father and his other siblings are legal residents who were granted assylum in the U.S. ten years ago and still live in Baltimore.

Najib's father, Ali, filed a statement in his son's Combatant Status Review Tribunal (CSRT) proceeding which details the sorry history of his son's abuse.

[T]he Americans tortured him for eight hours at a time, tying him tightly in stressful positions in a small chair until his hands, feet and mind went numb. They retied him in the chair every hour, tightening the bonds on his hands and feet each time so that it was more painful. He was often hooded and had difficulty breathing. They also beat him repeatedly, slapping him in the face, and deprived him of sleep. When he was not being interrogated, the Americans put Majid in a small cell that was totally dark and too small for him to lie down in or sit in with his legs stretched out. He had to crouch.

Yes, we've heard this all before. We have also heard things like this -

This torture only stopped when Majid agreed to sign a statement that he was not even allowed to read. But then it continued again...

It all started on March 5, 2003.

What I can tell you is that Majid was kidnapped from my son Mohammed’s house in Karachi, along with Mohammed, his wife and my infant granddaughter. They were captured by Pakistani police and soldiers, and taken to a detention center 15 minutes from Mohammed’s house. The center had walls that seemed to be 80 feet high. My sons were hooded, handcuffed and interrogated. After eight days of interrogation by U.S. and Pakistani agents, including FBI agents, Mohammed was allowed to see Majid. Majid looked terrible and very, very tired.

But as outrageous as this four year ordeal has been it is made even worse by by the total sham justice that is the CSRT. Majid tried to have his family in Maryland testify on his behalf, but those efforts were thwarted.

Majid sent questions to his family in preparation for his CSRT and hoped to call them as witnesses in his defense. In a series of exchanges between CCR attorneys and the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) over the last two weeks, the Defense Department explicitly refused to provide his family - asylees living legally in the United States for over a decade - with a guarantee that they would be able to safely re-enter the U.S. after their appearance as witnesses at the tribunal.

Can't guarantee their safe return? You have to be kidding. They aren't even willing to pretend this proceeding has even a patina of fairness.

Mohammed Khan, Majid's brother expressed the outrage we should all be feeling.

"Our imprisonment in Karachi and interrogation by Americans was a terrifying experience," said Majid's brother Mohammed Khan, by phone from Pakistan. Mohammed, along with his wife and one-month-old daughter, was abducted with Majid from the family's apartment in Karachi, Pakistan, in March 2003. "I still cannot believe that for the last four years the U.S. government has held my brother in secret detention and now won't even let him see our family or his lawyer. When I think about the detention of my newborn daughter, Majid's torture that made him sign a confession without reading it, and his disappearance into a secret prison, I feel our family is caught in a nightmare. No human being should have to go through what my brother endured - and is still enduring."

Lest anyone have any doubt as to the thoroughness of our government, rest assured that Ali was not spared his own version of American justice. From his statement to the CSRT he details how we treat people living right here in the "homeland" (How I hate that word)

At the time Majid was kidnapped and these events were happening in Pakistan, our family’s home in Maryland was also raided by government agents. Our whole house was searched from top to bottom, and our life was so disrupted that we eventually had to move out of our neighborhood. I was also interrogated by FBI agents for several days, as was each of my sons and daughters. We were threatened, and when we asked about lawyers we were told that they could not help us. The FBI pressured us to talk and to speculate about Majid. They followed us everywhere we went for a long time, requiring us to tell them in advance where we were going and what we were going to do there. They followed us so closely that we even asked them for directions sometimes when we got lost driving.

Despite all that we have endured, we have always cooperated and continue to cooperate with the government. At this point, the FBI has probably questioned us for hundreds of hours. I think they have opened our mail. And they seem to have placed
listening devices in our house, our phones and probably our computers. They have also tried to recruit my sons to spy on other Muslims by bribing them with money. I am also not allowed to leave the country. But the government still refuses to show us any evidence against Majid. This is not right. We expected much more in America, particularly because Majid has political asylum here and grew up and went to high school here in Maryland. He has legal status in the United States.

And what of the evidence against Majid. Well, we don't know much, but his father's statement suggests that it may not qualify for "slender reed" status.

I have not seen my son in more than four years, since before he was kidnapped from his brother’s home in Karachi on March 5, 2003. Now I am told by the military that my son wants to know whether I said in March 2003 that he became very religious and developed anti-American feelings, and whether one of my other sons said that Majid might be involved with Al Qaeda. Where and when did we make these statements that you claim we made? Who did we make these statements to, exactly? The government has refused to give us this information. Anything we may have said about Majid was simply out of shock because we only knew that Majid had disappeared, and was pure speculation based on what FBI agents in the United States told us and pressured us to say.

Maybe Khan actually did something for which he deserves punishment. Or maybe he's just another in a long list of hapless guys who have become pawns in the Bush campaign to terrorize America. I would guess that if he had really done something we would have witnessed a news conference from Moscow or Katmandu telling the world about it. Which leaves us with the second choice. Four years and counting in America's Shame for who knows what, if anything.

Bush Terrorizes Padilla Jury

2007-04-20T15:40:00.000-06:00

Just how effective has Bush been in terrorizing our nation? How completely has he caused our citizens to conflate 9/11 with every enemy, real or imagined? The jury selection in the Jose Padilla case gives us a glimpse.

As reported by the Los Angeles Times the judge in the Padilla case is having a difficult time impanelling a jury. Of the first 550 questioned by mail a third were disqualified. Of the first 36 questioned in person by the judge more than half have been excused. The numbers though, are not as alarming as what they have told the judge.

Fist, there is the businessman who said

"It would pose some difficulty to me to be open-minded when the subject is terrorism,"

This is not just some abstract view of terrorism. As reported by the L A Times

Prospective jurors, including a Latino highway surveyor, an African American nurse, a Jewish advertising accountant and a divorced white electrician, have repeatedly invoked the images of the Sept. 11 terrorist attacks as the basis for their inability to judge Muslims fairly.

And, from another,

"Being very honest, in my heart, I don't know that I can" set aside memories of the terrorist attacks, she told Cooke. She was excused after being asked whether she would want someone like her on her own jury. "No," she answered vehemently.

Isn't that frightening. This man is not charged with anything even remotely connected with 9/11 and yet Bush has so effectively constructed an edifice of fear around 9/11 that people view anything involving the mere mention of terrorism as somehow raising the specter of the 9/11 tragedy.

These jurors also illustrate how difficult it is to get people to realize that we have a Constitution for a reason. That just because someone has been charged with something does not make it so.

A department store sales clerk also of Latin American descent was dismissed after repeatedly insisting that the defendants must have done something wrong to have landed in federal court.

That was followed by these prospective jurors,

Two women whom Cooke questioned Tuesday were among the most impassioned in expressing their views that the defendants weren't entitled to the rights they have in U.S. federal court.

We know there are people like this. But to actually here people stand up in court and tear up the Constitution in the interests of some illusory concept of personal safety is truly chilling.

Also in evidence in the trial is how effectively Bush and his cohort have managed to play the Muslin equals terrorist card.

A single mother who works at a medical office was asked whether she considered Muslims disproportionately prone to violence. She replied: "Before Sept. 11, I would have said no. But from what I've heard since then on the news, I'd say yes."

What is so tragic about this sentiment is that we as a nation never learn. We went through this with the internment of Americans of Japanese ancestry during WW II, later to realize it was a blight on our country, a shameful episode that should never be repeated. (When I say "all" I exclude Michelle Malkin, of course). Yet here we are, sixty years later doing the same thing.

And of course it isn't just memories of 9/11 driving these feelings. From all those moronic color code episodes where we were all advised to stay especially vigilant through the parade of highly questionable "terrorism" apprehensions we have been encouraged to see plots all around us.

"From the terrorism here in this country and what I know about the background in this case, I would not be a fair and impartial juror," an advertising accountant said. "It's hard to admit that you're prejudiced and biased, but in this situation I am."

She was dismissed, as was a self-employed Miami Beach businesswoman who said that she regarded the defendants as "radical people" and believed "that they want to destroy us."

That juror mentioned the "background" of this case. Well lest any of us have forgotten, what is that background? Jose Padilla's arrest first hit the National news in June 2002 when Ashcroft announced to the world that a man who planned to attack the U.S. with a dirty bomb had been aprehended. The lies started that day. In reality, padilla had been arrested a month earlier, in May 2002, and held as a material witness. Originally jailed in New York, he was transfered to a Navy Brig in Charleston, S.C in June after Bush declared him to be an enemy combatant. He rotted there for three and a half years without charges. Then, in November 2005, in order to avoid a likely Habeas Corpus hearing by the Supreme Court, Padilla was transferred to Florida and his name was added to a pending indictment against other "alleged" terrorist. No dirty bombs, no activities in this country. Another loser who did some misguided and maybe even criminal things. But certainly not the threat that so many jurors in Florida have been conditioned to fear.

Bush Vows Veto Of Intelligence Bill - Not Enough Secrets

2007-04-13T16:08:00.000-06:00

The Congress has not passed an Intelligence Authorization Bill since 2005, and Jay Rockefeller is determined to change that. In January, the Intelligence Committee reported out S. 372, the 2007 Intelligence Authorization Bill and it is up for consideration by the Senate. ( Yes, we are already half way through the fiscal year but Rockefeller only became Chairman in January.) You'd think the White House would be applauding the Senate for its diligence. On the contrary. The President thinks this bill is a threat to national security and has promised to veto it. How could that possibly be? Well, it turns out that the bill would require Bush to tell us what he is doing in our names in those secret prisons and would require him to tell us how much money he is spending on his outrages. Also, he would have to keep Congress informed. That kind of sunshine is beyond the pale for our President and must be squashed.

Bloomberg and Boston Globe are both reporting the President's veto threat which is spelled out in detail in the OMB statement objecting to the bill.

So what is it about this bill that is so objectionable. Well, as summarized by the Boston Globe, the bill would require,

--Yearly disclosure of the total amount spent on intelligence. The administration has long argued that releasing the figures would be a threat to national security.

--When lawmakers with jurisdiction ask for intelligence assessments and other information, the bill requires spy chiefs to turn the materials over within 15 days. The measure "would foster political gamesmanship and elevate routine disagreements to the level of constitutional crises," the administration says.

--A mandate that the White House brief all members of the intelligence committees on extraordinarily sensitive matters -- not just congressional and intelligence committee leaders, as is often the practice now.

--Required reports on interrogation activities and secret prisons, which the administration says would raise "grave constitutional issues" and jeopardize sensitive information that should not be widely distributed.

--Creation of a statutory inspector general for Office of the Director of National Intelligence who would have the power to direct watchdogs in any of the 16 spy agencies. The administration says the existing watchdogs are best suited to do the job without "dysfunctional interference" from the proposed new inspector general.

--A requirement that the heads of the National Security Agency, National Geospatial-Intelligence Agency and National Reconnaissance Office be subject to Senate confirmation, as well as the CIA's deputy director. The administration calls that unnecessary.

Before getting into those provisions in more detail it is worth noting that this is not a case of only those nasty unpatriotic Democrats gumming up the works. It seems that Senator Bond, the ranking Republican, supports the bill and isn't too keen on Bush's veto threat. As reported by Bloomberg,

Senate Intelligence Committee Chairman Jay Rockefeller, a West Virginia Democrat, and Senator Christopher Bond, the panel's senior Republican, earlier today said Bush needed to be more forthcoming to Congress about intelligence operations.

``There may be some officials of the executive branch that prefer a lack of oversight,'' Bond, a Missouri lawmaker, said in a speech today in the Senate chamber. ``That's not how the system works.''

Now Kit is coming to this party a little late, inasmuch as he was the Chairman of the Committee up until this year, but he is still welcome.

Now lets go to the particulars. The OMB statement lays out all of Bush's its principle objections. First, document disclosure.

Mandatory Provision of Requested Documents in 15 Days Unless the President Claims Constitutional Privilege.

Section 108 provides that the Director of National Intelligence (DNI) and the head of any intelligence agency shall furnish "any intelligence assessment, report, estimate, legal opinion, or other intelligence information" within 15 days upon a request by: (1) a Congressional intelligence committee, (2) any other congressional committee of jurisdiction, (3) the Chairman of a congressional intelligence committee, or (4) the Vice Chairman or Ranking Minority Member of a congressional intelligence committee. This section also provides that the DNI or the agency head cannot withhold the requested item "unless the President certifies that such document or information is not being provided because the President is asserting a privilege pursuant to the Constitution of the United States." Such provisions are highly objectionable, because rather than facilitating effective and cooperative interaction between the legislative and executive branches, they would foster political gamesmanship and elevate routine disagreements to the level of constitutional crises. Section 108 also is impractical and would require IC agencies to
direct resources from critical missions to comply with broad information requests within
an artificial deadline.

"Political gamesmanship?" Are you kidding? The most political administration in memory, one that got a free ride from the Congress for six years is now saying that when Congress does its job that is political gamesmanship. And as far as the argument that responding to these requests would be impractical and divert resources from critical missions, if those other critical missions happen to be the running of secret detention facilities, then I would suggest, the more diversion the better.

Next, Bush objects to provisions that would force the Administration to keep all members of the Intelligence Committees informed of critical matters, not just the top two guys. And in the event,

the DNI or the head of an intelligence agency fails to give the full notification to each member of an intelligence activity, the DNI or agency head must notify each member that a determination has been made not to provide information in full to all members of the committees; provide a classified statement of the reasons for such a
determination

This new requirement for notification of all members would also now apply to disclosure regarding covert actions. No more cozy meetings with a few who are then threatened to keep it all secret.

But what may be most objectionable about these new provisions are the teeth that come with them. Again, back to Bush's veto statement

Section 307 makes such notification to each member a condition on use of funds for intelligence activities. These provisions establish an all-or-nothing approach to executive branch notification to the intelligence committees that could delay actions needed to meet urgent national security requirements and would discourage, rather than encourage, the
sharing of extraordinarily sensitive information needed for effective legislative-executive relations with respect to the most sensitive intelligence matters. This provision, in practice, would seek to compel the disclosure to multiple additional persons of sensitive national security information as to which the President has determined that special protection must be provided.

Congress is saying "no play, no pay." Now that kind of provision truly is a threat to national security.

Now we get to what could be the most critical provisions of the bill that have earned Bush's ire. First, those nasty clandestine torture camps.

Detailed Reports to Congress on Any Detention and Interrogation Activities and on Any Clandestine Detention Facilities.

Section 313 requires the DNI to submit a report (by May 1, 2007) to the congressional Intelligence Committees on the Detainee Treatment Act of 2005. The reports are required to include, among other things, "all legal opinions" provided by the Department of Justice regarding the "meaning or application of the Detainee Treatment Act of 2005 with respect to the detention and interrogation activities" undertaken by any element of the intelligence community. Section 313 includes no exception for applicable legal privileges. Section 314 imposes similarly far-reaching disclosure requirements, obligating the DNI to submit within 60 days a detailed report on any current or former clandestine detention facility. In addition to raising grave constitutional issues, such matters are appropriately left to sensitive handling in the normal course between the intelligence committees and the executive branch and should not be the subject of detailed statutory reporting requirements.

Wow. Bush will have to report the who, what, where, and why for all those clandestine detention facilities. My guess is that they object to this one so strongly because the know that having to report this information effectively means that those facilities will have to be shut down. But I sure do want to read those legal opinions. It might even be possible that the lawyers writing them, knowing they will be scrutinized by outside parties, will be less inclined to write the the type of blank checks we have seen from Yoo and Gonzales.

The last major objection has to do with money. To paraphrase the White House, "if people knew how much we were spending on this they would revolt." Here's Bush's actual language.

Public Disclosure of Amounts Annually Requested, Authorized, and Appropriated for the NIP.

Section 107 would require the President annually to disclose publicly the total amount requested for the NIP and would require Congress annually to disclose publicly the total amounts authorized to be appropriated, and appropriated, for the NIP. The Congress thoroughly examined this issue during its consideration of the Intelligence Reform and Terrorism Prevention Act (IRTPA), when Congress rejected publication of the NIP funding total. The funding information should continue to be kept classified, because disclosure of changes in funding totals over time could compromise intelligence sources, methods, and activities.

Compromise sources, methods and activities. Balderdash. That is the last refuge on an intelligence scoundrel and this super secret White House. I'm glad that the Committee finally blew the whistle on this issue.

There you have it. A very important bill that, if enacted, will bring some much needed sunshine to our intelligence activities. And, it's even supported by Kit Bond.

Mitt Romney Gives Us A Peek Into His Mind

2007-04-11T18:39:00.000-06:00

Every once in a while I like to read the Washington Times. Not because I want to find out whether the Moon is truly made of green cheese, but rather to get some real news, unfiltered by that left wing media bias. Today was precious. I was treated to a lengthy article about Romney firing the "opening shots" in the "defense week" of his presidential campaign.

For all of you who get tired of beating up on our candidates, here is an alternative. Romney's speech provides us with all the ammunition we need to let loose on the Republican Financial Front Runner.

To start out, Mitt gives Bush a full embrace with what has to be one of the most inane comments ever uttered. With metaphorical tears in his eyes Mitt said

We are fortunate today to have a president who loves America

In Mitt's world this is one of the unique qualities of Bush - something that distinguishes him from past Presidents. He is not only different from that Philistine Clinton, but also the likes of Bush 42 and maybe even Saint Ronald.

Mitt goes on to explain that Bush's deep love of the United States is in clear evidence because Bush is a person

who acts solely out of a desire to protect her and to promote liberty around the world

Bush wants to protect the United States so much that he passed up the opportunity to capture the terrorists the caused 9/11 so that he could start an aggressive war in Iraq against a country that did not pose a meaningful threat to us. And while he was at it, he decided to spread liberty by destabilizing the entire region and ridding Iran of its arch enemy, Iraq. Yes, certainly sounds like Bush has our interests at heart.

Mitt then continued to cozy up to Bush by adopting the silly and totally discredited Republican attack on Speaker Pelosi. Reaching heights of absurd hyperboly he declared with grave solemnity that the Speaker's trip to Syria was

one of the most partisan, divisive and ill-considered of any national leader in this decade

Not to be outdone by his own rhetoric he graced the audience with his overarching philosophy of national defense. The audience was undoubtedly spellbound in rapturous awe when he declared that

his own defense philosophy follows from former President Ronald Reagan, who said, "Of the four wars in my lifetime, none came about because the U.S. was too strong."

What in the world does that mean? Does anyone seriously believe we became involved in WWI, WWII, Korea, or Viet Nam because we were too weak? That can't possibly be the explanation, especially not with regard to the first three wars. Our strength relative to our adversaries didn't get us into, nor would it have kept us out of, those wars. As far as Viet Nam is concerned, an argument can be made that if we had not been so militarily dominant and fearful of dominos falling on every corner of the world we might have decided not to engage in that tragic conflict.

Not only was Mitt's statement inane, the history of the lead up to the Iraq war suggests it was wrong. Does anyone think we would have commenced the needless and tragic war in Iraq if we had not been the dominant military power in the world? A power which believed it could reshape the world through military force of arms. A power that could use its military to rewrite thousands of years of history.

So there you have it. Mitt Romney - certified Bush lover, diplomatic guru and military historian. Just think, he could be our next President. If ever there was a time for prayer it is now.

So whenever we debate the merits of our own candidates we should always remember to keep our observations and criticisms in perspective. If we do too good a job of cutting our guys down we could end up with Mitt.

Bamboozlement Hits A Wall - Americans Know Their Security Is Not Tied To Iraq

2007-04-10T16:27:00.000-06:00

By almost a two to one margin, 61% to 34%, Americans do not believe that U.S. security is tied to "success" in Iraq. The Public Agenda Confidence in U.S. Foreign Policy Index released by Foreign Affairs shows that the worm has turned. Americans have stopped believing Bush, Cheney and all their dissembling flunkies who try to govern by fear. Yes there still are a few dead enders, those pitiful few who would follow Bush off the nearest cliff. But their numbers are dwindling. More and more people are coming to their senses.

And this poll has more good news. Seventy percent believe we should pull out of Iraq within twelve months. Moreover, nineteen of those seventy percent think we should withdraw immediately. Only 27% think we should "stay for as long as it takes to stabilize the country."

Isn't that interesting. Even though 34% say they believe our security is tied to success in Iraq only 27% think we should stay as long as it takes. Could it be that the 34% number is really pretty soft and that it is going to slip further as the Iraq fustercluck continues to degenerate.

This data seems to clearly indicate that Americans are shedding their sheep's clothing. They are refusing to be bamboozled by nonsensical assertions of the need to fight them there so that we don't have to fight them here. They also are understanding something more basic.

The only Iraq war we could have won was finished in April 2003. From that point on there was nothing for us to win. All we could do was become an occupying force, sow the seeds of discontent, and feed the fires of sectarian strife. And boy have we succeeded at that. Of course, everything that transpired after April 2003 was a direct consequence of our having started this boneheaded and illegal war. So a victory of any stripe was never a possibility.

The Air Force Won't Protect Its Own Against Blackwater Employees

2007-04-06T15:41:00.000-06:00

You know that outsourcing of the government, AKA "privatization," has gone too far when the military can't even stand up to the contractors who seek retribution against military personnel. As reported by the Virginia-Pilot two Air Force Colonels were reprimanded for ruffling the feathers of Jimmy Bergeron, a Blackwater employee, following a traffic accident involving the Colonels and Bergeron in Kabul, Afghanistan. The two Colonels, Christopher Hall and Gary Brown, were reprimanded even though the officer that investigated the incident and took testimony from the witnesses, ruled that the Colonels followed all the rules of engagement. The investigating officer recommended that all charges be dropped.

How could that be? Well, could it be that Blackwater had something to do with it? The reprimands were issued by Lt Gen. Gary North, Commander of the 9th Air Force. When the Colonels received word of the reprimands,

Brown's civilian attorney has fired back with an angry letter, calling the sanctions a "laugh-out-loud joke" and suggesting that the general bowed to pressure from Blackwater, a private military company based in Moyock, N.C.

There is no doubt that a confrontation occurred. But,

At a hearing in February, Brown and Hall testified that Bergeron behaved aggressively and that they feared he was a suicide bomber.

The investigating officer who heard their testimony concluded that they properly followed the rules of engagement and recommended that the charges be dropped.

In a letter to North on Wednesday, Charles Gittins, Brown's civilian attorney, wrote that the reprimand flies in the face of the investigating officer's findings and "demonstrates your lack of moral courage to admit error and do the right thing:... apologize to two officers who were needlessly and without reason subjected to personal humiliation and torment...."

When an officer receives a reprimand of this sort it can be death to his career. Has the contracting community become so powerful that the military will not even protect its own? It would seem so. But it is also clear that this is not the end of the story. According to one of the Colonels' lawyers

"attempts were made to frame my client." He referred to the investigating officer's report that Afghan security guards who witnessed the confrontation said they were offered bribes to give false testimony about it.

The Air Force is investigating the allegations.

It's bad enough that the taxpayers get robbed when we outsource essential government functions. It is bad enough that the people who work for private contractors are often shortchanged on benefits and basic employee protections. And it is disgusting to see these private contractors pay obscene sums to their senior management. But have they gotten so powerful that even the United States military doesn't have the ability or will to stand up to them? If so, this does not portend well for the future.

Global War On Terror Is Dead - Neocons Weep

2007-04-05T16:47:00.000-06:00

The Neocon dreams for a never ending global conflict to replace the Cold War is dying, and in some places it is already dead. The House Armed Services Committee has banished the term "Global War on Terror" from the 2008 Defense Budget, and while they are at it they also banned Mr. GWOT's kissing cousin, the "Long War." As reported by the Army Times

A memo for the committee staff, circulated March 27, says the 2008 bill and its accompanying explanatory report that will set defense policy should be specific about military operations and “avoid using colloquialisms.”

. . . . . . . . . .

Committee staff members are told in the memo to use specific references to specific operations instead of the Bush administration’s catch phrases. The memo, written by Staff Director Erin Conaton, provides examples of acceptable phrases, such as “the war in Iraq,” the “war in Afghanistan, “operations in the Horn of Africa” or “ongoing military operations throughout the world.”

Now we all know there is much more to this than a few innocent words. Sure, Committee staff said that there was no political motive behind the move but the Republicans aren't buying it. Duncan Hunter, the ranking Republican and ex-Chairman of the Committee, said he was not consulted and Republican staff see the issue in starkly political terms

“This is a philosophical and political question,” said a Republican aide. “Republicans generally believe that by fighting the war on terror in Iraq, we are preventing terrorists from spreading elsewhere and are keeping them engaged so they are not attacking us at home.”

Of course, as the Army Times points out

. . . . U.S. intelligence officials have been telling Congress that most of the violence in Iraq is the result of sectarian strife and not directly linked to terrorists, although some foreign insurgents with ties to terrorist groups have been helping to fuel the fighting.

This is one more step toward returning sanity to our country. But the Neocons won't let go without a fight. During the nineties, the Neocons really missed the Cold war. Every great country needs an enemy and the bigger the enemy the better. Heck, if you don't have a big threatening enemy how is anyone going to know how great you are. And more importantly, if you don't have a big enemy to keep the voters in constant fear how can you hope to stay in power and enrich your friends with a continuous feeding frenzy at the public trough.

Zbigniew Brzezinski wrote an excellent article in the Washington Post which is a must read on this topic. He speaks about how Bush's War on Terror has been deliberately used to create a culture of fear. While many of us have ridiculed the entire concept of waging war on a tactic, or even worse, a noun, Zbig points out why the phrase is cherished by the Neocons

But the little secret here may be that the vagueness of the phrase was deliberately (or instinctively) calculated by its sponsors. Constant reference to a "war on terror" did accomplish one major objective: It stimulated the emergence of a culture of fear. Fear obscures reason, intensifies emotions and makes it easier for demagogic politicians to mobilize the public on behalf of the policies they want to pursue. The war of choice in Iraq could never have gained the congressional support it got without the psychological linkage between the shock of 9/11 and the postulated existence of Iraqi weapons of mass destruction. Support for President Bush in the 2004 elections was also mobilized in part by the notion that "a nation at war" does not change its commander in chief in midstream. The sense of a pervasive but otherwise imprecise danger was thus channeled in a politically expedient direction by the mobilizing appeal of being "at war."

The House Armed Services Committee, Chaired by a wonderful man from Missouri, Ike Skelton, has taken a step toward returning our country to normalcy. A country where we don't manufacture threats or exaggerate dangers. A country whose leader does not terrorize its citizens but rather comforts and assures them. Removing these four words from our lexicon is a good step toward that goal.

Another Worst Of The Worst Is Freed Without Charges

2007-04-03T11:53:00.000-06:00

The Independent reports that Bisher al-Rawi will be released from Guantanamo and returned to England, where he had lived for sixteen years before being interned in America's Shame, also known as Guantanamo.

So why is this man who fled Iraq with his family in the early eighties to escape Saddam's regime finally being released without any charges having been brought against him? Well it appears the British government has finally stopped their foot dragging on his case because they are embarrassed that Mr al-Rawi used to do work for MI-5, the British Intelligence Service, and that MI-5 was responsible for his arrest.

For many years the British Government had refused to help Mr Rawi and the eight other British residents still held by the Americans at the US naval base in Cuba because they did not have the same legal status as UK nationals.
. . . . . . . .

He said he thought the decision to help Mr Rawi was only taken because the Government did not want an embarrassing court case in which Britain's involvement in his capture would have been made public.

The High Court in London has already permitted the disclosure of classified documents linking MI5 to Mr Rawl's arrest.

Mr Katznelson said: "Mr Rawi helped MI5 as an interpreter and acted as a go-between with Abu Qatada [a terror suspect later arrested and detained by the British authorities]. All this would have... been very embarrassing for the government and... MI5."

Isn't that interesting? The British government sits on the sidelines for five years while Mr. al-Rawi rots in Guantanamo and only engineers his release after a court rules that information will be disclosed regarding the involvement of MI-5 in both his capture and in his prior work for the agency. And while the British shame is bad enough, it pales compared to ours. After all, we are the jailers, the torturers and the premier human rights hypocrites in the world.

Now we all know that the Guantanamo detainees are the worst of the worst. We know that with certainty because the President said so. Lets see just how bad Mr. al-Rawi is. We pick up his life after escaping Iraq -

Mr Rawi's lived with his mother, brother and sister in south London for 16 years. He was arrested in the Gambia, along with his brother, Wahab, and business partners, Jamil el-Banna and Abdullah el-Ganudi. Wahab and Mr Ganudi were both released because they were British citizens. Bisher and Mr Banna, who could only claim British residency, were taken by the Americans to Bagram airbase and then Guantanamo Bay.

Bisher and Wahab, 41, moved to Britain in the 1980s after their father fell under the suspicion of Saddam Hussein. They first lived in Cambridge, where they took their O-levels, before continuing their schooling at Millfield School, Somerset, and Concord College, Shropshire. They later attended separate universities.

In 1992 Wahab took British nationality while his brother decided to retain his Iraqi citizenship as he did not want to damage his ties with his home country.

But it was Wahab's business interests that took the two brothers to the Gambia in November 2002.

He told The Independent last year: "I had this business idea for a mobile peanut-oil processing factory. I had done the feasibility study; it was all ready to go. I had my team and we brought Bisher in on the deal towards the end."

Four days after his arrival in Gambia, Wahab went to Banjul airport to meet his brother and the other two men.

As Wahab approached his brother he became aware of a problem with immigration. Gambian officials had confiscated their passports and they were being taken to an interview room.

For the next three to four days the four men were moved around the Gambian National Intelligence Agency (NIA), alternately questioned by Americans and Gambians.

Four days after Wahab had met Bisher at the airport, they were taken from the NIA headquarters to a secret location in the Banjul suburbs. It was here that Bisher begged his brother to co-operate with the Americans because "we have nothing to hide".

Mr Ganudi and Wahab were separated from the other two and taken back to interrogation suites in the NIA building where the Americans began repeating the questions. A few days later they were told they could fly back to Britain. The other two were transferred to Guantanamo Bay.

Their lawyers allege that they have been tortured by guards and deprived of basic necessities during their five-year ordeal.

So here you have a guy who fled Saddam's persecution and started a new life with his family in England. His brother became a British citizen but he decided to keep his Iraqi nationality. He goes on a business trip with his brother to that hotbed of terrorism, Gambia, and ends up spending five years in prison in Guantanamo.

This man is so dangerous that he could not be given the minimal requirements of due process. He was such a threat that if he had been granted rights such as, seeing the charges against him, having a trial before an impartial judge and jury, and being able to confront witnesses, all within, say, three months of his capture, our way of life would have been put at risk.

As time passes it has become indisputable this case is the rule rather than the exception for America's Shame. The only unusual aspect of Mr. al-Rawi's case is that also reveals a stain on the British government.