30 June 2008

Update no.342

Update from the Heartland
No.342
23.6.08 – 29.6.08
Blog version: http://heartlandupdate.blogspot.com/
To all,
The follow-up news items:
-- The word magician and comedian George Denis Patrick Carlin passed away at age 71. Regardless of our politics and sensibilities, we must laud Carlin’s intellect and extraordinary ability to showcase the majesty and absurdity of words, in common as well as unusual contexts. His challenges to us all shall endure beyond his life, but we are diminished without him. May God rest his soul . . . even though he did not believe.
-- Zimbabwean opposition leader Morgan Tsvangirai withdrew from the election as the blood of his supporters flowed in the streets, and he sought protection in the Dutch embassy in Harare. Tsvangirai’s extraordinary action further accentuates the criminal conduct of the dictator Robert Mugabe. Then, to pore salt in the wounds, Mugabe’s goons threatened to decapitate anyone who did not vote . . . for the only candidate remaining. Despite the threats, hundreds of thousands Zimbabwean’s abstained rather than sanction Mugabe’s grotesque insult to the nation. President Bush declared the Zimbabwean election and government illegitimate. And, to think, a couple of decades ago, Zimbabwe, formerly Rhodesia, was one of the most prosperous countries on the African continent.
-- The FISA Amendments Act of 2008, or more properly, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 [HR 6304] passed the House [vote: 293-129-0-13 (0)] and went to the Senate, where Senator Russell Dana ‘Russ’ Feingold of Wisconsin threatened a filibuster to stop passage of the important legislation that includes the controversial telecom immunity provision. The Senate invoked cloture [Senate: 80-15-5 (0)], which should bring the bill to Senate passage.
-- On Thursday, the North Korean government handed over their nuclear declaration to the Chinese as part of the Six Party Talks. The President indicated his intention to remove the DPRK from the list of terrorist nations – quid pro quo. The North Koreans destroyed a nuclear plant cooling tower the following day, as a symbolic direct action toward reconciliation.
-- Five days after the Supreme Court’s detainee habeas corpus ruling – Boumediene v. Bush [552 U.S. ___ (2008)] [340] – Representative John Barden Shadegg of Arizona introduced the Boumediene Jurisdiction Correction Act [HR 6274] to give military courts exclusive jurisdiction regarding detainee cases. Also, the first of post-Boumediene detainee appeals – Parhat v. Gates [DC CCA no. 06-1397 (2008)] – reversed the finding of the Military Tribunal and declared that Chinese Uighur Huzaifa Parhat was not a battlefield combatant. The Parhat decision document is being redacted to eliminate classified material and is not yet available for review. The plot thickens.

Last November, the Supreme Court agreed to hear the appeal of the District of Columbia regarding the adverse judgment of the DC Circuit Court of Appeals regarding the District’s 30 year ban on handgun possession. The three-judge panel in the case of Shelly Parker v. District of Columbia [DC CCA no. 04-7041 (2007)] reversed the district court judgment, finding the DC law was an unconstitutional violation of the 2nd Amendment. [311] The Court heard the appeal in March, including an extraordinary Amicus Curiae (friend of the court) brief by 55 senators, 250 representatives, and the President of the Senate, Vice President Richard B. Cheney, on behalf of the respondent – DC special police officer Dick Anthony Heller [325]. The Court rendered its judgment on Thursday – District of Columbia v. Heller [552 U.S. ___ (2008); no. 07-290]. The scholarly decision covers a broad range of law from the colonial days and the English Declaration of Rights of 1689, through the formulation of the 2nd Amendment in the American Bill of Rights, to the last major review of the Amendment in the case of United States v. Miller [307 U.S. 174 (1939)] – a challenge to the National Firearms Act of 1934 [PL 73-474] [311]. Virtually every word in the controversial Amendment was dissected in detail by both the Court and the dissent, and the contrast in judicial perspective brightly illuminates the extraordinary power and flexibility of the English language as well as the political biases or predispositions of the justices. In affirming the DC Circuit’s judgment of unconstitutionality, Associate Justice Antonin Scalia concluded, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” Scalia also observed, “A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.” Yet, perhaps, the best illuminative sentence in this decision comes from Associate Justice John Paul Stevens in his dissenting opinion; “Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment.” The single, most descriptive word in the sentence is ‘surely’ – an adverb that conveys a sense of projected expectation. The dissent went to great lengths to acknowledge the physical cost and emotional impact of gun violence on our society, however, such arguments as rationale to impinge upon the constitutional rights of every, single citizen is hardly worthy of the High Court’s jurisprudence. Associate Justice Stephen Breyer offered his conclusion in dissent, “I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission” – odd, since he had no such reservations in the majority of the Boumediene decision, which may have far greater impact on the security of this Grand Republic. This case graphically displays the oddity and flaws of the Court, that justices see in the words of the Constitution, legislated law, and the scholarly commentaries on the law what they wish to see, and we can sense the political tension both internal to the Court and beyond. The silly season will certainly accentuate and amplify the political aspects of the Judiciary, and this case will be grist for the mill. ‘Strict constructionist’ versus ‘judicial activist’ are popular, political monikers of convenience intended to stir up parochial partisanship. ‘Liberal’ and ‘conservative’ hardly seem descriptive enough, as those terms attract so many other political elements. I have found that reading the Court’s opinions through prisms of public versus private, government versus individual citizen, or Federalist versus individualist, or collective versus liberty. The recent Boumediene and now Heller decisions can be seen through these alternative prisms. When viewed from a different perspective and in the illumination of the Founding principles, the activist justices appear to be the Federalists, the conservatives, and the so-called ‘strict constructionists,’ who are expanding the powers of the Federal government far beyond the original vision of the Founders and Framers. Why would the Founders accept the potential oppression of state governments and not the Federal government? Does a state government have more authority to intrude upon an individual’s privacy than the Federal government? In this case, the Court dealt with a citizen’s right to private use (possession) and sided with the individual citizen. Of course, as Antonin the Impaler acknowledges, the right is subject to regulation . . . for the public good. Gun violence compelled the DC government to ‘enter’ private homes and deny private use, ostensibly for the public good. Like so many well-intentioned laws, the State chose a sledgehammer instead of tack hammer to fulfill its perceived responsibility. The obscenity of indiscriminate gun violence in the United States, and in this case specifically, the District of Columbia, is insufficient rationale for blanket gun bans like the DC handgun law. The Court affirmed the rights of every individual citizen over the State. My opinion regarding the 2nd Amendment and reasonable limitations [274] has not changed.

Comments and contributions from Update no.341:
“What??? No mention of the ongoing saga and soap opera style drama of the USAF Tanker Contract and Protest??? Surely that merits some acknowledgement in the Update!!! Especially since the GAO has now upheld that the USAF did not follow its own rules during the evaluation stage of the procurement. Also, what about McCain's campaign staff who were actively lobbying for EADS???? Should add some spice to the ‘silly season’!!!”
My response:
Actually, I did comment on the Air Force procurement decision in the new Multi-Role Tanker Transport (MRTT) program [326]. Perhaps, you don’t recall. LOL The GAO opinion was a bit extraordinary for major military procurement programs. I have been on the losing and winning sides of big competitions; I know what it feels like, and how wrong the losses felt as well as how wise the wins were. I do not know the details of the decision or the GAO’s opinion.
There probably was politics in the Air Force’s decision, and undoubtedly politics in the GAO opinion. The babblings of the local politicos bother me, like the Air Force was outsourcing jobs, technology, and national treasure. I think the Air Force did the best they could with the constraints they were given. My beef with the whole process centers upon the foolish notion of the protectionist mentality so prevalent in portions of our society.
This whole fiasco has been mucked up from the get-go, no wonder it remains a mess. So, I guess the Air Force and this Grand Republic shall wait some more for a replacement for the aging KC-135 fleet.

Another contribution:
“I never mean these things personally- and let my frustrations appear as attacks on you and what you think- and must again repeat that I will defend your right to think whatever you want short of death, (for I am not that tough, never having been tested by water-boarding etc.) - and I know you are the warrior mindset, as many of my friends are who are ex-military. But even you must admit that the warrior's job is to kill and destroy- or be killed and destroyed- so that is why we have grown to use that hammer only for that purpose-I respect your view that we are at war with Islamo-fascists, but I do not agree with it. I think there are too many facets, too many nuances, too many variables, and way too much control of the information for us to allow the warrior mindset to be the dominant argument. Congress made a mistake because of this predilection to let emotion and sabre-rattling drown out debate and discourse. Speak softly but carry a big stick makes a lot of sense, but when you have, what I consider, a small man surrounded by people with narrow agendas speaking very loudly with no warrior experience from the comfort of his staged podiums and then swinging that stick in any direction he wants- we have the catastrophe we are all experiencing now. With Clinton rhetoric about obliterating people and Obama kowtowing to AIPAC, I'm not all that hopeful at this point, but remain somewhat optimistic that we can bring some sanity to world events by civilized experienced people beginning to dominate the arguments. We could discuss this warrior mentality ad nauseum I guess, but don't you agree that the mentality that would have attacked Cuba with tactical nukes if necessary in Oct 62 would have been disastrous? There we had legitimate brave warrior-soldiers arguing the case- and they had seen combat, some having personally lead the bombing raids over Nazi Germany-yet it took a rich spoiled privileged upstart, who fortunately had a little vision and intelligence, to stand them down, and save the world, one might add. But I digress on that.”
My reply:
Thank you for the reassurance. I put myself out there for a purpose. Sometimes the comments bite, but that is the whole point . . . to help me think, to make me think, and hopefully help just one or two others think. Thank you for your continuing participation.
Yes, precisely, the warrior’s job is to kill and destroy . . . to stop the killing, which is precisely why war should always be the last resort.
I am glad that you and other fellow citizens do not agree with the war. Neither do I. I wish we could live in peace, as nearly all human beings truly wish. Unfortunately, there are a few humans who learned such corrosive hatred that they seek to impose their will on other free people. A rabid dog knows no love, and the only answer is to kill the dog before he can hurt others. We are doing the best we can to deal with the rabid dogs among us.
I don’t know that ‘W’ is as wild and indiscriminate as portrayed, but nonetheless, point taken.
Interesting perspective on the Cuban Missile Crisis. There were many factors on both sides contributing to that event. Those aside, the military’s responsibility is to define military options – those inherently involve the use of force. And, if I was wearing four stars and advising the President, I would offer options with all the weapons available to me including nuclear. The President’s responsibility is to set a course with all the resources available to the Nation – military options are and should be the tool of last resort. So, no, I do not think the option of tactical nukes in October 1962, was dangerous or even unusual. I would truly hope today’s military offers the President options that also include nuclear weapons. The military’s job is to win a war when the trigger is pulled, period; and, as I have tried to convey many times, half-measures on the battlefield just gets a whole bunch more good men killed.

{These comments were submitted anonymously at the Blog website.}
“The present system of electing the President does not ‘work well’ because the winner-take-all rule (currently used by 48 of 50 states) awards all of a state's electoral votes to the candidate who gets the most votes in the state. Because of these 48 state laws, presidential candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the concerns of voters of states that they cannot possibly win or lose. Instead, candidates concentrate their attention on a handful of ‘battleground’ states. 88% of the money is focused onto just 9 closely divided battleground states, and 99% is concentrated in just 16 states. Two thirds of the states are effectively disenfranchised in presidential elections. Another effect of the winner-take-all rule is that a candidate can win the Presidency without winning the most popular votes nationwide – something that happens in 1 in 14 elections (1 in 7 non-landslide elections).
“The Constitution would not be unraveled by the National Popular Vote bill.
“While the Electoral College is in the Constitution, people are frequently surprised to learn that the current ‘winner-take-all’ rule of awarding electors in each state is not in the Constitution. It is a matter of state laws. In the Constitution, how states award electoral votes, is left to each state to decide. So there is no need to amend the Constitution. The founders left the question of how to award the electoral votes to the states.
“Read up at http://www.nationalpopularvote.com/.”
My reply:
We can criticize any system for electing officials. Article II, Section 1 of the Constitution is certainly no different. The traditional ‘winner-take-all’ approach to Electoral College delegate allocation has served this Grand Republic well for 220 years. Under the Electoral College system, the States matter, and the election calculus demands that candidates consider the issues within states. The ‘winner-take-all’ Electoral College method emphasized the sovereignty of states rather than the national popular vote. Since the New Deal of the 1930’s, states have mattered less and less, well, expect when it is convenient for some political purpose to brandish state’s rights. I, for one, do not believe further dilution of the states in deference to the Federal government is a positive action by We, the People. Several elections have elected presidents without winning the popular vote. We have survived those exceptions. We shall continue to survive with the Electoral College and despite future exceptions.

A different contribution regarding my marriage question:
“I myself do not believe the homosexual marriage will destroy the family institution of marriage. I believe it will not be an issue many years to come. Gay relationships will never go away (they've been around for many, many years and will be around forever). Someday, the public will just give in ... maybe not anytime soon, but it will happen.”
My response:
Unfortunately, there are a lot of people in this country to truly believe what some of the uber-Right, pseudo-preachers tell them . . . that a small fraction of our population who choose a same gender partner will somehow destroy families and marriage. Such thoughts imply we are too week to decide for ourselves. I continue my crusade to help people think through things regarding homosexual rights. They are just ordinary, regular, normal folks that have every right to the same benefits and privileges of citizenship that heterosexual folks do. ‘Just giving in’ is not the best outcome from my perspective. I hope that people can think and see that what two (or more) folks choose to do in private is their business, no one else’s, and we have no interest placing the government in anyone else’s bedroom.
. . . a follow-up comment:
“I guess saying ‘giving in’ were wrong words ... I should have said when the general public gives UP their uptight beliefs and fears, things will change. Will it be in our lifetime? Possibly not, but it is slowly working that way. Sorry no one else responded to your question ... many people are not necessarily against the idea, they just don't see the importance in it, maybe because it doesn't personally affect them or their lives. Sad.
. . . and my follow-up response:
This whole issue of homosexual marriage stems from strict controls on public and private behavior by the Roman Catholic Church and the descendant Christian sects, but could easily be extended to all three of the revealed religions, that have been manifested in our laws. The Constitution was ratified when 5 of the 13 original states recognized, sanctioned and supported human slavery. We overcame that affront to our Founding principles. Homosexuality has far more sensitive and explosive connotations, and I imagine it will take a comparable amount of time to truly overcome. The truly sad aspect of the homosexual rights debate remains that homosexual citizens are good, upstanding, productive citizens. They estimate 10-20% of any population are non-heterosexual. I dare say, most folks are friends with people who they do not know are homosexual. If people would only let go of their fears and phobias, and look at people for the content of their character, they would readily find that non-heterosexuals are far less of a threat to society than many heterosexuals. But, as always, “That’s just my opinion, but I could be wrong.”

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)

23 June 2008

Update no.341

Update from the Heartland
No.341
16.6.08 – 22.6.08
Blog version: http://heartlandupdate.blogspot.com/
To all,
We recently had a weekend filled with granddaughter activities. I have been very slow in sharing a couple of the images from that weekend. Here are our granddaughters, Aspen Shae and Shalee Lynn. We are so proud of them both . . . oh yeah, and their parents. LOL

Our futballer
[Our futballer.jpg]
Our dancer
[Our dancer A.jpg]


The follow-up news items:
-- Another Marine – Lieutenant Colonel Jeffrey R. Chessani – had charges against him dropped without prejudice in the aftermath of the so-called Haditha massacre [234, 276, 339], which means the Marine Corps could re-file charges, if they wish. All the nonsense does make me wonder even more what kind of pressure was brought to bear on Lieutenant General James N. Mattis, USMC, to sacrifice not quite a dozen combat Marines to political correctness.
-- The military officer who led the investigation into the Abu Graib prison situation – Major General Antonio M. Taguba, USA (Ret.) [126] – resurfaced this week to accuse the President of the United States of war crimes. The plot thickens.
-- A few follow-up thoughts on the Boumediene decision [340]:
I can understand, although I do not accept, crimes of necessity or passion or even mental illness, but war is not one of those. Our enemy in the War on Islamic Fascism chooses to use the intangible bite of terrorism to inflict psychological injury more so than physical killing on those with whom they disagree. To think of terrorism or Islamic fascism in criminal terms, gravely underestimates the seriousness of the threat. We are not talking about bank robbers, serial killers, or even the Mafia or crime gangs. These guys are organized, committed, indiscriminate killers who seek our demoralization and withdrawal, just as the Barbary Pirates sought our capitulation in 1802.
-- Then, with all the internal convulsions of the last few weeks, on the 13th, approximately 30 enemy fighters and suicide bombers attacked Sarposa Prison, Kandahar, Afghanistan. The successful, multi-point attack freed 1,100 bad guys, including 500 Taliban and al-Qaeda fighters. At least the Taliban had to work to free their buddies from the Afghan prison. All they have to do is wait for the Americans to do the job for them. Like Kurt Vonnegut so succinctly and eloquently said, “And so it goes.”
-- Then, of course, we have the continuing, Capitol Hill, soap-opera of the Kucinich Resolution [H.Res.1258] – to impeach President Bush [340]. Shortly after reading his 64-page, 35-count, articles of impeachment into the Congressional Record, Kucinich offered a resolution to refer his proposal to the Judiciary Committee. The House promptly voted [House: 251-166-0-16 (2)] to do just that.

Senator Clarence William "Bill" Nelson of Florida introduced a constitutional amendment to eliminate the Electoral College and elect the President of the United States by popular vote [S.J.Res 39]. Of course, this is a more serious attempt to unravel the Constitution than the ill-advised Maryland state law – the Presidential Elections – Agreement Among the States to Elect the President by National Popular Vote [279]. This misbegotten Nelson initiative will not affect this year’s election, but it could be placed before the states by the 2012 election. Just like the Marriage Protection Amendment and the Anti-Abortion Amendment efforts, this is a foolish exercise, but that is our system. It must be so satisfying to be in the majority, so much so that they can throw away 220 years of success . . . because they can.

It seems the British are succumbing to similar social afflictions as we colonialists.
"Law creates underclass of child criminals - Britain breaching rights, watchdogs tell UN"
by Rosemary Bennett, Social Affairs Correspondent
The Times [of London]
June 9, 2008
http://www.timesonline.co.uk/tol/news/uk/crime/article4093218.ece?&EMC-Bltn=IQZF39
The British government’s Children’s Commissioner for England Professor Sir Albert Aynsley-Green and his three colleagues wrote a particularly critical assessment for the United Nations regarding the legal and judicial treatment of children in the United Kingdom. Odd sorta thing to do. Nonetheless, a few points struck me about Sir Albert’s opinion. One, we continue to ignore the root cause. Children are a product of their parents. The children are not the problem; the parents are the problem. And, until we hold parents accountable for the conduct of their children, we will continue to wonder why some kids become criminals. The harsh treatment of the criminal justice system is hardly the cause or even a symptom. Two, the State has an obligation to all citizens for their safety and security, not to the failures of poor parenting. Young folks turn to crime out of frustration, defiance, demonstration, anger, confusion or even necessity. The State cannot be a parent, not even a marginally adequate parent. So, respectfully, Sir Albert, you are wrong. Do not chastise the State for fulfilling its responsibilities; focus your wrath on the parents who neglected or abused that precious child. Juvenile criminals are taught in the home of their parents. We will stop the criminals when society proclaims its commitment to punish the creators of young criminals.

For those who believe the marriage of a homosexual couple will destroy marriage as a family institution in the United States, would you be so kind to describe for me how such destruction will or even can occur? I am having a hard time understanding how some other couple’s private relationship choices is going to affect my marriage or the marriages of our children. Someone please help me understand.

A related article that does not address my question above, but does give us some interesting insight to the issue:
"Gay Unions Shed Light on Gender in Marriage"
by Tara Parker-Pope
New York Times
Published: June 10, 2008
http://www.nytimes.com/2008/06/10/health/10well.html?_r=2&8dpc=&adxnnl=1&oref=slogin&adxnnlx=1213100163-7ZE4LRM5DnYwSV4rC42A+A&oref=slogin

Several contributors noted a five-part series of newspaper articles regarding captive battlefield combatants held or being held by the United States, presumably to put the Supreme Court’s Boumediene v. Bush [552 U.S. ___ (2008); no. 06-1195] decision in proper human perspective. Tom Lasseter wrote the series of articles for the McClatchy Newspapers of which the Wichita Eagle is one. As with so many of these debates, discussions and pronouncements, so much depends upon definition and perspective. If we believe not serving detainees afternoon tea and biscuits on time is abuse, then we have a standard. If we don’t believe breaking bones or losing an eye is abuse, then we have a dramatically different standard. Likewise, if we do not believe we are at war, then the President’s actions and the conduct of U.S. Forces on the battlefield look fundamentally different. Further, if we view various news reports, proclamations by our favorite talking heads, or the instant flash moments of news on the cable news channels without understanding the true nature of warfare, then we often rail at the inhumanity, and withdraw to the comfort of our sphere of social acceptability. So it was with Lasseter’s exposé articles. I must laud his extraordinary effort to acquire information and communicate a view of the battlefield rarely accessible to citizens. Lasseter’s words convey the revulsion most if not a substantial majority of American citizens undoubtedly feel with respect to the ambiguity of the War on Islamic Fascism. I shall leave my opinion here, for the moment. Additional comments are offered below. For your reference, the five installments are:
1. “America's prison for terrorists often held the wrong men”
by Tom Lasseter
McClatchy Newspapers (Wichita Eagle)
Posted on Sunday, June 15, 2008
http://www.mcclatchydc.com/detainees/story/38773.html
2. “U.S. abuse of detainees was routine at Afghanistan bases”
by Tom Lasseter
McClatchy Newspapers (Wichita Eagle)
Posted on Monday, June 16, 2008
http://www.mcclatchydc.com/detainees/story/38775.html
3. “Militants found recruits among Guantanamo's wrongly detained”
by Tom Lasseter
McClatchy Newspapers (Wichita Eagle)
Posted on Tuesday, June 17, 2008
http://www.mcclatchydc.com/detainees/story/38779.html
4. “Easing of laws that led to detainee abuse hatched in secret”
by Tom Lasseter
McClatchy Newspapers (Wichita Eagle)
Posted on Wednesday, June 18, 2008
http://www.mcclatchydc.com/detainees/story/38886.html
5. “Taliban ambassador wielded power within Guantanamo”
by Tom Lasseter
McClatchy Newspapers (Wichita Eagle)
Posted on Thursday, June 19, 2008
http://www.mcclatchydc.com/detainees/story/38888.html

The Supreme Court issued another interesting habeas corpus ruling last week, but it was overshadowed by the Boumediene v. Bush [552 U.S. ___ (2008); no. 06-1195] decision [340]. The companion case – Munaf v. Geren [552 U.S. ___ (2008); no. 06-1666] – released the very same day, oddly has not received any Press coverage. As I read through the latter case, I continued to wonder why the Press and talking heads had not ballyhooed the Munaf ruling over Boumediene. After all, Mohammad Munaf and Shawqi Omar are both American citizens; Lakhdar Boumediene is a Bosnian Muslim militant. Both cases were habeas corpus appeals seeking relief against the U.S. Government for unreasonable incarceration; both cases involved imprisonment outside the territorial United States. Could it be that the Guantánamo Bay facility is a sexier cause célèbre for the uber-Left than Camp Cropper prison in Iraq? Too bad for Mohammad and Shawqi. These two Americans were captured in Iraq, fighting for the other side, quite like John Walker Lindh was in Afghanistan [16], except they possessed more terrorist material; Lindh only had a gun, tribal attire, and jihadi brethren. Another interesting facet of the Munaf case, after both men were captured separately, they both petitioned the DC Circuit Court for a writ of habeas corpus and an injunction to prevent the United States from transferring them to Iraqi custody and trial in the Iraqi judicial system. The Court unanimously rejected both appeals. While the two Americans may well meet the same fate in either court system, both of them should be tried for treason by military tribunal and suffer the punishment of traitors. Perhaps they may well feel the weight of American justice for such traitorous conduct, if they survive Iraqi justice.

Two weeks of drought, and then we have a deluge.
Comments and contributions from Update no.340:
“Scalia's opinion was rather legal cite-free, which is interesting, to say the least. One would have expected more from him. Here are the comments of one professor on his dissent:
“But Justice Antonin Scalia's dissent to Boumediene v. Bush yesterday was a little inconsistent with his own jurisprudential ideology, premised as it was on more than a hint of crystal ball gazing. It "will make the war harder on us," he wrote. "It will almost certainly cause more Americans to be killed." Time will tell, but one would have thought that strict constructionists were more backward-looking in their faithfulness to what the Founders said and intended, and less forward-looking in deploying predicted consequences as a major guide to judicial reasoning.
“Here is the so-called "Suspension Clause" (Article 1, Section 9) of the constitution - "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" - the constitutional point of contention in Boumediene v. Bush. Lawyers and judges will continue to debate the meaning of ‘invasion,’ but it is interesting that the strict constructionists on the Court have had to expand the meaning of ‘invasion’ beyond its normal reach to justify their dissent from the majority opinion.”
My reply:
As you have probably gathered from my writing, I have a love-hate attitude toward Antonin the Impaler. I admire his writing but often strongly disagree with his legal reasoning. Boumediene was not one of his better efforts. He calls himself a strict constructionist. I call him a staunch Federalist. I offered a good chunk of my opinion in last week’s Update [340] and have already added more in this week’s Update [341]. I am not a rigorous constitutional scholar; I would like to think I am a lay aficionado. My reading of Boumediene yields profound puzzlement. I cannot imagine any of the Founders – Jeffersonians to Hamiltonians – accepting or even envisioning extension of the constitutional habeas corpus to enemy combatants, captured on the battlefield and incarcerated beyond our territorial boundaries. Roberts’ dissent articulation gives the best view of the serious constitutional issues wrapped up on the Court’s decision. All in all, Scalia pegged it, “The Nation will live to regret what the Court has done today.”
. . . a follow-up comment:
“Just a note on Boumediane-- things may not be so dire as many think. The judge in whose court many of the Gitmo habeas petitions are pending, seems to be getting ready to move out in a workmanlike manner.
“U.S. District Court Chief Judge Royce C. Lamberth met today with lawyers from the Department of Justice and representatives of the Guantánamo detainees to discuss how the court should proceed in light of last week's Supreme Court decision in Boumediene v. Bush. In the off-the-record meeting, lawyers for both sides discussed a number of security and procedural issues that are common to many of the nearly 200 cases pending before the court. ‘We had a constructive meeting today and will have a follow up meeting next Wednesday. I plan to meet soon with the judges of this court to discuss the lawyers' suggestions for how we can move these cases most efficiently and expeditiously,’ said Chief Judge Lamberth.”
. . . and my follow-up reply:
As with so many things human, and especially with the flexible and adaptive English language, interpretation is in the mind of the beholder. Good on Judge Lamberth for his enthusiasm in rolling up his sleeves and getting to work. The Court has ruled; we shall do our best to persevere.
I am struggling to appreciate all this yammering about the poor downtrodden detainees like Mohammed Naim Farouq or Khalid Sheikh Mohammed. Yet, my opinion and my journey to understand does not matter a hoot.
To further our intercourse, let me ask, how many POWs in any war previous to this one, and on any side, were granted the habeas corpus right? Were all those previous war leaders and courts wrong? How many previous POWs found affinity with the captors and antagonists? There were a few in Korea. There were misty stories of a few in Vietnam. I am not aware of any Allied POWs aligning themselves with the Nazis or Imperial Japan. There were more than a few German and Italian POWs who sought U.S. citizenship, and actually achieved their goal. Why was that, I wonder?
My only conclusion . . . those who seek to make nice with our enemies and grant captured battlefield combatants the legal rights of American citizens must believe deep down that we are NOT at war, NEVER have been at war, and thus normal wartime conduct has no relevance.
Apparently, I am in a very small minority who actually believes we are at war. If so, then I concede. We should withdraw our troops and return them to their families. The expenditure of a generation’s blood for the ego-centric, selfish, blind, political ambitions of a demented president is wrong in the worst possible way. I am far more worried about our freedom than I am about the freedom of Iraqis, or Saudis, or Zimbabweans, or Pakistanis, or anyone else out there. Let them kill each other. I don’t care. We fought for our freedom. Let them fight for theirs. Heck, now that I am at it, let’s release all the detainees, give them back their guns they have a right to, and forget all this nastiness. I’m tired.
. . . round three:
“One important point- these people are not POWs- they are detainees. Rumsfeld and company didn't want them to be called POWs.
. . . and my reply to round three:
I am reticent to call them POWs myself. The title POW has some nobility to it. POWs are soldiers of one nation captured by another. So, POW is clearly not the correct term for captured battlefield combatants in the War on Islamic Fascism. Yet, POW is closer to being accurate than prisoner or criminal or such. In fact, in wars gone by, fighters on the battlefield without uniforms were treated not much better than spies . . . summarily executed after whatever information that could be sucked from them had been obtained. My point is, these guys are NOT common criminals and they are far below noble warriors. To pretend they are something more than they are does serious disservice to all those who show at least some respect for humanity.

Another contribution:
“The Supreme Court is speeding up the trip to the abyss a bit with this ruling. The leadership void is already surrounding us. I wonder if anyone understands or even reads history anymore. If they did, it would give pause to consider what is coming.”
My response:
I share your sense of foreboding. On the slightly positive side, I have felt this before . . . the decade of the 1970’s . . . racial strife, the anti-war movement, Daniel Ellsberg and the Pentagon Papers, Hanoi Jane, Nixon’s betrayal, Watergate, the Fall of Saigon, Jimmy Carter, Harold Brown, Operation EAGLE CLAW. We overcame all that; we will overcome this.
. . . a follow-up comment:
“Good point. I was not as concerned back then and thought we would come to our senses. We did, but this time seems different. We'll see. It will depend upon future leadership.”
. . . and my follow-up response:
I was concerned back then, as I am concerned now. Indeed, much will depend upon our future leadership.

A contribution from the Update blog site:
“The narrow SCOTUS decisions supporting human rights shows us how close we are to dictatorship, and how important it is to elect Obama this year.
“If the government says that these people are imprisoned because they are ‘enemy combatants,’ then the very minimum burden of proof is to show publicly the circumstances of their capture that led to that conclusion.
“Pardon me if I don't believe an administration that has lied or been wrong about every aspect of this war.
“Denying the most basic right that has been the core of our justice system for 700 years is a dark step toward dictatorship. Those who oppose it are saying that the United States can capture, imprison and torture anyone on the planet AS LONG AS THEY ARE FOREIGN NATIONALS, and there is not a damn thing anyone can do about it. How long would it be before American tourists fell victim to the same philosophy in other countries? If we set a standard of injustice, then others will follow it.
“A politician trading on the fear of terrorism in order to consolidate his own power might as well join al Qaeda and get it over with, because he is doing their work for them.
“These rights were bought with the blood of patriots who knew that liberty is more important than safety, and they proved it by laying down their lives so we could be a free people. Now, cowards and traitors would dishonor those brave men and women by cowering in fear and surrendering those hard won rights.
“Giving habeas corpus rights to EVERY person imprisoned by the United States shows our strength, courage and freedom. Taking away human rights out of fear means we have started a slow decline as a nation.
“I am a United States Army veteran, I swore to defend the Constitution, and I consider that a lifetime obligation.”
My reply:
I, too, am a veteran sworn to defend the Constitution against all enemies, foreign and domestic, until I am no longer able. I made a commitment many years ago to stand the line in harm’s way to protect the “Life, Liberty and pursuit of Happiness” of every citizen as they freely choose.
As I wrote in Update no.340, I laud the Court’s protection of our habeas corpus rights. Those rights apply to any American citizen, even traitorous Americans. But, in the Boumediene decision, we are not talking about citizens, or even foreigners in the United States.
Where we apparently differ in the interpretation of the Boumediene decision is the extension of our precious habeas corpus rights to enemy combatants captured on the battlefield. Let’s put this in perspective. How many of the 400,000 German, Italian and Japanese POWs held in camps inside the Continental United States were given access to a writ of habeas corpus and criminal courts? When have we ever asked our combat troops to observe criminal justice procedures in capturing an enemy soldier on the battlefield?
I respect your right to hold whatever political opinions and positions you wish, and to support, advocate and vote for any candidate you may choose. Yet, I must respectfully object to the insinuation that the President is a dictator or lied to the American People. I am not a fan of George W. Bush; in fact, we differ on far more that we may agree upon, but he is still the President. We may differ in our opinions of his actions and conduct as Commander-in-Chief; that is our right; but, regardless, he remains the President of the United States of America, and Article II, Section 2, of the Constitution gives him extraordinary power to act on our behalf to protect us. We can debate about the correctness of the execution of his duties, but he remains the sole American citizen vested with those powers; no one else, period.
American citizens have rights guaranteed by the Constitution and our body of laws. Even those citizens who choose to commit crimes against those laws have rights under the Constitution. Enemies of the State captured on the battlefield are at best POWs, not criminals, and most definitely not citizens.
The War on Islamic Fascism is far bigger than political parties, parochial partisanship, or the fractious yammerings of the negativists, and will go on longer that the current administration, and probably the next several administrations. I believe the War on Islamic Fascism began five administrations ago in 1979, and took us 20+ years to recognize reality. So, rather than shouting at each other, we should focus on helping whomever is President win this damnable war.

Another contribution from a different contributor:
“This may not be the most articulate response ever, but Dennis Kucinich is an absolute whackjob. Please tell me where we are imprisoning children? And what's wrong with permanent military bases in Iraq? We have bases in several countries, and if the host country says they don't want us there any more, we leave (i.e., The Philippines with Subic Bay and Clark AB).
“Kucinich demonstrates he is in the realm of people who believe everything is America's fault. Sure, we've screwed up many times, but what we are trying to do over in Iraq is being done with the best of intentions . . . at least by a majority of the people on the ground. I should introduce Kucinich to a guy in my writer's critique group who believes the fence along the border . . . excuse me, proposed fence of which they've constructed, whaat, about 15 or 20 feet? Anyway, the guy says the fence is being built not to keep out illegal immigrants, but to keep us from leaving the country. ?????????. Where do people come up with these ideas? Worst is, someone like Kucinich is part of the kook fringe and is in a position of power.”
My response:
Dennis the Menace is on the list of congressional space cadets, but that does disservice to our noble astronauts. Personally, I think Dennis is just a parochial political hack who despises everything Republican, or rather non-Democratic, and conservative, or rather non-liberal. Some of his vitriolic rhetoric reminds me of the mindless tripe we hear all too often from those who pander to a narrow segment of our population. I don’t know that folks like Dennis are anti-American so much as they are unthinking consumers of political pabulum. The sad part is, it is hard not to laugh at Kucinich.

Yet, another contribution:
“Please read this two part piece by Jacob Hornberger- it speaks of the importance of habeus corpus and the danger your and Scalia’s arguments are to our democracy.”
http://www.fff.org/freedom/fd0801a.asp
My response:
I agree. We should be concerned about the Padilla case and our precious right to a writ of habeas corpus. No argument.
However, to understand the other side of the equation, I suggest the following reading:
Ex Parte Quirin [317 U.S. 1 (1942)] [U-170]
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=317&page=1
and
Johnson v. Eisentrager [339 U.S. 763 (1950)] [U-312]
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=339&page=763
. . . round two:
“This is really interesting, and I am no expert, but I sense a disparity in perception of what has taken place at Gitmo. Your view that these guys were fighters caught on a battlefield is too broad and inaccurate, I think. They were ransomed, kidnapped, grabbed in roundups, etc, and many only vaguely connected to people we consider enemies. Few were captured on the battlefield, I understand. The prison riot where John Walker Lindh was captured has much controversy surrounding it, including his eventual trial. See Jessalyn Radack's story, e.g. You might disagree, and I think that if each individual case of the remaining 270 or so could be openly discussed we might find some serious breaches of human rights, on anybody's scale. The torture put to Sheik Mohammed, and others basically ruins any fair trial or truth-finding about them whether in civil or military tribunal. This has all been a calamity from the start. Criminals pirated planes and destroyed life and property. Remember that Osama denied any involvement originally, the tapes of his admitting it later are highly controversial, and the Taliban were our buddies. There has never been an investigation to find out why we were so negligent and derelict in our reaction on 911- Remember Able Danger? The Northern Alliance were Soviet puppies, weren't they? and yet we went after the whole country of Afghanistan- and then illegally attacked Iraq. This is the worst period in American history and would that there would be some accountability. I'll read the second case as well but I feel I will fall on the side of those who want to protect and exercise the sacred rule of habeus corpus- indefinite retention without charge is not American. It is totalitarian from any angle. Congress has been at fault in giving the Pres the powers he does not have constitutionally- namely the power to disregard the Constitution and the Judges who put this Pretender in power should somehow be held accountable for their unigue ruling. Scalia will probably go down as one of the worst Sup Ct judges in American History- right along side the one who said slavery was OK- Taney. It was not a small thing for that widely diverse, but immensely intelligent and well read group of men to draw up some rules for us to live by and we have at our peril disregarded them- such as habeus corpus and the 4th amendment.”
. . . my response to round two:
Considering how this administration has abused the PATRIOT Act, and other excesses, I would not be surprised if the administration is abusing the Guantánamo Bay detention and rendition processes. Until I have hard, corroborated evidence of such abuse, I choose to give the President the benefit of the doubt. He is charged by Article II, Section 2, of the Constitution to protect and defend the United States of America. In deference to that awesome responsibility, I give the President broad latitude to do what he thinks is best to fulfill his responsibilities.
Yes, absolutely, some, perhaps even most, of the detainees were not captured in the classic battlefield scenario of force-on-force, combat operations. Nonetheless, as with the Lakhdar Boumediene case, we are engaged in a global, non-traditional, non-conventional war. The battlefield of which I speak bears no resemblance to the classic battlefields of yesteryear. Thus, captives will be rendered into detention from a myriad of situations and conditions, as Boumediene was. What separates battlefield combatants in the War on Islamic Fascism from common criminals is the ideological basis of their aggression, the use of terrorism as their weapon, and their employment of mass injury to innocent people – none of those attributes are common to ordinary criminal conduct.
I find little compassion or mercy for guys like Lindh [U-16], Padilla [U-107], Gadahn [U-253], and the others – American citizens who have freely chosen to fight for the enemy. Their status has been clearly established by Ex Parte Quirin [317 U.S. 1 (1942)] [U-170]. They are lucky they have not been tried for treason and suffered the fate of traitors.
P.S.: And, if I am wrong, and the President has betrayed us and his oath, as Richard Nixon did, then I shall join the chorus of the mob seeking his head on a pike. Until then, he is the President of the United States of America, and I believe he is fulfilling his obligations under Article II, Section 2, as he sees fit, and he has not violated any law I am aware of . . . stretched, yes, but not broken.
. . . round three:
“I'm not sure what you would accept as evidence but there's plenty of it out there that prisoners in our custody have been tortured and murdered. If you are not aware of this, then I will have to question how open minded you are. Do you really want me to bombard you with links to such activity? Just a few quickly:
http://www.cnn.com/2007/POLITICS/10/10/carter.torture/
http://en.wikipedia.org/wiki/Abu_Ghraib_prisoner_abuse
http://www.forbes.com/work/feeds/afx/2005/06/24/afx2110388.html
http://www.aclu.org/safefree/torture/34923prs20080416.html
“I'm not sure where you're coming from in agreeing with Bush that we don't torture.”
. . . and my response to round three:
First, you can think of me as you will. I put my opinions into the public domain to elicit comment, debate and argument.
Second, I know quite well what some folks claim regarding virtually all aspects of the War of Islamic Fascism, including some who truly believe we are not at war, never have been at war, and that Americans are just being bullies.
Third, as I have stated many times, so many of these topics depend upon definitions, points of perspective, and to a certain extent, attitude. If we choose to see the negative, we see the negative. I remain suspicious and attentive to this administration, but at the end of the day, I still believe the President is doing what he believes is necessary to defend this Grand Republic.
No, I do not need you to bombard me with links. I believe I am quite familiar with the contrarian opinions. At the root of our disagreements is . . . I believe absolutely that we are at war, have been and will be at war, with or without a full and proper declaration of war, and that we have a choice to win or lose this war. I am a warrior, or at least I once was, and I think like a warrior, so please use that lens when interpreting my words.

Onto a different contributor regarding another topic from Update no.340:
“I couldn't let this one go.
[Re: my opinion: The impotent foolishness of the war on drugs continues [339].]
“In the dialog there appears to be a stance on taking a different approach to the drug war than what has arguably not worked in the past. There also appears to be a stance for legalization.
“I couldn't agree more on taking a different approach to fighting the drug war. I certainly don't have the answers required for taking on such an offensive. However, the Marine in me supports strongly the use of snipers.
“Now, if I may address the legalization aspect of drugs. Let me just preface my response with the following, and please keep in mind I did not have to search far for the following:
(my brother) - Cocaine induced Stroke: A burden to family and society
(brother of a childhood neighborhood friend) - Dead from overdose
(brother of a close high school friend) - Dead from overdose
(sister of friend) - Overcooked: A burden to family and society
(childhood neighborhood friend and fellow Boy Scout troop member) - Dead from overdose
(childhood neighborhood friend and swim team member) – Dead from overdose
(sister of friend) - Overcooked: A burden to family and society
(nephew to former fathering-law) - Overcooked: A burden to family and society
(former work acquaintance) - Overcooked: A burden to family and society
(childhood neighborhood friend) - Overcooked: A burden to family and society
(childhood neighborhood friend) - Overcooked: A burden to family and society
(former work acquaintance) - Overcooked: A burden to family and society
(former work acquaintance) - Overcooked: A burden to family and society
“The above represent a very small sampling from society, that being my very small world and these were just the examples that readily came to mind. There was/is an obvious cost, emotional and financial, involved until death or departure in these examples. This cost is borne by all of us, some more in familial ways and others in societal ways.
“This leads me to describe, as I remember it described to me, the situation in The Netherlands where drugs have been more-or-less legal for many years. A few years ago I had the privilege of working with a couple of officers from the Royal Netherlands Air Force. Aside from aviation and military talk, my natural inquisitiveness led me to inquire about life in The Netherlands. I learned that The Netherlands has a vast societal problem dealing with the large percentage of their population that has partaken in the use of legalized drugs for much of their lives. This portion of their population has become a burden to their families and to society. In addition to being non-productive members of society, they are an economic drain on both their families and the country's welfare system. So much for personal use.
“The ready argument here is that we have legalized alcohol. I really have no argument here other than an observation. Look at the devastation that has been incurred for many years due to alcohol abuse. Not only do the abusers suffer, but family members and society suffer as well. And need I mention all the innocent lives lost and lives destroyed by legal alcohol abuse. For the record, I do like a drink every now and then.
“Shall we take it a step further to tobacco? Granted, the loss of innocent lives, unless you want to consider whatever damage is caused by second-hand smoke, is non-existent to minimal in relation to the alcohol situation. However, the cost to society is great. Not only does the smoker suffer, but society suffers as well in rising medical costs borne by all of us. And need I mention the annoyance of smoke breaks or the aspect that a majority of smokers consider the world to be their ashtray.
“Taking even another step, what about food abuse? The abuser suffers. Society suffers. And I will readily admit that this is my weakness.
“But what I am trying to get at is where is the line drawn? Do we push the line to the other side of drugs and legalize drugs? What then? What next? Do we have fewer people dying from overdose? Do we have fewer people debilitated by strokes? Do we have fewer people getting overcooked? I am skeptical.
“The argument for legalization of drugs will probably and partially stem from infringement upon personal freedoms. But I ask: just how personal would legal drug indulgence be? If legalized, will the deaths, strokes, and fried brains of the drug users not impact family members or society in any way? Again, I am skeptical and I will leave it at that.”
My response:
We have disagreed on the legalization of drugs, and we shall continue to disagree. We can all cite the damage and destruction of drug abuse. I can cite mine as well if you wish. I am sorry for the loss that has touched your life and family. But, the urge to use the instruments of State to ease our pain is a box canyon with a not-so-pleasant end.
We can extend the destruction argument beyond drugs, alcohol and tobacco to motorcycles, skydiving, flying, downhill skiing, racing of all kinds, ad infinitum. There are probably many reasons that drugs are so destructive with some people, probably not substantially different from alcohol. My interest is not the psychology of abuse, but rather the impact upon our society. In blunt terms, how much of our freedom are we willing to sacrifice to protect individuals from themselves? For me, the bottom line is personal accountability; we are responsible for our actions – no one else, not our neighbor, not our minister, and not the government. The government can NEVER regulate our God-given, natural rights . . . as the Founders so eloquently proclaimed. And, when we turn to the government to control private behavior, we give up slivers or whole slices of our freedom – the very same freedom our ancestors risked their Lives, their Fortunes, and their sacred Honor to secure for future generations – us! So it is here. For those of us touched by drug use and abuse, reality is all too clear; the addict will never forsake his drugs until he reaches a point that he convinces himself that he must change course. Until that point is reached within his individual soul, there is absolutely nothing the rest of us can do to stop him. Some people reach that point and save themselves; some people don’t. Yes, the personal destruction of drugs, alcohol, tobacco, anonymous unprotected sex, or any other risky behavior is tragic; but, when you stand back and look at the societal destruction wrought in the name of the war on drugs, the scope of this disaster takes on gargantuan proportions. And, now, we have the Supreme Court mutating the Commerce Clause and expanding Federalism at the expense of our precious freedom of choice.
A short, little, distantly related, tragic, local story . . . A week ago, a young man went out and bought a powerful, crotch-rocket, motorcycle and died that same day when he crashed that bike. Who failed that young man? Who is responsible? The government? The motorcycle dealer?
The responsibility rests with parents. When we ignore risky behavior as an educational topic or fail to teach our children to be accountable for the choices they make before they are exposed to risky behavior, then we as parents have failed our children and society. The government can NEVER be a parent, can NEVER teach our children. The government by its very definition is and must be the lowest common denominator. If we want our children to have higher moral standards, then that teaching must come from parents. I take the parental responsibility even farther. When children violate society’s public standards, then the parents must be held accountable to the society they have failed. With freedom comes personal accountability; they are inextricably woven together. Pretending sex does not exist, or drugs do not exist, or tobacco is some distant vice, does not teach our children how to deal with those risks and temptations, or how to decide for themselves and understanding the consequences. Turning to government for that purpose will NEVER be successful and will only erode more of our freedom.
I have offered numerous proposals for dealing with drug abuse. To date, I have received no counter-proposal or even much criticism of my proposals. I truly believe the so-called war on drugs created by Richard Nixon will have only one outcome – less freedom for all Americans.
I mourn the loss of human life for all or any reasons – hunger, drugs, war, STDs, tobacco, ad infinitum. Yet, I do not want anyone else and especially the government to tell me how to live my life, and the private choices I can make. The government has a responsibility to define acceptable public behavior, but it has no right whatsoever to dictate my private conduct (as long as I cause no injury to another citizen).
These are the challenges we face. The government is NOT the answer.
. . . round two:
“I really have no argument against what you have stated. I do not look for government to teach right from wrong. I look first for that to come from parents and then from church, although it could be argued that they are intertwined (our parents having the church upbringing before us).
“I certainly do not want more personal freedoms taken away. God knows how much I despise the TSA.
“You know, there is nowhere that I can go that will not solicit a just and sound argument against. Suffice it to say that those of us who try to do the right thing are doomed to pay for those who do not.”
. . . my reply to round two:
Unfortunately, as I have written [339/40, et al], Congress continues to search for innovative ways to spend money on useless crusades that have no hope of success. Like you, I am not eager to pay more taxes to compensate for the mistakes of others. My proposal would definitely cost precious tax dollars. Yet, my proposal includes diversion of current expenditures into more productive pursuits.
IMHO, one of the myriad of reasons drugs are so destructive is their use is illegal, and thus hidden from public view. We do not know who is supplying, who is using, who is abusing, et cetera. I truly believe that if the use of psychotropic substances were legal and open to public scrutiny, we would have far fewer abusers, reduced levels of destruction and collateral damage, improved ability to help those who truly seek help, and safe segregation of the fraction who are self-destructive. Like prostitution, we have no prayer of overcoming drug abuse as along as we allow it to fester and mutate out of public view, and to be fed by a prosperous blackmarket. The so-called war on drugs, since Nixon’s creation in 1970, has placed us on the direct course toward Oceania and Big Brother. If that is what we seek, then we are on the correct course. If we do not want to relinquish our personal Liberty to the nanny-State and Oceania, then we must change course and abandon these losing strategies that are destined to consume us.
Regardless, a change of course regarding drugs, prostitution, or any of the other sinful pursuits is highly unlikely in our lifetime. Hopefully, our children or their children will have the strength to reject the nanny-State before it becomes Oceania. The sad part for me remains vested in the paucity of any sign or even hint that We, the People, even recognize the threat to our freedoms or even the diminishment that has already taken root. I feel like a very lonely voice shouting into the cyclonic wind.
. . . round three:
“I don't know if legalization helps minimize the abuse and destruction. One has to consider the strain this has had on The Netherlands. The non-users in The Netherlands, the ones bearing the burden of the users, may debate strongly this issue.
“Please pardon my naïveté, but what is Oceania?
“As far as taxes are concerned, you know a sniper doesn't cost much in the overall scope of things such as the war on drugs.
“As far as recognizing the threat to our freedoms and the diminishment that has already taken place, I am with you. I believe many, many people are just plain oblivious.
“So you see, topics such as this get me in a tizzy. I want things to be a certain way but without jeopardizing our freedoms. I mostly feel that the machine, which takes on a life of its own, is moving in the wrong direction and we are powerless to stop it.”
. . . my reply to round three:
My proposal does not include the Netherlands laissez-faire approach. My proposal says basically you can buy drugs like alcohol to be used in private; public intoxication or compromise would be handled like alcohol, i.e., you buy, you use in private, and as long as conduct remains acceptable in public, all is well. Those who can’t buy or violate the public conduct go to drug camps, where they can get as much of any drug they wish for free, as long as they remain no threat to public safety. There is more to it than that, but that’s the gist. It takes a very sober view . . . if you are bent of self-destruction, we’ll help you peacefully along your way. The objectives would be:
1.) stop the black-market and criminal sub-culture,
2,) keep drug abusers from hurting any innocent citizen, and
3.) place drug abuse in public view where it can be monitored and regulated.
Oceania is the fictional country of “1984” infamy.
I know what you mean about the use of snipers. If the drug pushers were forcing people to get hooked to further their biz, they I’m with you. Vigilante justice does have some resonance, but I would rather the law handle the violators – the real criminals. The users are hardly criminals; they are generally confused souls who simply wish to zone-out and not be productive citizens. Trying to stop the tide is far harder than using the tide in a productive manner. The cost to society is far greater trying to stop drug use, than it would be to help those so inclined along their way, beyond public disturbance.
I’m sure our forefathers felt the same way when faced with the enormous reach and power of the Crown, but they persevered and overcame. We can too, if we put our minds to it. The People corrected the nonsense of the 18th Amendment; we can change the law.
. . . round four:
“Oh my, do I feel stupid. I should have known ‘1984.’
“I hope you realize that when I mention the use of snipers I am referring to the upper echelon of the illegal supply chain. I can't help but feel that people in the business may opt for a different profession if they knew their likelihood for longevity in the business would be short-lived and violently ended.
“By the way, I like your plan.”
. . . and my response to round four:
People who do not respect human life like the drug lords don’t deserve more than a 175 grain bullet fired from better than a kilometer.
If you like my plan, then all we need to do is convince 150 million of citizens and we can reclaim our freedom and put the government back in its proper place.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)

17 June 2008

Update no.340

Update from the Heartland
No.340
9.6.08 – 15.6.08
Blog version: http://heartlandupdate.blogspot.com/
To all,
In recent years, the end of the Supreme Court term has seemed to be quite frenetic, and this terminus is no less so. Add in the feverish pace of Congress trying to wedge in all their porky-pork, largesse earmarks before the summer break and the fall election season and we have a plethora of topics that demand attention. So, let’s get it on!

The follow-up news items:
-- The biggest news this week was the Supreme Court’s decision regarding the appeal of Boumediene v. Bush [DC CCA no. 05-5062 (2007)] – a Guantánamo detainee habeas corpus petition [273, 278, 313]. By a narrow 5-4 majority, the Supremes threw a major obstacle in the path of our ability to wage war successfully. More on this case is offered below.
-- As an interesting and appropriate follow-up to last week's firing of the top Air Force leaders [339], I suggest reading this article:
"The U.S. Air Force and the Next War"
by George Friedman
Strategic Forecasting Inc.
Published: June 11, 2008; 17:06 GMT
http://www.stratfor.com/weekly/geopolitical_weekly_u_s_air_force_and_next_war
-- The impotent foolishness of the war on drugs continues [339]. The latest effort to pour money down a bottomless rat hole offered up by Representative Howard Lawrence Berman of California is titled: the Merida Initiative to Combat Illicit Narcotics and Reduce Organized Crime Authorization Act of 2008. [H.R. 6028]. The House passed the bill [311-106-0-16 (2)] and sent it to the Senate, where it was referred to the Judiciary Committee. The bill directs the President to:
"(1) address U.S. demand-related aspects of the drug-trafficking phenomenon;
"(2) combat the southbound flow of illegal precursor chemicals and bulk cash transfers into Mexico; and
"(3) implement and measure the success of activities taken under this Act."
There is one surefire way to eliminate drug-trafficking . . . legalize and regulate it like alcohol (1933). Someday we will learn that trying to regulate private behavior in a free society is not possible; we either allow people to live their lives as they choose or we forfeit our freedom. Laws like H.R. 6028 continue us on the inexorable march toward the latter condition. And, we remain blind to reality. Nonetheless, in true Quixote-esque fashion, I shall continue my lonely quest.
-- Zimbabwe has scheduled a runoff election in two weeks. Dictator Robert Mugabe has unleashed his goons in a manner not unlike (to allow the double negative) the heyday of Germany’s National Socialist Workers Party (AKA Nazis) and the Night of the Long Knives (29/30.June.1934) and the infamous Night of Broken Glass (9.November.1938; AKA Kristallnacht). The evidence against Mugabe continues to pile up, and the World does virtually nothing.
-- The Space Shuttle Discovery successfully returned to Earth, ending an accomplished STS-124 mission to the International Space Station. The NASA Educational Channel provided exceptional coverage from the reentry burn to the safe-ing of the vehicle on the runway at Kennedy Space Center. Well done, lads!

Former presidential candidate, Representative Dennis John Kucinich of Ohio introduced 35 articles of impeachment against President George W. Bush, taking 64 pages to describe his rationale. The list is probably the most descriptive and thus provided below.
http://chun.afterdowningstreet.org.nyud.net:8080/amomentoftruth.pdf
This follows his two attempts to impeach Vice President Dick Cheney last year. In such instances, I cannot resist offering my opinion. So, here it is. Articles that have sufficient merit to justify congressional inquiry are in blue. The articles in black are pretty iffy, and the ones in red only demonstrate how ludicrous the whole foolish initiative by the diminutive, marginal, Ohio representative really is. Speaker of the House Pelosi has indicated this action will go nowhere, and rightly so.
Article I -- Creating a Secret Propaganda Campaign to Manufacture a False Case for War Against Iraq.
Article II -- Falsely, Systematically, and with Criminal Intent Conflating the Attacks of September 11, 2001, with Misrepresentation of Iraq as a Security Threat as Part of Fraudulent Justification for a War of Aggression.
Article III -- Misleading the American People and Members of Congress to Believe Iraq Possessed Weapons of Mass Destruction, to Manufacture a False Case for War.
Article IV -- Misleading the American People and Members of Congress to Believe Iraq Posed an Imminent Threat to the United States.
Article V -- Illegally Misspending Funds to Secretly Begin a War of Aggression.
Article VI -- Invading Iraq in Violation of the Requirements of HJRes114.
Article VII -- Invading Iraq Absent a Declaration of War.
Article VIII -- Invading Iraq, a Sovereign Nation, in Violation of the UN Charter.
Article IX -- Failing to Provide Troops with Body Armor and Vehicle Armor
Article X -- Falsifying Accounts of US Troop Deaths and Injuries for Political Purposes
Article XI -- Establishment of Permanent U.S. Military Bases in Iraq
Article XII -- Initiating a War against Iraq for Control of That Nation's Natural Resources
Article XIIII -- Creating a Secret Task Force to Develop Energy and Military Policies With Respect to Iraq and Other Countries
Article XIV -- Misprision of a Felony, Misuse and Exposure of Classified Information and Obstruction of Justice in the Matter of Valerie Plame Wilson, Clandestine Agent of the Central Intelligence Agency
Article XV -- Providing Immunity from Prosecution for Criminal Contractors in Iraq
Article XVI -- Reckless Misspending and Waste of U.S. Tax Dollars in Connection With Iraq and US Contractors
Article XVII -- Illegal Detention: Detaining Indefinitely and Without Charge Persons Both U.S. Citizens and Foreign Captives
Article XVIII -- Torture: Secretly Authorizing, and Encouraging the Use of Torture against Captives in Afghanistan, Iraq, and Other Places, as a Matter of Official Policy
Article XIX -- Rendition: Kidnapping People and Taking Them Against Their Will to "Black Sites" Located in Other Nations, Including Nations Known to Practice Torture
Article XX -- Imprisoning Children
Article XXI -- Misleading Congress and the American People About Threats from Iran, and Supporting Terrorist Organizations Within Iran, With the Goal of Overthrowing the Iranian Government
Article XXII -- Creating Secret Laws
Article XXIII -- Violation of the Posse Comitatus Act
Article XXIV -- Spying on American Citizens, Without a Court-Ordered Warrant, in Violation of the Law and the Fourth Amendment
Article XXV -- Directing Telecommunications Companies to Create an Illegal and Unconstitutional Database of the Private Telephone Numbers and Emails of American Citizens
Article XXVI -- Announcing the Intent to Violate Laws with Signing Statements
Article XXVII -- Failing to Comply with Congressional Subpoenas and Instructing Former Employees Not to Comply
Article XXVIII -- Tampering with Free and Fair Elections, Corruption of the Administration of Justice
Article XXIX -- Conspiracy to Violate the Voting Rights Act of 1965
Article XXX -- Misleading Congress and the American People in an Attempt to Destroy Medicare
Article XXXI -- Katrina: Failure to Plan for the Predicted Disaster of Hurricane Katrina, Failure to Respond to a Civil Emergency
Article XXXII -- Misleading Congress and the American People, Systematically Undermining Efforts to Address Global Climate Change
Article XXXIII -- Repeatedly Ignored and Failed to Respond to High Level Intelligence Warnings of Planned Terrorist Attacks in the US, Prior to 911.
Article XXXIV -- Obstruction of the Investigation into the Attacks of September 11, 2001
Article XXXV -- Endangering the Health of 911 First Responders
One little closing comment . . . if we are going to impeach the President every time some faction or another disagrees with his decisions, we shall have to endure a very bumpy road on the way to the abyss. Our choice entirely.

As noted above, the big news this week was the Supreme Court’s Boumediene v. Bush [552 U.S. ___ (2008); no. 06-1195] ruling in a long string of court attempts to resolve the ambiguity of the Guantánamo Bay detainees. Under challenge, the Detainee Treatment Act of 2005 [PL 109-148] and the Military Commissions Act of 2006 [PL 109-366] [251, 254] defined the legal process available to stateless, battlefield combatants captured and detained by the Allies. The single, last sentence from Antonin Scalia’s incisive dissent best describes the importance of this decision – “The Nation will live to regret what the Court has done today.” Associate Justice Anthony McLeod Kennedy delivered the opinion of the Court and concluded, “In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom's first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers” – a contrast of extremes. The title petitioner in this complex case is Lakhdar Boumediene, a Bosnian Muslim militant, who was picked up by American forces in Bosnia along with five other colleagues, when they were released from a Bosnian prison. The majority’s opinion cites nothing of Boumediene’s circumstances of incarceration and hangs upon the indefinite duration of the present war and the importance of the writ of habeas corpus to the freedoms we enjoy. I laud the Court’s concern for the strength of our precious habeas corpus right, but the unprecedented extension of that right to enemy battlefield combatants portends dramatic unintended consequences. Again, as is so often the case, the dissenting opinions give us more insight into the issues and reasoning of the decision. Chief Justice John Roberts opened his dissenting opinion, “Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” This week’s Boumediene ruling significantly extends the reach of the Constitution and the writ of habeas corpus rights beyond our territorial limits and our citizenry. By doing so, the Court goes beyond the precedent basis of contemporary constitutional law as embodied by Johnson v. Eisentrager [339 U.S. 763 (1950)] [312]. The Court failed to recognize the state of war and thus chose to treat the detained battlefield combatants not as products of war, but rather as simple criminals and under criminal judicial processes. The lack of a full declaration of war and the associated legal instruments commensurate with such a congressional declaration created a condition of considerable ambiguity. The President did what he felt had to be done to protect this Grand Republic, and now some members of Congress and five Supreme Court justices condemn his choices. The reality is and should have been in this case that criminal law simply cannot apply on the battlefield. Such protections as unreasonable search and seizure, against self incrimination, Miranda rights, witnesses, rules of evidence, chain of custody, et cetera, ad infinitum, cannot be maintained; and, to do so, will get good men killed. The dissenting justices note the historic import of the Boumediene ruling. I understand and appreciate the extraordinary challenge faced by the Court. The War of Islamic Fascism will soon become the longest, combat war in American history; and as a result, the war presents unprecedented challenges to our sense of justice, fairness, and constitutional legality. Yet, my understanding of the rules of warfare in any chosen epoch has nothing to do with time. As von Clausewitz so succinctly stated, “war is simply diplomacy by other means.” The admixture of warfare and criminal jurisprudence cannot have a positive consequence. The fact that the Court’s slim majority in this case frets about the indefinite timeframe of the present war offers up an implicitly troubling notion that stateless transnational killers may well cripple and mortally wound this Grand Republic not on the battlefield but in the very judicial provisions intended to protect us. Giving detainees and lawyers access to related classified material during wartime is beyond idiocy, and yet now that is what has been opening to the enemy. Attempting to turn the battlefield into a criminal court room adds yet more obstacles to our ability to wage war successfully and defend the American People. We can add the Boumediene decision to political correctness, the Church Committee, and all the other ‘do-good-er’ nonsensical initiatives, attempting to make nice with our enemies on the battlefield. What a foolish, foolish thing to do. Can you imagine a conventional war like World War II, where we held 400,000 POW’s, and each of those captives petitioning the court for a writ of habeas corpus against wrongful detention? The fact that there were only a few hundred at Guantánamo Bay does not alter the significance. Scalia noted that 30 of those released so far have returned to the battlefield and were killed or recaptured. We did not choose this war. Yet, having the U.S. Supreme Court aiding and abetting the enemy hardly seems the intention of the Founders who framed the Constitution. I did not find the Court’s argument either compelling or even convincing; in fact, quite the contrary, the Boumediene decision leaves me profoundly saddened for the additional burdensome consequences our warriors will be asked to endure. As Kennedy noted, the Constitution and the American Republic will survive; in that, I agree. My worry remains . . . at what inordinate and unnecessary cost? Of course, the Court would not be happy with a ‘take no prisoners’ order, but that is indeed the de facto dilemma they have presented to our line combat forces. As with other poor, misguided decisions by the Supremes, this too, we shall overcome. The Boumediene ruling illuminates the enormous conflict and tension within a democratic system when half measures are used – ambiguity – and, the Executive, by that ambiguity, does not possess the unequivocal authorities he chooses to employ, even in times of war, invasion, insurrection or rebellion. The two (2) Authorization(s) for Use of Military Force [PLs 107-40 & 107-243] provide broad additional authority to the Executive, but it is hardly unequivocal as we once again bear witness. The foundation of the Boumediene majority’s opinion rests upon the sanctity of the writ of habeas corpus and the interpretation that the writ applies beyond the borders of the United States to those activities involving American citizens. I am thankful for the Court’s concern, but in this instance, the Court has gone too far for what appears to be political reasons. Scalia was spot on; we shall rue the day.

As a consequence to this forum, resultant from the Boumediene decision, numerous news items and topics had to be postponed to following weeks. The length and breadth of the Boumediene ruling exceeded my capacity to absorb and form an opinion.

We received no comments and contributions from Update no.339, this week, again!

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)

09 June 2008

Update no.339

Update from the Heartland
No.339
2.6.08 – 8.6.08
Blog version: http://heartlandupdate.blogspot.com/
To all,
The follow-up news items:
-- It is finally over! Phase 2 of the current silly season has ended; Phase 3 began on Saturday when Senator Hillary Rodham Clinton conceded. Senator Barack Hussein Obama gained the requisite number of delegates to clinch the Democratic Party nomination. Congratulations, Barack! Well done! Regardless of our political affinities and affiliations, we must give Hillary the respect and kudos she deserves for standing up to the mark, enduring the extraordinary punishment of a national campaign, and coming oh so close. Americans will have some interesting choices. Obama is the best rhetorical speaker of the bunch. Clinton was probably the most elect-able among the two; she was most competitive in the large swing states that the Democrats must carry to beat McCain. Obama played to the Democratic voters, while Clinton attempted to build a centrist position the Democrats must have to win. The Democratic Party voters have made their choice; we shall see how wise the choice.
-- On the other side, John McCain stands to make his own history. Yet, the Left has been trying mightily to paint McCain as Bush III, well to the Right, when his entire career has been as a moderate crossing back and forth attempting to find solutions, e.g., the filibuster breakers, the immigration compromise, et al. So it begins.
-- As a result of the Texas state appeals process [337, 338], 51st District Court Judge Barbara Walther issued the orders to comply and return most of the children to their parents at the YFZ Ranch. The exact number being returned is somewhat fuzzy, but whatever the number, I imagine it does not include all the minor children. Presumably, the minor child-mothers will remain in state custody, as presumed victims of statutory rape at a minimum. I say this with hesitation as I am not convinced the state law is correct; perhaps this is a good topic for discussion / debate. Life outside the compound may have irreparably changed some of the children. Nonetheless, this case enters another phase and remains far from over.
-- Another reason the war on drugs is un-win-able and should be abandoned in favor of legalization and regulation – the law.
[112, 117-120, 127-8, 183, 191, 194, 197, 199, 200,
204, 215, 220, 234, 269, 284, 290, 297-8, 322]
The 4th Amendment attempts to protect us from “unreasonable search and seizure” by the State, but the Supreme Court has distorted the Commerce Clause far beyond reasonable federalism. Unless we are willing to give up our liberty and allow the State to monitor all our private activities, the foolish war on drugs will continue to be a simple band-aid on a gaping wound. Since no one has the chutzpah to stand up and do the correct thing, we shall blindly allow the government to continue eroding our independence, our liberty, and the very freedom we prize so highly – amazing how the sheep mentality works. I guess the majority will not get angry until law enforcement shows up in their bedroom or breaks down their front door because some anonymous antagonist claims they have drugs in the house.
-- On Thursday, Secretary of Defense Robert Michael Gates asked for and received the resignations of Secretary of the Air Force Michael W. Wynne and Chief of Staff of the Air Force General Teed Michael Moseley, USAF -- an unprecedented action, to my knowledge. One of the talking heads noted that Rumsfeld was all bark, but Gates is all bite. I expect this will be a positive change for the Air Force and the Defense Department.
-- First Lieutenant Andrew A. Grayson, USMC, was found not-guilty in his general court martial on charges of obstruction of justice related to the so-called Haditha massacre that sparked Representative John Murtha's condemnation [234, 276]. Five other enlisted Marines had their charges dropped. Only one of the Haditha Marines remains under charges and awaiting his trial, Staff Sergeant Frank Wuterich, USMC. Unfortunately, any career these Marines may have sought has vanished in the service of political correctness. God bless them for their service to this Grand Republic, and from one proud citizen, I apologize for the trauma they had to endure in the aftermath of combat.
-- On Thursday, near Kauai, Hawaii, a Scud-like ballistic missile was fired into the Pacific missile test range. On the other end of that missile's trajectory lay the USS Lake Erie (CG-70) -- the same ship that destroyed that rogue spy satellite last February [324]. The crew of the Lake Erie fired two Standard SM-3 missiles at the incoming short-range missile -- another success.

The title pretty well says it all.
“US: security’s bottom line -- How the most powerful nation disabled itself”
by Tom Engelhardt
Le Monde Diplomatique
Published: 3.June.2008
http://mondediplo.com/2008/06/06ussecurity

On the 22nd of May, Representative Doctor Paul Collins Broun Jr. of Georgia introduced a proposed amendment to the U.S. Constitution, titled the “Marriage Protection Amendment” (MPA) [H.J.Res. 89]. The text of the amendment reads, “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.” Before I jump into this, I shall offer a little relevant background. Broun was elected to the House of Representatives in a special election in June 2007. Since then, he has been busy. As you may recall, Broun also introduced the Military Honor and Decency Act [H.R. 5821] [335] to further restrict the access of military personnel to pornographic material. When he was elected, Broun pledged [295] to carry a copy of the Constitution with him at all times, and to apply four tests to his House votes:
1. Is it constitutional and a proper function of government?
2. Is it morally correct?
3. Is it something we really need?
4. Is it something we can afford?
We can dispense with the last three questions. I am certain he feels the MPA is really needed; it is clearly affordable as it costs him nothing; and, I am quite sure he believes the MPA is morally correct. Where the MPA fails Broun’s legislative test is in the first question. Regulating the private lives of citizens is NOT the ‘proper function of government,’ and no one, including Broun or his proposed amendment, has provided rationale to justify the extraordinarily personal imposition upon the lives of every citizen. Lastly and most importantly, Broun and his MPA fail the most fundamental test of constitutionality; he is proposing an imposition of every citizen’s freedom of choice to achieve their “Life, Liberty, and pursuit of Happiness.” The uber-Right claims and professes that the Constitution offers no protection to a citizen for certain medical procedures, and that states should regulate medical practice. Now, they wish to modify the Constitution to legally discriminate against a class of citizens that seeks private relationship choices that do not conform to Broun’s image of ‘normal.’ I trust both H.J.Res 89 and H.R. 5821 will meet the fate they deserve – death by neglect. The government needs to remove itself from the private morality business. The private domain belongs to each and every citizen – NOT the government or some fraction of our society. I suggest Broun go back to the Constitution he claims to carry at all times and re-read the 9th Amendment; the text is actually quite simple and direct.

California Secretary of State Debra Bowen qualified the 8th Initiative on the November ballot -- a constitutional amendment titled: "California Marriage Protection Act" -- that if passed by the electorate will add Section 7.5 to Article I to the state constitution and simply reads:
"Only marriage between a man and a woman is valid or recognized in California."
So, it is official, the residents of California shall vote on whether to deny 'equal protection under the law' to those citizens who freely choose their pursuit of Happiness. Another initiative is before the Secretary of State not yet sanctioned; the title of the pending amendment is: "The Voters' Right to Protect Marriage Initiative," and goes beyond Initiative 8 to resend the 'domestic partnership' rights passed by the legislature in the California Domestic Partner Rights and Responsibilities Act of 2003. Chief Justice Warren Earl Burger wrote, “[I]t is irrelevant that the voters rather than a legislative body enacted [the challenged law], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.” The difference in this instance rests in amending the constitution and removing the law from judicial review, thus making the law legal discrimination. The truth is that if a sufficient majority of citizens are intent on reinstating slavery, or denying women the right to vote, or imposing alcohol prohibition again, they can do so by passing a constitutional amendment. Doing so hardly makes it correct and would fundamentally alter the course of this Grand Republic. I trust Californians will see Initiative 8 for what it is.

We received a clarion warning in 1973. While we moaned and groaned about the price of petrol, long lines at the gas pump, and protested the capriciousness of OPEC (Organization of the Petroleum Exporting Countries), we failed to heed the warnings. Here we are 35 years later, moaning and groaning again. C’est la vie! The specter of global warming [215] allegedly produced by exhausting massive amounts of carbon dioxide, nitrous oxide, complex fluorocarbon compounds, and such, amplifies the reality that there are finite sources of fossil fuels. Add to this odiferous stew, the exponential increase in demand for fossil fuels by China and India, it should be no surprise to anyone that the price of a barrel of oil has skyrocketed. This time around as compared to 1973, we can include a greater world population, supply stress on agricultural exporting countries, and induced pressure on food grain supply and thus price, and the resultant food crisis in over-populated, under-producing countries. Politicians have bandied about their incessant empty promises of resolve toward energy independence, and yet, here we are once again, at the mercy of OPEC. Whether we choose to recognize or acknowledge the current energy crisis does not alter the reality of its consequences. We have choices . . . at least today. We can heed the clarion call this time around, or we can allow events to dictate our de facto policy until the consequences become violence to ensure our very survival. I advocate preemptive action rather reactive folly. The reason(s) or rationale for weaning ourselves off fossil fuels is irrelevant, doing so is the logical, progressive, intelligent thing to do. We should have hunkered down in the aftermath of 1973. I pray we have the will and leadership to do so today. The objective of my Energy Project [335] proposal is elimination of fossil fuel usage, and includes several key elements: 1.) Federal research leadership, 2.) Federal infrastructure development, and 3.) realignment of Federal priorities, programs and agencies to focus on the objective. I have used the U.S. Government’s Manhattan Project as an example of national focus to achieve a common objective. The notion of nuclear mass-energy conversion was popularly expressed in Albert Einstein’s 1905 Special Theory of Relativity. Nuclear research began in the academic community predominately in Europe and principally in Germany shortly after Einstein’s expression of the potential. With the ominous clouds of war billowing in the late 1930’s, the perceived progress in Germany reached a sufficient level to convince numerous physicists to cajole Einstein to write a personal letter of warning to President Roosevelt in August 1939. The President directed a secret study that ultimately led to the creation of the Manhattan Project in June 1942. Over the next three years, the U.S. Government secretly developed the unprecedented technology necessary to produce the first fissionable material and the Trinity device, detonated in July 1945. The Government went on to develop fusion technology and the infrastructure to produce an arsenal of nuclear and thermonuclear devices from small artillery projectiles to massive 20MT bombs, and begat the nuclear power industry. The Manhattan Project and its derivatives were war consequences, i.e., if it hadn’t been for the war, we may never have developed the technology that led to nuclear propulsion and nuclear electricity generating plants. We need focus, concentration and leadership, as we did in the Manhattan Project days, to achieve energy independence from fossil fuels [by which I mean: petroleum (oil), natural gas, and coal]. In 1942, it was war and the President of the United States that made it happen. The Manhattan Project cost an estimated $2B [$24B in today dollars]. A comparable, non-war, national project was Kennedy’s Man-to-the-Moon effort -- a national commitment "of landing a man on the Moon and returning him safely to the Earth." The Apollo Project cost an estimated $25B [$146B in today dollars]. Similar conditions apply today; all we are missing is a President to focus the nation on achieving the objective. The Plan will evolve once the objective and commitment are clearly defined and articulated. Some of the fledgling technologies exist today. Some of those technologies simply lack the infrastructure to be commercially viable. More importantly, the conversion of fossil fuel, electricity, power plants to other forms of power generation cannot be absorbed commercially and requires Federal support. Drilling for more oil is not the answer. Nuclear power is not the answer either, as there are finite supplies of fissile material, and the spent fuel is not particularly pleasant to deal with. We simply must think bigger with an eye to clean, renewal sources. During this process, I would also propose that we hold our fossil fuel resources in reserve to protect us against a loss of valuable resources needed for other non-energy purposes. As with the nuclear and space programs, the Energy Project will spur parallel and ancillary technology applications that are incalculable. As with threats to our national security in wartime, economic threats are no less significant. A national Energy Project such as this would send a clear, unambiguous message to the World, enable us to focus our research, manufacturing and labor resources toward a beneficial common objective, and would allow us to eliminate the primary source of smog, greenhouse gases, and considerable pollution. We have done it before, and we can do it again. All we need is leadership; the rest will come with the flow.

There are not many court documents more revolting and nauseating to read than abortion rulings. Unfortunately, for me, it is also one of the battleground arenas in the conflict between public and private, and between the government and We, the People; thus, every decision becomes a matter demanding the utmost attention. The 4th Circuit Court of Appeals provided the latest sample a couple of weeks ago – Richmond Medical Center for Women v. Herring [4CCA No. 03-1821 (2008)]. The court had been enjoined by the U.S. Supreme Court – Gonzales v. Carhart [550 U.S. ___ (2007); no. 05-380] [280] – to reexamine the Virginia State Partial Birth Infanticide Act of 2003 [VA H.1541] (I am always thrilled by these emotionally inflammatory legislative titles) in the light of Carhart. The Virginia law mirrors the Federal Partial-Birth Abortion Ban Act of 2003 [PL 108-105]. Circuit Judge M. Blane Michael delivered the majority opinion for the three judge panel, and concluded, "We therefore affirm the district court’s ruling that declares the Virginia Act unconstitutional on the ground that it imposes an undue burden on a woman’s constitutional right to choose a (previability) second trimester abortion." In his dissenting opinion, Circuit Judge Paul Victor Niemeyer said, "[T]he State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." Therein lies the conflict. How do we find an appropriate balance between the mother and the fetus, between private and public, between the citizen and the State? So many of these cases deal with the mechanics of the process and the law as related to the process, but rarely deal with the ethics involved in such questions and decisions. The conflicts presented to King Solomon are as basic and fundamental as they can be – the classic tension between the rights of an individual citizen and the interests of the State. To the point, the State professes profound interest in the protection of a viable fetus, and yet displays absolutely no sensitivity or compassion for the unwanted child and little regard for the health of the mother. I have tried to understand the polarization and inability to compromise, and I have not found the key, as yet. It seems to me that so much of our failure to find a reasonable compromise solution hangs upon our prudishness toward sex and our inability talk about sex in frank, direct terms. All that aside, the 4th Circuit stood against expanding Virginia's deeper imposition upon a very private decision; the court's rationale was weak and thin, and will not add to the body of skillful jurisprudence regarding the abortion issue.

We had no comments or contributions from Update no.338.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)