Update from the Heartland
No.307
22.10.07 – 28.10.07
Blog version: http://heartlandupdate.blogspot.com/
No.307
22.10.07 – 28.10.07
Blog version: http://heartlandupdate.blogspot.com/
To all,
The follow-up news items:
-- The President of the United States of America awarded the Medal of Honor posthumously to the parents of SEAL Lieutenant Michael P. Murphy, USN, of Patchogue, New York, "for conspicuous gallantry and intrepidity at the risk of his life, above and beyond the call of duty, as the leader of a special reconnaissance element with Naval Special Warfare Task Unit Afghanistan on 27 and 28 June 2005." May God bless his immortal soul.
-- The devastating wildfires in Southern California and historic evacuation of residents dominated the broadcast news this week. Public announcements of the investigative involvement of the FBI and ATF add a chilling pawl over the tragedy, and portend the ugly prospect of al-Qaeda action. Causing wildfires as a terror weapon of war is hardly a new idea. Imperial Japan achieved some success launching incendiary balloons across the Pacific Ocean in the latter stages of the war.
-- The Airbus A380, double-decker, super-jumbo jet made its maiden commercial flight on Thursday – Singapore Airlines carried 455 passengers from Singapore to Sydney, Australia. The A380 is an incredible accomplishment and feat of engineering. Congratulations to the Airbus consortium.
-- Monday’s Washington Post presented some interesting points regarding H.R. 3321 [306] and the telecommunications immunity provisions.
“Immunity for Telecoms May Set Bad Precedent, Legal Scholars Say – Retroactive Protection Could Create Problems in the Future”
by Dan Eggen
Washington Post Staff Writer
Monday, October 22, 2007; Page A05
http://letters.washingtonpost.com/W9RH014D013CB059C0E39367EBAD70
The essential concern is precedent, i.e., allowing the potential misdeeds of non-governmental agencies to be retrospectively protected by the government, thus allowing the government to cover its tracks. In the main and as a question of principle, I agree. However, in the two areas noted, we are talking about the ability of the President to “wage war successfully” in accordance with Article II of the Constitution. We have discussed several of the vanguard court cases that threaten companies and/or agencies acting in support of the government’s efforts in the War on Islamic Fascism.
Sosa v. Alvarez-Machain [542 U.S. 692 (2004)] (No. 03-339) [289]
ACLU v. NSA [USDC EDMI Case No. 06-CV-10204] [245]
ACLU v. Jeppesen DataPlan, Inc. [289]
Doe v. Gonzales [USDC, SDNY 04 Civ. 2614 (VM) {2007}] [301]
Mayfield v. United States [USDC DO civil no. 04-1427-AA] [303]
The trend is quite clear and becomes painfully obvious when you read these cases. I could add all the detainee habeas corpus cases, but I think the point is clear enough. Continued litigation of and judging the Executive’s warfighting capability in public court serves only one immediate purpose – aiding the enemy. We can make the necessary corrections once the war is won, but this is not helpful. Thus, I believe the immunity provisions of H.R. 3321 are appropriate and the precedent risk is acceptable.
-- CBS’s 60 Minutes interviewed former CIA operative Valerie Plame Wilson, a week ago Sunday. As she stated, now it is her turn to speak, as she plugged her new exposé book.
“FAIR GAME – My Life as a Spy, My Betrayal by the White House”
by Valerie Plame Wilson
Simon & Schuster, 411 pp.
I listened to the interview intently and found her to be generally credible, articulate, and convincing. The fact that her husband, former ambassador Joe Wilson, chose the public political venue to confront President Bush and his administration drew into the question the quasi-official tasking allegedly authorizing Joe Wilson to make the trip to Niger and report on his findings. It is that tasking that is the fishy part of this whole episode and the salient question of this kerfuffle. Was the outing of CIA agent Plame wrong; sure, of course. However, once Wilson made his report public and especially his link to the CIA, the whole genesis turned open and indeed became “fair game.” Whatever dialogue took place internal to the CIA during that tasking discussion and the choice of Wilson to make the trip, they should have known, understood and dealt with the potential political aspects. In short, Wilson was NOT the only choice for such a tasking, i.e., if there was a decision internal to the CIA, then that decision was made for political rather than intelligence reasons, in my humble opinion. So, while I have some empathy for Plame, I find her argument regarding the critical question to be weak, shallow and otherwise unconvincing.
-- The trial of the Phelps clan and their disrespectful endeavors has begun. [235] Albert Snyder of York, Pennsylvania, filed a civil suit seeking unspecified damages from the Westboro Baptist Church of Topeka, Kansas. Shirley Phelps-Rogers and Rebecca Phelps-Davis, daughters of patriarch Fred Phelps, testified in defense of their funeral protest tactics. U.S. District Judge Richard Bennett is presiding.
-- The Georgia state supreme court rejected the excessive sentence for Genarlow Wilson [288] – the young man convicted of having oral sex with a consensual girl two years his junior (both were minors at the event time). Chief Justice Leah Ward Sears wrote, "[A]t the time Wilson committed his offense, a fifty-year-old man who fondled a five year-old girl for his sexual gratification could receive as little as five years in prison, and a person who beat, choked, and forcibly raped a woman against her will could be sentenced to ten years in prison. There can be no legitimate dispute that the foregoing crimes are far more serious and disruptive of the social order than a teenager receiving oral sex from another willing teenager." The court ruled the sentence was excessive violated the 8th Amendment against “cruel and unusual punishment,” and ordered him released from prison. More on this case below.
If the only news source you had access to was television, you might be led to believe that fundamentalist evangelical Christians were the core and leadership of the Republican Party and hard-core socialists control the Democratic Party. Other than some of the candidates, we hear so little from the moderate voices within either party. Moderates rarely offer sensational news; they usually seek compromise. One among many reasons every citizen should absorb multiple and varied sources of information, so that well-informed decisions can be rendered.
With the agonizing, apparently never-ending, presidential campaign process and the various candidate debates, the latest rendition (happened to be Republican, where abortion features more prominently in the topic list) reminds me about the critical issues we face as a Nation and society. The War is an obvious, if not the paramount, issue before us in selecting our next president. Yet, with all the howling about abortion being the deciding factor by the various, fundamentalist Christian, talking heads professing divine conductivity, abortion is rising on the list of selection criteria. We can call it many names, or label it by its many reflections, but to me the issue boils down the citizen versus the State. The Republican Party has become so inundated and controlled by Christian activists, bent upon their agenda, that party has taken on a big government, big spending, Federalist, Big Brother image. I, for one, continue to advocate for removal and strong restrictions upon the State’s penetration of our private lives and impositions on our freedom of choice. The pandering to the Christian uber-Right that we continue to witness is not a successful path, in my humble opinion. So much of this societal conflict could be eliminated if we just respected the privacy, the rights & choices, of every citizen, rather than endeavor to impose our beliefs, our choices, or our will upon other citizens. I have a lot more faith in the American citizen than perhaps some of our brethren do. I wonder if we will ever have the capacity to learn and appreciate what freedom truly means.
An opinion column in our local newspaper sparked me to punch the keys.
“Concerns about gays not new for churches”
by Brent Castillo
Wichita Eagle
Published: Thursday, 18.October.2007.
Brent,
I offer my congratulations and appreciation for your “Concerns” opinion article as well as your continuing efforts to communicate Christian and moral issues. The essential point . . . you said, “Christians shouldn’t ostracize people with whom they disagree. Jesus didn’t.” Indeed!
Religion has been a vital moral compass for humanity, as it should be. I am neither a theologian nor an expert on religion, and yet as a lay student of all religions, I can recognize goodness as well as error.
You note that some Christians, perhaps most, feel that the alleged “gay lobby” is “overreaching.” Is it overreaching for any human being to expect to be treated with dignity, respect and equality under the law? The Kansas marriage amendment, and in fact the defense of marriage initiative nationally, denies equal protection under the law for a portion of our community, our society. I acknowledge the right of every citizen to their personal beliefs, views, opinions or ideas . . . as long as those beliefs do not cause harm to anyone else, and they do not try to impose their beliefs upon me. That is why I objected to and voted against the marriage amendment; it is bad law. Votes are not opinion polls; they are statements of law by We, the People. What you may perceive as a so-called “gay lobby” is actually oppressed citizens speaking out for recognition of their rights as responsible, productive, law-abiding citizens.
Sexual orientation and gender identity are predominately, if not totally, private attributes or characteristics. A citizen’s private choices come to public awareness with such simple, common, normal activities like hospital room visits, medical benefits, tax rates, ad infinitum. You stated, “[M]ost Christians don’t care to know with whom you sleep” – a nice statement but hardly reflective of reality. Those same Christians are quite content to advocate for, endorse, and pass laws condemning the private choices of other citizens and deny equal protection of the law for those citizens with whom they disagree, or with whom they disapprove of another citizen’s exercise of their freedom of choice.
I have no idea whether you know any homosexual citizens or can claim a homosexual friend who is comfortable confiding in you. Perhaps you do not care about those citizens that we discriminate against in public life. Your purposes might be well-served if you attempted to understand the consequences of your advocacy upon whom our moral projection and discrimination bites so painfully.
Each and every citizen of this Grand Republic is, or should be, guaranteed their liberty, their freedom of choice, and the protection of the law for their privacy. Every citizen also has the guaranteed right to assemble with other citizens with whom they agree or have an affinity. Our constitutional freedom of speech allows us to espouse our beliefs in any public forum. Where we go dreadfully wrong surfaces when we seek to impose our beliefs upon all citizens, and dictate the allowable private choices of every citizen where any proper State interest is weak to non-existent.
We must find the common ground upon which we can separate public and private conduct, and respect the private choices of other citizens with whom we disagree. Our focus must be on public conduct, rather than private choices.
Cheers,
Cap
As is so often the case with me, along comes an instigating incendiary article:
"The War for the Constitution"
by Gary L. McDowell
Wall Street Journal
Published: 23.October.2007; Page A19
First, we had the war on religion, and then the culture wars, and now the war for the Constitution. We seem to have forgotten the War on Islamic Fascism -- the only real war in the bunch – but, that is another story. The McDowell article remembered the destructive confirmation process and hearings for Supreme Court nominee Judge Robert Heron Bork, 20 years ago, in order to make a point about the selection of justices. The conflagration of Judge Bork's confirmation process represents the challenge the United States faces regarding the Supremes and their rulings, however, it was Bork’s view of proper jurisprudence that draws my ire. As McDowell reported, "Mr. Bork's belief was that judges and justices in their interpretations of the Constitution must be bound to the original intentions of its framers. In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as 'any mysterious and uncertain natural law concept.' For Mr. Bork, the framers said what they meant, and meant what they said." Here is the essence of constitutional law and the importance of the Supremes’ jurisprudence. Intellectually, Judge Bork has a logically persuasive argument. Despite my lack of any legal credentials to debate Bob Bork on constitutional law and with all due respect, I disagree – strongly. What is missing in Bork's reasoning is the context of society as it evolves, i.e., society evolves, the Constitution does not. Judge Bork insists that as society changes, the Legislative branch must alter the Constitution by the established process rather than judges doing so be judicial fiat. My understanding of Judge Bork’s jurisprudence opinions indicates that his strict interpretation of the Constitution means an American citizen has NO rights against the government expect those explicitly defined by the Constitution. If the Supremes adopted or maintained Bork's fundamentalist approach, we would probably still have a significant portion of our society in slavery, inter-racial marriage would be prohibited, non-heterosexuals would be persecuted, female citizens would deed their bodies to the State, and We, the People, would have no protection from the intimately intrusive, near-omnipresent, pervasive, Federal government – vastly more powerful than any human being could imagine in 1787. When the Constitution was framed, the reach of the government compared to the autonomy of the individual citizen was vastly different -- the context within which the Constitution must be interpreted. The common analogy that returns like a sunrise relates the difference between Air Force and Army pilots, and Navy and Marine pilots. The former see the rules as what is allowed (i.e., if it is not expressly allowed, then it must be prohibited), while the latter group views the rules as only that which is prohibited (i.e., if it is not prohibited, then it must be allowed.); huge difference in the approach to the military flying task. So it is with Bork-esque judges/justices; if is not written as applied to the People, the right belongs to the government. Why did the Founders of this Grand Republic and specifically the framers of the Constitution begin the preamble with “We, the People,” in prominent bold letters, larger than all the other letters? Why did they write the 9th and 10th Amendments? Were they simply trying to placate the populous, or were they testing us to see if we were paying attention to the process? Just a reminder for those who may not recall and for those subscribers who are not citizens of the United States:
9th Amendment:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
10th Amendment:
“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.”
[emphasis added]
I continue to struggle with why the words “by the people” and “to the people” are so difficult for judges to understand. The oddity in Bork’s argument . . . he strictly interprets the words in one case, and specifically ignores the words in another, i.e., he apparently believes there are no fundamental rights beyond the Constitution since they are not defined and the 9th Amendment is too vague to interpret, and yet, chooses to constrain the words of the 14th Amendment to only the context in which they were written even though there are no such constraints defined. Nonetheless, in my humble opinion, Judge Bork and the other strict, fundamental constructionists fail to recognize the most basic, foundational, and obvious root of the Constitution itself – all power granted to government (Federal, state and local) comes from We, the People, and as Abraham Lincoln so eloquently said, “that government of the people, by the people, and for the people, shall not perish from the earth.” (emphasis added) I suppose they do not like the ambiguity of freedom. As such, I do not care much about and I am not impressed with, the legal scholarship of strict constructionists like Bob Bork; freedom from an oppressive government is in the very roots of the Liberty Tree that sustains us – the tree that begat the Constitution and the Declaration. The salient and most elemental portion of this argument is that the government (Legislative, Judicial and Executive) does NOT possess the authority to extend the reach of the law beyond the public domain, except where the proper public interests of the State and the protection of every citizen’s individual rights are concerned. We have acquiesced for too many years, and suffered far too many abuses upon our rights “retained by the People.” Bork’s rigid, fundamental ‘translation’ of the Constitution dramatically favors Federalism and the status quo, and as a consequence, seems to assume the goodness of mankind as the only point of salvation. On the flip side of this argument, the line between reasonable contextual interpretation of the Constitution and judicial fiat is quite thin and fickle, which leaves that particular positional determination subject to human error . . . thus, Judge Bork’s apprehension. As stated earlier, I believe Judge Bork is wrong; I believe the framers sought a balance between the federal and state governments as well as with the people – liberty and freedom were powerful influences in the construction of the Constitution. Judge Bork’s fundamentalist jurisprudence would seriously upset that balance. As a concerned citizen, I am thankful Bob Bork was not confirmed, although I am saddened by the tragically, injurious, confirmation process that he endured. Senate Rollcall vote number 348 of the 100th Congress (23.10.87) was 42-58-0, rejecting President Reagan’s nomination of Judge Bork. While some folks remember the trauma of Judge Bork’s nomination, I celebrate dodging the bullet. Judges and justices are ordinary human beings and do not possess any divine anointment; they do their best to interpret the law and dispense justice, but they are only human, and they make mistakes and commit errors. My criterion for a good Supreme Court justice is actually quite simple – an accomplished legal scholar who understands the very essence of this Grand Republic and the ultimate well-spring – We, the People. Bob Bork is not one of those; and I am thankful some judges believe in We, the People.
I am reminded of an odd little Supreme Court ruling that illustrates the absurdity of the Federalists and strict constructionists. In the case of U.S. v. Bhagat Singh Thind [261 U.S. 204 (1923)], Associate Justice George Sutherland, writing for the Court, affirmed a racial-based exclusion of access for immigration. The rationale reads like a judicial treatise on eugenics, under the dark shadows of a far more onerous episode in human history, soon to follow the Thind ruling. While Sutherland did not utilize an argument similar to or reflective of the strict fundamental constructionists like Bork, Thomas and Scalia, the essence of the reasoning is present, i.e., the people possess no rights other those defined by the strict, literal, interpretation of the Constitution, and associated law allowed by the Constitution. To the Thind Court, racial classification was a common, normal, and constitutionally acceptable characteristic upon which to base the law. These guys are not perfect or infallible. Even the venerable and renowned Associate Justice Oliver Wendell Holmes would not measure-up. In Buck v. Bell [274 U.S. 200 (1927)], Holmes extended the 14th Amendment Due Process and Equal Protection Clauses far beyond the racial instigator, when he sided with the State in a involuntary sterilization of a seriously incapacitated young woman and ward of the State of Virginia. Bork et al would not be pleased. I remember some of these cases when either side rattles the saber in their attempt to push nominations to one extreme or another. The timely and fortuitous decision in Genarlow Wilson v. State of Georgia [SCGA S07A1606] noted above gives us a more contemporary view. The dissenting opinion of Associate Justice George H. Carley Sr. provides a brilliant illumination of the challenge we face with every judge and every decision. Carley admonished the majority for ignoring the will and wisdom of the legislature over a citizen's right of protection from an oppressive government. This is the point -- who is supreme, the government or the People?
A case, as incredibly human as it is shocking, comes to us from Essex, England.
“Should the Court of Appeal allow Katie Thorpe's womb to be removed? -- A mother’s request to doctors to perform a hysterectomy on her disabled teenager will test the ethics of medical intervention”
by Frances Gibb
The Times Legal Editor
The Times (of London)
October 18, 2007
http://timesonline-emails.co.uk/go.asp?/bTNL001/mT9OIC4/qK0X9C4/uNSC46/xAI8S01
Katie, the 15-year-old daughter of Alison Thorpe, suffers from cerebral palsy, and reportedly has the mental capacity of an 18-month-old child. Alison seeks a hysterectomy for her daughter to avoid the trauma of menstruation. The ethical challenge of such cases is staggering. Katie is hardly capable of making an informed consent. And, it could be argued that pregnancy by whatever means would not be healthy for ‘mother’ or child. The English court now sits in judgment of the case. In this case, the decision belongs to the parent(s) or medical guardian, and presumably several medical doctors support such a procedure. I cannot deny the adverse images of a day gone by, and yet beyond my biases, I can see a degree of humanity in Alison’s decision on behalf of her daughter. The choice is largely private and personal to the family, and once the State’s interest is satisfied to ensure no one is being abused or harmed, the decision should remain with the family. The judgment of the court should be an interesting read for a host of reasons.
Comments and contributions from Update no.306:
"I'm part Irish and I want someone to apologize for the way the Irish were treated in the country in the late 19th and early 20th Centuries. "No Dogs or Irish Allowed" and all that.
"Yeah, Brownback planning to apologize for slavery is BS. Did he forget that the United States lost 600,000 people in a war that ended slavery? Did he also forget about John Brown's uprising to end slavery, which I believe occurred in Kansas. I can't hack when people apologize on my behalf for stuff I never did. What an idiot.
"Now if only Ron Paul will walk into the Reality Universe and drop out. That'll make me happy."
My reply:
Ron Paul has the right idea in many areas, but he is so extreme in other important ones. You were correct about John Brown and Kansas, but Brown's most famous incident was Harper's Ferry, Virginia, where he crossed paths with Lieutenant Colonel Robert E. Lee, USA.
Another contribution:
"Wow, 306 is quite a mouthful.
"I regret that I cannot (or more accurately, do not...) take time to read all your offerings, all of which I accept as worthy of consideration and appreciation.
"Let me just suggest that if there were ever a more glaring confirmation of the need for a formal declaration of war than the multiple thoughts in your 306th, I have not read it. We need to figure out how to DO IT! At the very least, our inarticulate President could ask for it and let the Congress figure out how to do it. I know, it is naive of me to think that this could occur...
"Secondly, I do not believe in "hate crime" and suggest that you should not perpetuate this stupid result of the political correctness disease that has made all other epidemics in this country seem minor by comparison.
"Finally, although there are other matters that need response, I suggest that in view of any dispassionate view of history and any sane view of Islam, we not only would be foolish to bring up Armenian abuse but would be infinitely better off embracing the Turks on every available level and strengthening our relationship with the citizens of that remarkably capable ally. I am peripherally involved with the International Interfaith Dialogue, begun and perpetuated by Turkish Muslims with increasing cooperation from all but the most narrow-minded Christian, Jewish, Buddhist, Hindu, and other religious communities in the southeast (and maybe elsewhere in this country and certainly elsewhere in the world). IID is one wonderfully apolitical effort to bring about peace through one-on-one human contact among people of differing faiths. Regardless of one's pessimism about religions in general, and I have a lot of it, one cannot ignore the relatively friendly basis for this and other means of cultivating ties with Turkey. We need friends in the region. Israel is not a big enough friend, although I admire its spunk, and who needs enemies when the Saudies are handy."
Another contributor added to the thread:
"I cannot speak personally to the problems between Turks and Kurds in Northern Iraq. And I think maybe the Kurds are decent people. Long trampled on by Saddam when he was alive and in Command. BUT---Turkey has been an Ally for Many years. I'd hate to see us throw that country to the wind without super good reason.
"I personally have never been able to see Religion, and so differences in beliefs, as a reason for peoples to go to war. But certainly that has been the case over and over during recorded History. I do not understand. I say let anyone believe anything they want, so long as they do not hurt their neighbor."
My response:
We have discussed the declaration of war topic many times. We are in violent agreement. With the election a year away, I can see no sliver of hope something as necessary and proper as a declaration of war happening, unless, God forbid, another serious Homeland attack is successful. I think we have what we have.
My support of “hate crimes” legislation is not motivated by political correctness; far from it. My motive is quite simple – equal protection under the law for all citizens regardless of the social factors. I am not a fan of political correctness, although I was an unwitting purveyor for a few years, and I do not espouse such things. I am an advocate for Federal protection for abused classes of citizens, since the states are often quite comfortable discriminating against some citizens based on perceived, private, moral grounds. When local and state law fails to protect citizens from abuse, discrimination and violence simply because of their perceived private activities, Federal protection is required. When such abuse ends, the government can repeal “hate crimes” law – “equal protection” will be available to all citizens, not just the self-anointed. I would like to hear more about your objection to “hate crimes” laws.
I like your “International Interfaith Dialogue.” So much of war, conflict and argument stems from ignorance and lack of understanding. Religious intolerance and parochialism is probably the single greatest spark and accelerant of human conflict in recorded history. Anything to dampen that theological zealotry and bigotry is a positive action. Communication is quite often the preferred remedy for such ignorance between individuals as well as groups of human beings. Turkey has been a good ally for many decades.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
The follow-up news items:
-- The President of the United States of America awarded the Medal of Honor posthumously to the parents of SEAL Lieutenant Michael P. Murphy, USN, of Patchogue, New York, "for conspicuous gallantry and intrepidity at the risk of his life, above and beyond the call of duty, as the leader of a special reconnaissance element with Naval Special Warfare Task Unit Afghanistan on 27 and 28 June 2005." May God bless his immortal soul.
-- The devastating wildfires in Southern California and historic evacuation of residents dominated the broadcast news this week. Public announcements of the investigative involvement of the FBI and ATF add a chilling pawl over the tragedy, and portend the ugly prospect of al-Qaeda action. Causing wildfires as a terror weapon of war is hardly a new idea. Imperial Japan achieved some success launching incendiary balloons across the Pacific Ocean in the latter stages of the war.
-- The Airbus A380, double-decker, super-jumbo jet made its maiden commercial flight on Thursday – Singapore Airlines carried 455 passengers from Singapore to Sydney, Australia. The A380 is an incredible accomplishment and feat of engineering. Congratulations to the Airbus consortium.
-- Monday’s Washington Post presented some interesting points regarding H.R. 3321 [306] and the telecommunications immunity provisions.
“Immunity for Telecoms May Set Bad Precedent, Legal Scholars Say – Retroactive Protection Could Create Problems in the Future”
by Dan Eggen
Washington Post Staff Writer
Monday, October 22, 2007; Page A05
http://letters.washingtonpost.com/W9RH014D013CB059C0E39367EBAD70
The essential concern is precedent, i.e., allowing the potential misdeeds of non-governmental agencies to be retrospectively protected by the government, thus allowing the government to cover its tracks. In the main and as a question of principle, I agree. However, in the two areas noted, we are talking about the ability of the President to “wage war successfully” in accordance with Article II of the Constitution. We have discussed several of the vanguard court cases that threaten companies and/or agencies acting in support of the government’s efforts in the War on Islamic Fascism.
Sosa v. Alvarez-Machain [542 U.S. 692 (2004)] (No. 03-339) [289]
ACLU v. NSA [USDC EDMI Case No. 06-CV-10204] [245]
ACLU v. Jeppesen DataPlan, Inc. [289]
Doe v. Gonzales [USDC, SDNY 04 Civ. 2614 (VM) {2007}] [301]
Mayfield v. United States [USDC DO civil no. 04-1427-AA] [303]
The trend is quite clear and becomes painfully obvious when you read these cases. I could add all the detainee habeas corpus cases, but I think the point is clear enough. Continued litigation of and judging the Executive’s warfighting capability in public court serves only one immediate purpose – aiding the enemy. We can make the necessary corrections once the war is won, but this is not helpful. Thus, I believe the immunity provisions of H.R. 3321 are appropriate and the precedent risk is acceptable.
-- CBS’s 60 Minutes interviewed former CIA operative Valerie Plame Wilson, a week ago Sunday. As she stated, now it is her turn to speak, as she plugged her new exposé book.
“FAIR GAME – My Life as a Spy, My Betrayal by the White House”
by Valerie Plame Wilson
Simon & Schuster, 411 pp.
I listened to the interview intently and found her to be generally credible, articulate, and convincing. The fact that her husband, former ambassador Joe Wilson, chose the public political venue to confront President Bush and his administration drew into the question the quasi-official tasking allegedly authorizing Joe Wilson to make the trip to Niger and report on his findings. It is that tasking that is the fishy part of this whole episode and the salient question of this kerfuffle. Was the outing of CIA agent Plame wrong; sure, of course. However, once Wilson made his report public and especially his link to the CIA, the whole genesis turned open and indeed became “fair game.” Whatever dialogue took place internal to the CIA during that tasking discussion and the choice of Wilson to make the trip, they should have known, understood and dealt with the potential political aspects. In short, Wilson was NOT the only choice for such a tasking, i.e., if there was a decision internal to the CIA, then that decision was made for political rather than intelligence reasons, in my humble opinion. So, while I have some empathy for Plame, I find her argument regarding the critical question to be weak, shallow and otherwise unconvincing.
-- The trial of the Phelps clan and their disrespectful endeavors has begun. [235] Albert Snyder of York, Pennsylvania, filed a civil suit seeking unspecified damages from the Westboro Baptist Church of Topeka, Kansas. Shirley Phelps-Rogers and Rebecca Phelps-Davis, daughters of patriarch Fred Phelps, testified in defense of their funeral protest tactics. U.S. District Judge Richard Bennett is presiding.
-- The Georgia state supreme court rejected the excessive sentence for Genarlow Wilson [288] – the young man convicted of having oral sex with a consensual girl two years his junior (both were minors at the event time). Chief Justice Leah Ward Sears wrote, "[A]t the time Wilson committed his offense, a fifty-year-old man who fondled a five year-old girl for his sexual gratification could receive as little as five years in prison, and a person who beat, choked, and forcibly raped a woman against her will could be sentenced to ten years in prison. There can be no legitimate dispute that the foregoing crimes are far more serious and disruptive of the social order than a teenager receiving oral sex from another willing teenager." The court ruled the sentence was excessive violated the 8th Amendment against “cruel and unusual punishment,” and ordered him released from prison. More on this case below.
If the only news source you had access to was television, you might be led to believe that fundamentalist evangelical Christians were the core and leadership of the Republican Party and hard-core socialists control the Democratic Party. Other than some of the candidates, we hear so little from the moderate voices within either party. Moderates rarely offer sensational news; they usually seek compromise. One among many reasons every citizen should absorb multiple and varied sources of information, so that well-informed decisions can be rendered.
With the agonizing, apparently never-ending, presidential campaign process and the various candidate debates, the latest rendition (happened to be Republican, where abortion features more prominently in the topic list) reminds me about the critical issues we face as a Nation and society. The War is an obvious, if not the paramount, issue before us in selecting our next president. Yet, with all the howling about abortion being the deciding factor by the various, fundamentalist Christian, talking heads professing divine conductivity, abortion is rising on the list of selection criteria. We can call it many names, or label it by its many reflections, but to me the issue boils down the citizen versus the State. The Republican Party has become so inundated and controlled by Christian activists, bent upon their agenda, that party has taken on a big government, big spending, Federalist, Big Brother image. I, for one, continue to advocate for removal and strong restrictions upon the State’s penetration of our private lives and impositions on our freedom of choice. The pandering to the Christian uber-Right that we continue to witness is not a successful path, in my humble opinion. So much of this societal conflict could be eliminated if we just respected the privacy, the rights & choices, of every citizen, rather than endeavor to impose our beliefs, our choices, or our will upon other citizens. I have a lot more faith in the American citizen than perhaps some of our brethren do. I wonder if we will ever have the capacity to learn and appreciate what freedom truly means.
An opinion column in our local newspaper sparked me to punch the keys.
“Concerns about gays not new for churches”
by Brent Castillo
Wichita Eagle
Published: Thursday, 18.October.2007.
Brent,
I offer my congratulations and appreciation for your “Concerns” opinion article as well as your continuing efforts to communicate Christian and moral issues. The essential point . . . you said, “Christians shouldn’t ostracize people with whom they disagree. Jesus didn’t.” Indeed!
Religion has been a vital moral compass for humanity, as it should be. I am neither a theologian nor an expert on religion, and yet as a lay student of all religions, I can recognize goodness as well as error.
You note that some Christians, perhaps most, feel that the alleged “gay lobby” is “overreaching.” Is it overreaching for any human being to expect to be treated with dignity, respect and equality under the law? The Kansas marriage amendment, and in fact the defense of marriage initiative nationally, denies equal protection under the law for a portion of our community, our society. I acknowledge the right of every citizen to their personal beliefs, views, opinions or ideas . . . as long as those beliefs do not cause harm to anyone else, and they do not try to impose their beliefs upon me. That is why I objected to and voted against the marriage amendment; it is bad law. Votes are not opinion polls; they are statements of law by We, the People. What you may perceive as a so-called “gay lobby” is actually oppressed citizens speaking out for recognition of their rights as responsible, productive, law-abiding citizens.
Sexual orientation and gender identity are predominately, if not totally, private attributes or characteristics. A citizen’s private choices come to public awareness with such simple, common, normal activities like hospital room visits, medical benefits, tax rates, ad infinitum. You stated, “[M]ost Christians don’t care to know with whom you sleep” – a nice statement but hardly reflective of reality. Those same Christians are quite content to advocate for, endorse, and pass laws condemning the private choices of other citizens and deny equal protection of the law for those citizens with whom they disagree, or with whom they disapprove of another citizen’s exercise of their freedom of choice.
I have no idea whether you know any homosexual citizens or can claim a homosexual friend who is comfortable confiding in you. Perhaps you do not care about those citizens that we discriminate against in public life. Your purposes might be well-served if you attempted to understand the consequences of your advocacy upon whom our moral projection and discrimination bites so painfully.
Each and every citizen of this Grand Republic is, or should be, guaranteed their liberty, their freedom of choice, and the protection of the law for their privacy. Every citizen also has the guaranteed right to assemble with other citizens with whom they agree or have an affinity. Our constitutional freedom of speech allows us to espouse our beliefs in any public forum. Where we go dreadfully wrong surfaces when we seek to impose our beliefs upon all citizens, and dictate the allowable private choices of every citizen where any proper State interest is weak to non-existent.
We must find the common ground upon which we can separate public and private conduct, and respect the private choices of other citizens with whom we disagree. Our focus must be on public conduct, rather than private choices.
Cheers,
Cap
As is so often the case with me, along comes an instigating incendiary article:
"The War for the Constitution"
by Gary L. McDowell
Wall Street Journal
Published: 23.October.2007; Page A19
First, we had the war on religion, and then the culture wars, and now the war for the Constitution. We seem to have forgotten the War on Islamic Fascism -- the only real war in the bunch – but, that is another story. The McDowell article remembered the destructive confirmation process and hearings for Supreme Court nominee Judge Robert Heron Bork, 20 years ago, in order to make a point about the selection of justices. The conflagration of Judge Bork's confirmation process represents the challenge the United States faces regarding the Supremes and their rulings, however, it was Bork’s view of proper jurisprudence that draws my ire. As McDowell reported, "Mr. Bork's belief was that judges and justices in their interpretations of the Constitution must be bound to the original intentions of its framers. In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as 'any mysterious and uncertain natural law concept.' For Mr. Bork, the framers said what they meant, and meant what they said." Here is the essence of constitutional law and the importance of the Supremes’ jurisprudence. Intellectually, Judge Bork has a logically persuasive argument. Despite my lack of any legal credentials to debate Bob Bork on constitutional law and with all due respect, I disagree – strongly. What is missing in Bork's reasoning is the context of society as it evolves, i.e., society evolves, the Constitution does not. Judge Bork insists that as society changes, the Legislative branch must alter the Constitution by the established process rather than judges doing so be judicial fiat. My understanding of Judge Bork’s jurisprudence opinions indicates that his strict interpretation of the Constitution means an American citizen has NO rights against the government expect those explicitly defined by the Constitution. If the Supremes adopted or maintained Bork's fundamentalist approach, we would probably still have a significant portion of our society in slavery, inter-racial marriage would be prohibited, non-heterosexuals would be persecuted, female citizens would deed their bodies to the State, and We, the People, would have no protection from the intimately intrusive, near-omnipresent, pervasive, Federal government – vastly more powerful than any human being could imagine in 1787. When the Constitution was framed, the reach of the government compared to the autonomy of the individual citizen was vastly different -- the context within which the Constitution must be interpreted. The common analogy that returns like a sunrise relates the difference between Air Force and Army pilots, and Navy and Marine pilots. The former see the rules as what is allowed (i.e., if it is not expressly allowed, then it must be prohibited), while the latter group views the rules as only that which is prohibited (i.e., if it is not prohibited, then it must be allowed.); huge difference in the approach to the military flying task. So it is with Bork-esque judges/justices; if is not written as applied to the People, the right belongs to the government. Why did the Founders of this Grand Republic and specifically the framers of the Constitution begin the preamble with “We, the People,” in prominent bold letters, larger than all the other letters? Why did they write the 9th and 10th Amendments? Were they simply trying to placate the populous, or were they testing us to see if we were paying attention to the process? Just a reminder for those who may not recall and for those subscribers who are not citizens of the United States:
9th Amendment:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
10th Amendment:
“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.”
[emphasis added]
I continue to struggle with why the words “by the people” and “to the people” are so difficult for judges to understand. The oddity in Bork’s argument . . . he strictly interprets the words in one case, and specifically ignores the words in another, i.e., he apparently believes there are no fundamental rights beyond the Constitution since they are not defined and the 9th Amendment is too vague to interpret, and yet, chooses to constrain the words of the 14th Amendment to only the context in which they were written even though there are no such constraints defined. Nonetheless, in my humble opinion, Judge Bork and the other strict, fundamental constructionists fail to recognize the most basic, foundational, and obvious root of the Constitution itself – all power granted to government (Federal, state and local) comes from We, the People, and as Abraham Lincoln so eloquently said, “that government of the people, by the people, and for the people, shall not perish from the earth.” (emphasis added) I suppose they do not like the ambiguity of freedom. As such, I do not care much about and I am not impressed with, the legal scholarship of strict constructionists like Bob Bork; freedom from an oppressive government is in the very roots of the Liberty Tree that sustains us – the tree that begat the Constitution and the Declaration. The salient and most elemental portion of this argument is that the government (Legislative, Judicial and Executive) does NOT possess the authority to extend the reach of the law beyond the public domain, except where the proper public interests of the State and the protection of every citizen’s individual rights are concerned. We have acquiesced for too many years, and suffered far too many abuses upon our rights “retained by the People.” Bork’s rigid, fundamental ‘translation’ of the Constitution dramatically favors Federalism and the status quo, and as a consequence, seems to assume the goodness of mankind as the only point of salvation. On the flip side of this argument, the line between reasonable contextual interpretation of the Constitution and judicial fiat is quite thin and fickle, which leaves that particular positional determination subject to human error . . . thus, Judge Bork’s apprehension. As stated earlier, I believe Judge Bork is wrong; I believe the framers sought a balance between the federal and state governments as well as with the people – liberty and freedom were powerful influences in the construction of the Constitution. Judge Bork’s fundamentalist jurisprudence would seriously upset that balance. As a concerned citizen, I am thankful Bob Bork was not confirmed, although I am saddened by the tragically, injurious, confirmation process that he endured. Senate Rollcall vote number 348 of the 100th Congress (23.10.87) was 42-58-0, rejecting President Reagan’s nomination of Judge Bork. While some folks remember the trauma of Judge Bork’s nomination, I celebrate dodging the bullet. Judges and justices are ordinary human beings and do not possess any divine anointment; they do their best to interpret the law and dispense justice, but they are only human, and they make mistakes and commit errors. My criterion for a good Supreme Court justice is actually quite simple – an accomplished legal scholar who understands the very essence of this Grand Republic and the ultimate well-spring – We, the People. Bob Bork is not one of those; and I am thankful some judges believe in We, the People.
I am reminded of an odd little Supreme Court ruling that illustrates the absurdity of the Federalists and strict constructionists. In the case of U.S. v. Bhagat Singh Thind [261 U.S. 204 (1923)], Associate Justice George Sutherland, writing for the Court, affirmed a racial-based exclusion of access for immigration. The rationale reads like a judicial treatise on eugenics, under the dark shadows of a far more onerous episode in human history, soon to follow the Thind ruling. While Sutherland did not utilize an argument similar to or reflective of the strict fundamental constructionists like Bork, Thomas and Scalia, the essence of the reasoning is present, i.e., the people possess no rights other those defined by the strict, literal, interpretation of the Constitution, and associated law allowed by the Constitution. To the Thind Court, racial classification was a common, normal, and constitutionally acceptable characteristic upon which to base the law. These guys are not perfect or infallible. Even the venerable and renowned Associate Justice Oliver Wendell Holmes would not measure-up. In Buck v. Bell [274 U.S. 200 (1927)], Holmes extended the 14th Amendment Due Process and Equal Protection Clauses far beyond the racial instigator, when he sided with the State in a involuntary sterilization of a seriously incapacitated young woman and ward of the State of Virginia. Bork et al would not be pleased. I remember some of these cases when either side rattles the saber in their attempt to push nominations to one extreme or another. The timely and fortuitous decision in Genarlow Wilson v. State of Georgia [SCGA S07A1606] noted above gives us a more contemporary view. The dissenting opinion of Associate Justice George H. Carley Sr. provides a brilliant illumination of the challenge we face with every judge and every decision. Carley admonished the majority for ignoring the will and wisdom of the legislature over a citizen's right of protection from an oppressive government. This is the point -- who is supreme, the government or the People?
A case, as incredibly human as it is shocking, comes to us from Essex, England.
“Should the Court of Appeal allow Katie Thorpe's womb to be removed? -- A mother’s request to doctors to perform a hysterectomy on her disabled teenager will test the ethics of medical intervention”
by Frances Gibb
The Times Legal Editor
The Times (of London)
October 18, 2007
http://timesonline-emails.co.uk/go.asp?/bTNL001/mT9OIC4/qK0X9C4/uNSC46/xAI8S01
Katie, the 15-year-old daughter of Alison Thorpe, suffers from cerebral palsy, and reportedly has the mental capacity of an 18-month-old child. Alison seeks a hysterectomy for her daughter to avoid the trauma of menstruation. The ethical challenge of such cases is staggering. Katie is hardly capable of making an informed consent. And, it could be argued that pregnancy by whatever means would not be healthy for ‘mother’ or child. The English court now sits in judgment of the case. In this case, the decision belongs to the parent(s) or medical guardian, and presumably several medical doctors support such a procedure. I cannot deny the adverse images of a day gone by, and yet beyond my biases, I can see a degree of humanity in Alison’s decision on behalf of her daughter. The choice is largely private and personal to the family, and once the State’s interest is satisfied to ensure no one is being abused or harmed, the decision should remain with the family. The judgment of the court should be an interesting read for a host of reasons.
Comments and contributions from Update no.306:
"I'm part Irish and I want someone to apologize for the way the Irish were treated in the country in the late 19th and early 20th Centuries. "No Dogs or Irish Allowed" and all that.
"Yeah, Brownback planning to apologize for slavery is BS. Did he forget that the United States lost 600,000 people in a war that ended slavery? Did he also forget about John Brown's uprising to end slavery, which I believe occurred in Kansas. I can't hack when people apologize on my behalf for stuff I never did. What an idiot.
"Now if only Ron Paul will walk into the Reality Universe and drop out. That'll make me happy."
My reply:
Ron Paul has the right idea in many areas, but he is so extreme in other important ones. You were correct about John Brown and Kansas, but Brown's most famous incident was Harper's Ferry, Virginia, where he crossed paths with Lieutenant Colonel Robert E. Lee, USA.
Another contribution:
"Wow, 306 is quite a mouthful.
"I regret that I cannot (or more accurately, do not...) take time to read all your offerings, all of which I accept as worthy of consideration and appreciation.
"Let me just suggest that if there were ever a more glaring confirmation of the need for a formal declaration of war than the multiple thoughts in your 306th, I have not read it. We need to figure out how to DO IT! At the very least, our inarticulate President could ask for it and let the Congress figure out how to do it. I know, it is naive of me to think that this could occur...
"Secondly, I do not believe in "hate crime" and suggest that you should not perpetuate this stupid result of the political correctness disease that has made all other epidemics in this country seem minor by comparison.
"Finally, although there are other matters that need response, I suggest that in view of any dispassionate view of history and any sane view of Islam, we not only would be foolish to bring up Armenian abuse but would be infinitely better off embracing the Turks on every available level and strengthening our relationship with the citizens of that remarkably capable ally. I am peripherally involved with the International Interfaith Dialogue, begun and perpetuated by Turkish Muslims with increasing cooperation from all but the most narrow-minded Christian, Jewish, Buddhist, Hindu, and other religious communities in the southeast (and maybe elsewhere in this country and certainly elsewhere in the world). IID is one wonderfully apolitical effort to bring about peace through one-on-one human contact among people of differing faiths. Regardless of one's pessimism about religions in general, and I have a lot of it, one cannot ignore the relatively friendly basis for this and other means of cultivating ties with Turkey. We need friends in the region. Israel is not a big enough friend, although I admire its spunk, and who needs enemies when the Saudies are handy."
Another contributor added to the thread:
"I cannot speak personally to the problems between Turks and Kurds in Northern Iraq. And I think maybe the Kurds are decent people. Long trampled on by Saddam when he was alive and in Command. BUT---Turkey has been an Ally for Many years. I'd hate to see us throw that country to the wind without super good reason.
"I personally have never been able to see Religion, and so differences in beliefs, as a reason for peoples to go to war. But certainly that has been the case over and over during recorded History. I do not understand. I say let anyone believe anything they want, so long as they do not hurt their neighbor."
My response:
We have discussed the declaration of war topic many times. We are in violent agreement. With the election a year away, I can see no sliver of hope something as necessary and proper as a declaration of war happening, unless, God forbid, another serious Homeland attack is successful. I think we have what we have.
My support of “hate crimes” legislation is not motivated by political correctness; far from it. My motive is quite simple – equal protection under the law for all citizens regardless of the social factors. I am not a fan of political correctness, although I was an unwitting purveyor for a few years, and I do not espouse such things. I am an advocate for Federal protection for abused classes of citizens, since the states are often quite comfortable discriminating against some citizens based on perceived, private, moral grounds. When local and state law fails to protect citizens from abuse, discrimination and violence simply because of their perceived private activities, Federal protection is required. When such abuse ends, the government can repeal “hate crimes” law – “equal protection” will be available to all citizens, not just the self-anointed. I would like to hear more about your objection to “hate crimes” laws.
I like your “International Interfaith Dialogue.” So much of war, conflict and argument stems from ignorance and lack of understanding. Religious intolerance and parochialism is probably the single greatest spark and accelerant of human conflict in recorded history. Anything to dampen that theological zealotry and bigotry is a positive action. Communication is quite often the preferred remedy for such ignorance between individuals as well as groups of human beings. Turkey has been a good ally for many decades.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
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