Actually, it was a Christmas/Birthday present, but so far I love it.
31 January 2010
28 January 2010
The Ten Most Corrupt 2009
Judicial Watch.org
Judicial Watch, the public interest group that investigates and prosecutes government corruption, today released its 2009 list of Washington's "Ten Most Wanted Corrupt Politicians." The list, in alphabetical order, includes:
1. Senator Christopher Dodd (D-CT): This marks two years in a row for Senator Dodd, who made the 2008 "Ten Most Corrupt" list for his corrupt relationship with Fannie Mae and Freddie Mac and for accepting preferential treatment and loan terms from Countrywide Financial, a scandal which still dogs him. In 2009, the scandals kept coming for the Connecticut Democrat. In 2009, Judicial Watch filed a Senate ethics complaint against Dodd for undervaluing a property he owns in Ireland on his Senate Financial Disclosure forms. Judicial Watch's complaint forced Dodd to amend the forms. However, press reports suggest the property to this day remains undervalued. Judicial Watch also alleges in the complaint that Dodd obtained a sweetheart deal for the property in exchange for his assistance in obtaining a presidential pardon (during the Clinton administration) and other favors for a long-time friend and business associate. The false financial disclosure forms were part of the cover-up. Dodd remains the head the Senate Banking Committee.
2. Senator John Ensign (R-NV): A number of scandals popped up in 2009 involving public officials who conducted illicit affairs, and then attempted to cover them up with hush payments and favors, an obvious abuse of power. The year's worst offender might just be Nevada Republican Senator John Ensign. Ensign admitted in June to an extramarital affair with the wife of one of his staff members, who then allegedly obtained special favors from the Nevada Republican in exchange for his silence. According to The New York Times: "The Justice Department and the Senate Ethics Committee are expected to conduct preliminary inquiries into whether Senator John Ensign violated federal law or ethics rules as part of an effort to conceal an affair with the wife of an aide…" The former staffer, Douglas Hampton, began to lobby Mr. Ensign's office immediately upon leaving his congressional job, despite the fact that he was subject to a one-year lobbying ban. Ensign seems to have ignored the law and allowed Hampton lobbying access to his office as a payment for his silence about the affair. (These are potentially criminal offenses.) It looks as if Ensign misused his public office (and taxpayer resources) to cover up his sexual shenanigans.
3. Rep. Barney Frank (D-MA): Judicial Watch is investigating a $12 million TARP cash injection provided to the Boston-based OneUnited Bank at the urging of Massachusetts Rep. Barney Frank. As reported in the January 22, 2009, edition of the Wall Street Journal, the Treasury Department indicated it would only provide funds to healthy banks to jump-start lending. Not only was OneUnited Bank in massive financial turmoil, but it was also "under attack from its regulators for allegations of poor lending practices and executive-pay abuses, including owning a Porsche for its executives' use." Rep. Frank admitted he spoke to a "federal regulator," and Treasury granted the funds. (The bank continues to flounder despite Frank's intervention for federal dollars.) Moreover, Judicial Watch uncovered documents in 2009 that showed that members of Congress for years were aware that Fannie Mae and Freddie Mac were playing fast and loose with accounting issues, risk assessment issues and executive compensation issues, even as liberals led by Rep. Frank continued to block attempts to rein in the two Government Sponsored Enterprises (GSEs). For example, during a hearing on September 10, 2003, before the House Committee on Financial Services considering a Bush administration proposal to further regulate Fannie and Freddie, Rep. Frank stated: "I want to begin by saying that I am glad to consider the legislation, but I do not think we are facing any kind of a crisis. That is, in my view, the two Government Sponsored Enterprises we are talking about here, Fannie Mae and Freddie Mac, are not in a crisis. We have recently had an accounting problem with Freddie Mac that has led to people being dismissed, as appears to be appropriate. I do not think at this point there is a problem with a threat to the Treasury." Frank received $42,350 in campaign contributions from Fannie Mae and Freddie Mac between 1989 and 2008. Frank also engaged in a relationship with a Fannie Mae Executive while serving on the House Banking Committee, which has jurisdiction over Fannie Mae and Freddie Mac.
4. Secretary of Treasury Timothy Geithner: In 2009, Obama Treasury Secretary Timothy Geithner admitted that he failed to pay $34,000 in Social Security and Medicare taxes from 2001-2004 on his lucrative salary at the International Monetary Fund (IMF), an organization with 185 member countries that oversees the global financial system. (Did we mention Geithner now runs the IRS?) It wasn't until President Obama tapped Geithner to head the Treasury Department that he paid back most of the money, although the IRS kindly waived the hefty penalties. In March 2009, Geithner also came under fire for his handling of the AIG bonus scandal, where the company used $165 million of its bailout funds to pay out executive bonuses, resulting in a massive public backlash. Of course as head of the New York Federal Reserve, Geithner helped craft the AIG deal in September 2008. However, when the AIG scandal broke, Geithner claimed he knew nothing of the bonuses until March 10, 2009. The timing is important. According to CNN: "Although Treasury Secretary Timothy Geithner told congressional leaders on Tuesday that he learned of AIG's impending $160 million bonus payments to members of its troubled financial-products unit on March 10, sources tell TIME that the New York Federal Reserve informed Treasury staff that the payments were imminent on Feb. 28. That is ten days before Treasury staffers say they first learned 'full details' of the bonus plan, and three days before the [Obama] Administration launched a new $30 billion infusion of cash for AIG." Throw in another embarrassing disclosure in 2009 that Geithner employed "household help" ineligible to work in the United States, and it becomes clear why the Treasury Secretary has earned a spot on the "Ten Most Corrupt Politicians in Washington" list.
5. Attorney General Eric Holder: Tim Geithner can be sure he won't be hounded about his tax-dodging by his colleague Eric Holder, US Attorney General. Judicial Watch strongly opposed Holder because of his terrible ethics record, which includes: obstructing an FBI investigation of the theft of nuclear secrets from Los Alamos Nuclear Laboratory; rejecting multiple requests for an independent counsel to investigate alleged fundraising abuses by then-Vice President Al Gore in the Clinton White House; undermining the criminal investigation of President Clinton by Kenneth Starr in the midst of the Lewinsky investigation; and planning the violent raid to seize then-six-year-old Elian Gonzalez at gunpoint in order to return him to Castro's Cuba. Moreover, there is his soft record on terrorism. Holder bypassed Justice Department procedures to push through Bill Clinton's scandalous presidential pardons and commutations, including for 16 members of FALN, a violent Puerto Rican terrorist group that orchestrated approximately 120 bombings in the United States, killing at least six people and permanently maiming dozens of others, including law enforcement officers. His record in the current administration is no better. As he did during the Clinton administration, Holder continues to ignore serious incidents of corruption that could impact his political bosses at the White House. For example, Holder has refused to investigate charges that the Obama political machine traded VIP access to the White House in exchange for campaign contributions – a scheme eerily similar to one hatched by Holder's former boss, Bill Clinton in the 1990s. The Holder Justice Department also came under fire for dropping a voter intimidation case against the New Black Panther Party. On Election Day 2008, Black Panthers dressed in paramilitary garb threatened voters as they approached polling stations. Holder has also failed to initiate a comprehensive Justice investigation of the notorious organization ACORN (Association of Community Organizations for Reform Now), which is closely tied to President Obama. There were allegedly more than 400,000 fraudulent ACORN voter registrations in the 2008 campaign. And then there were the journalist videos catching ACORN Housing workers advising undercover reporters on how to evade tax, immigration, and child prostitution laws. Holder's controversial decisions on new rights for terrorists and his attacks on previous efforts to combat terrorism remind many of the fact that his former law firm has provided and continues to provide pro bono representation to terrorists at Guantanamo Bay. Holder's politicization of the Justice Department makes one long for the days of Alberto Gonzales.
6. Rep. Jesse Jackson, Jr. (D-IL)/ Senator Roland Burris (D-IL): One of the most serious scandals of 2009 involved a scheme by former Illinois Governor Rod Blagojevich to sell President Obama's then-vacant Senate seat to the highest bidder. Two men caught smack dab in the middle of the scandal: Senator Roland Burris, who ultimately got the job, and Rep. Jesse Jackson, Jr. According to the Chicago Sun-Times, emissaries for Jesse Jackson Jr., named "Senate Candidate A" in the Blagojevich indictment, reportedly offered $1.5 million to Blagojevich during a fundraiser if he named Jackson Jr. to Obama's seat. Three days later federal authorities arrested Blagojevich. Burris, for his part, apparently lied about his contacts with Blagojevich, who was arrested in December 2008 for trying to sell Obama's Senate seat. According to Reuters: "Roland Burris came under fresh scrutiny…after disclosing he tried to raise money for the disgraced former Illinois governor who named him to the U.S. Senate seat once held by President Barack Obama…In the latest of those admissions, Burris said he looked into mounting a fundraiser for Rod Blagojevich -- later charged with trying to sell Obama's Senate seat -- at the same time he was expressing interest to the then-governor's aides about his desire to be appointed." Burris changed his story five times regarding his contacts with Blagojevich prior to the Illinois governor appointing him to the U.S. Senate. Three of those changing explanations came under oath.
7. President Barack Obama: During his presidential campaign, President Obama promised to run an ethical and transparent administration. However, in his first year in office, the President has delivered corruption and secrecy, bringing Chicago-style political corruption to the White House. Consider just a few Obama administration "lowlights" from year one: Even before President Obama was sworn into office, he was interviewed by the FBI for a criminal investigation of former Illinois Governor Rod Blagojevich's scheme to sell the President's former Senate seat to the highest bidder. (Obama's Chief of Staff Rahm Emanuel and slumlord Valerie Jarrett, both from Chicago, are also tangled up in the Blagojevich scandal.) Moreover, the Obama administration made the startling claim that the Privacy Act does not apply to the White House. The Obama White House believes it can violate the privacy rights of American citizens without any legal consequences or accountability. President Obama boldly proclaimed that "transparency and the rule of law will be the touchstones of this presidency," but his administration is addicted to secrecy, stonewalling far too many of Judicial Watch's Freedom of Information Act requests and is refusing to make public White House visitor logs as federal law requires. The Obama administration turned the National Endowment of the Arts (as well as the agency that runs the AmeriCorps program) into propaganda machines, using tax dollars to persuade "artists" to promote the Obama agenda. According to documents uncovered by Judicial Watch, the idea emerged as a direct result of the Obama campaign and enjoyed White House approval and participation. President Obama has installed a record number of "czars" in positions of power. Too many of these individuals are leftist radicals who answer to no one but the president. And too many of the czars are not subject to Senate confirmation (which raises serious constitutional questions). Under the President's bailout schemes, the federal government continues to appropriate or control -- through fiat and threats -- large sectors of the private economy, prompting conservative columnist George Will to write: "The administration's central activity -- the political allocation of wealth and opportunity -- is not merely susceptible to corruption, it is corruption." Government-run healthcare and car companies, White House coercion, uninvestigated ACORN corruption, debasing his office to help Chicago cronies, attacks on conservative media and the private sector, unprecedented and dangerous new rights for terrorists, perks for campaign donors – this is Obama's "ethics" record -- and we haven't even gotten through the first year of his presidency.
8. Rep. Nancy Pelosi (D-CA): At the heart of the corruption problem in Washington is a sense of entitlement. Politicians believe laws and rules (even the U.S. Constitution) apply to the rest of us but not to them. Case in point: House Speaker Nancy Pelosi and her excessive and boorish demands for military travel. Judicial Watch obtained documents from the Pentagon in 2008 that suggest Pelosi has been treating the Air Force like her own personal airline. These documents, obtained through the Freedom of Information Act, include internal Pentagon email correspondence detailing attempts by Pentagon staff to accommodate Pelosi's numerous requests for military escorts and military aircraft as well as the speaker's 11th hour cancellations and changes. House Speaker Nancy Pelosi also came under fire in April 2009, when she claimed she was never briefed about the CIA's use of the waterboarding technique during terrorism investigations. The CIA produced a report documenting a briefing with Pelosi on September 4, 2002, that suggests otherwise. Judicial Watch also obtained documents, including a CIA Inspector General report, which further confirmed that Congress was fully briefed on the enhanced interrogation techniques. Aside from her own personal transgressions, Nancy Pelosi has ignored serious incidents of corruption within her own party, including many of the individuals on this list. (See Rangel, Murtha, Jesse Jackson, Jr., etc.)
9. Rep. John Murtha (D-PA) and the rest of the PMA Seven: Rep. John Murtha made headlines in 2009 for all the wrong reasons. The Pennsylvania congressman is under federal investigation for his corrupt relationship with the now-defunct defense lobbyist PMA Group. PMA, founded by a former Murtha associate, has been the congressman's largest campaign contributor. Since 2002, Murtha has raised $1.7 million from PMA and its clients. And what did PMA and its clients receive from Murtha in return for their generosity? Earmarks -- tens of millions of dollars in earmarks. In fact, even with all of the attention surrounding his alleged influence peddling, Murtha kept at it. Following an FBI raid of PMA's offices earlier in 2009, Murtha continued to seek congressional earmarks for PMA clients, while also hitting them up for campaign contributions. According to The Hill, in April, "Murtha reported receiving contributions from three former PMA clients for whom he requested earmarks in the pending appropriations bills." When it comes to the PMA scandal, Murtha is not alone. As many as six other Members of Congress are currently under scrutiny according to The Washington Post. They include: Peter J. Visclosky (D-IN.), James P. Moran Jr. (D-VA), Norm Dicks (D-WA.), Marcy Kaptur (D-OH), C.W. Bill Young (R-FL.) and Todd Tiahrt (R-KS.). Of course rather than investigate this serious scandal, according to Roll Call House Democrats circled the wagons, "cobbling together a defense to offer political cover to their rank and file." The Washington Post also reported in 2009 that Murtha's nephew received $4 million in Defense Department no-bid contracts: "Newly obtained documents…show Robert Murtha mentioning his influential family connection as leverage in his business dealings and holding unusual power with the military."
10. Rep. Charles Rangel (D-NY): Rangel, the man in charge of writing tax policy for the entire country, has yet to adequately explain how he could possibly "forget" to pay taxes on $75,000 in rental income he earned from his off-shore rental property. He also faces allegations that he improperly used his influence to maintain ownership of highly coveted rent-controlled apartments in Harlem, and misused his congressional office to fundraise for his private Rangel Center by preserving a tax loophole for an oil drilling company in exchange for funding. On top of all that, Rangel recently amended his financial disclosure reports, which doubled his reported wealth. (He somehow "forgot" about $1 million in assets.) And what did he do when the House Ethics Committee started looking into all of this? He apparently resorted to making "campaign contributions" to dig his way out of trouble. According to WCBS TV, a New York CBS affiliate: "The reigning member of Congress' top tax committee is apparently 'wrangling' other politicos to get him out of his own financial and tax troubles...Since ethics probes began last year the 79-year-old congressman has given campaign donations to 119 members of Congress, including three of the five Democrats on the House Ethics Committee who are charged with investigating him." Charlie Rangel should not be allowed to remain in Congress, let alone serve as Chairman of the powerful House Ways and Means Committee, and he knows it. That's why he felt the need to disburse campaign contributions to Ethics Committee members and other congressional colleagues.
Bloomberg's Billions Buy Opinions
NRA ILA
Friday, December 11, 2009
Understanding the Latest Anti-Gun "Poll"
This week, anti-gun New York City mayor Michael Bloomberg's anti-gun group, Mayors Against Illegal Guns, released the findings of a poll conducted by a political consulting firm called "The Word Doctors," whose slogan is "It's not what you say, it's what people hear." Word Doctors' president is a pollster who has been reprimanded by the American Association for Public Opinion Research and censured by the National Council on Public Polls, and who says that the key to polling is "to ask a question in the way that you get the right answer."
At some other time in our nation's history, an organization like this would not have been commissioned to conduct a poll, and perhaps it would not even have existed. At a minimum, its poll would have been considered biased and rejected by every newspaper in the country.
But today, as the distinction between editorials and news has become blurred, information is treated so superficially that a catchy word or two is enough to get someone elected to public office, and some in positions of authority cannot conceive of the concept of shame.
Thus, earlier this week, Washington Post columnist E.J. Dionne and Sen. Frank Lautenberg (D-N.J.) excitedly called attention to the bought-and-paid-for Word Doctors "poll," which claimed that a majority of NRA members and other gun owners support Lautenberg's bills to prohibit the possession of firearms by people placed (often mistakenly) on the FBI terrorist watchlist (S.1317), to require gun show promoters to send ledgers of customer information to the federal government (S.843), and to let the FBI retain records for 180 days of every gun purchase approved by the National Instant Criminal Background Check System (NICS) (S.2820). The poll also claimed support for Bloomberg's proposal to rescind the Tiahrt Amendment, which prevents unfettered release of BATFE firearm trace data. (Bloomberg, of course, wants to use the data in lawsuits against the firearms industry.)
But did the poll really show such strong support? Certainly the participants didn't have much information to go on. The poll didn't explain that the watchlist has been under fire by the Department of Justice's Inspector General's office and the ACLU for improperly including the names of innocent people, and that many innocent people have been mistaken for those who are on the watchlist. It didn't explain that Lautenberg's gun show bill would do much more than require NICS checks on private gun sales at gun shows.
The poll mischaracterized the issue of NICS record retention. Instead of informing poll participants that the accused Ft. Hood murderer had been investigated by the FBI and found to not constitute a terror threat months before he went through a NICS check to purchase the gun he allegedly used in the murders, the poll simply asked whether "the FBI should be able to access and keep information about gun purchases by terror suspects in cases similar to [the accused Ft. Hood killer's]?" Worse, Word Doctors misinformed poll participants by telling them that the accused killer was still under investigation at the time he purchased the gun.
The poll also asked if participants agreed that "The federal government should not restrict the police's ability to access, use, and share data that helps them enforce federal, state and local gun laws," when in fact the Tiahrt Amendment fully allows access to trace information, as long as it's related to crimes that they're actually investigating.
And the poll also claimed that a majority of gun owners want to "balance" their rights against the need to stop criminals from getting guns. But what it actually asked was whether gun owners agreed that "We can do more to stop criminals from getting guns while also protecting the rights of citizens to freely own them." Coupled with the poll's findings that an overwhelming majority of gun owners believe "Criminals . . . should be punished to the maximum extent of the law" and "Law-abiding Americans should have the freedom to choose how to protect themselves, based on their personal situation," it's fair to conclude that gun owners understand the two concepts aren't mutually exclusive. Since the ideas are compatible, they don't require a "balance," as suggested by gun control supporters.
Notably, Lautenberg mentioned none of the poll's findings that undercut the anti-gun agenda, and Dionne mentioned few. These include findings that an overwhelming majority of gun owners:
* Thinks President Obama will try to ban guns;
* Agrees that the Supreme Court's decision in last year's Heller case was correct;
* Agrees that the Second Amendment should prevent all levels of government from infringing the right to arms;
* Agrees that people should be allowed to carry guns for protection in national parks;
* Agrees that people should be allowed to transport firearms in baggage on Amtrak trains;
* Agrees that gun laws should be less strict or left as they are; and
* Opposes or is neutral about gun registration and an "assault weapon" ban.
One final note: Since Word Doctors had no access to NRA membership lists, there's no way the pollsters could verify that any of the "NRA members" actually were NRA members. While this is a fatal flaw, we mention it at the end only because the poll's other flaws were even worse.
27 January 2010
Obama Changes Message, Trips Up
Jillian Bandes
President Obama delivered a State of the Union address that was very different than the one he was planning on giving just a few weeks ago.
The State of the Union was supposed to be a victory speech for health care. It was supposed to showcase lower unemployment numbers, and a stronger national defense effort, buttressed by his recent shift of troops to Afghanistan.
Instead, the speech was an omnibus apology by President Obama on his failure to accomplish anything.
"We face big and difficult challenges. And what the American people hope – what they deserve – is for all of us, Democrats and Republicans, to work through our differences; to overcome the numbing weight of our politics," said Obama.
No actual apology was made, of course. But it was clear by the tone of his voice, and the frequent references to agenda items that were unlikely to be accomplished, that there was little room for optimism.
The issue in the speech most demonstrative of his apologetic approach was, of course, the health care. All Obama said on the issue was a somewhat timid reminder that people should "take a second look" at an effort which even Democrats think will probably be futile. He said he didn't get into the issue to make friends, and then quickly recognized his wife for her "healthy kids" initiative. The brevity of his remarks health care demonstrated a further resignation to failure; the issue dominated his schedule just a few weeks ago.
Instead, the Obama talked about jobs – a key political action item for the 2010 mid-terms, and his own re-election in 2012. He honed in on a “jobs bill” that ostensibly pushed small business investment, infrastructure, and manufacturing, with an emphasis on “green jobs.” It would potentially use the remainder of the $700 billion that hasn’t been used for the financial bailout program.
Scott Hodge, the president of the Tax Foundation, said using that money for a jobs bill was exactly opposite of the approach the President should have taken towards decreasing unemployment.
"The most harmful taxes for economic growth are high corporate taxes, and high personal income taxes. The U.S. has the second highest corporate tax rate in the world," said Hodge. "He's acting contrary to what the real current wisdom is to not only foster, but sustain long term economic growth."
Obama’s other big push was for a “spending freeze,” which critics have viewed as throwing ice cubes at a forest fire. The freeze would be a partial, 3-year cut in “discretionary spending” – less than 1 percent of the federal budget. This has received widespread criticism, such as that launched by Sen. Cathy McMorris-Rogers, (R-Wa.), who said that the focus of cutting spending was off-base.
“We need to get serious about entitlement reform, in addition to just balancing the budget,” she said.
One item that has garnered bipartisan support was increased bank regulations that he said would end the “too big to fail” phenomenon, reign in profits from financial institutions that have accepted federal bail out money, and increase the amount of information that consumers get from financial institutions. These regulations have largely been viewed favorably by the right and left.
Obama also dealt – in veiled references – to the blow Democrats had suffered after the special Massachusetts Senate election. Unfortunately, words cannot fix the terminal blow Scott Brown’s win dealt to the Democrats’ 60-vote supermajority.
"We have finished a difficult year. We have finished a difficult decade. But it's a new year. Let's start anew," he said.
I Am Back
Sorry to everyone for being gone, but I have been, well, busy. Here is my life in a nut shell: I was down on major financial times, and only now could I afford to restore internet, and still feed and house my family. I switched jobs from, but remain in the same field. Instead of a Correctional Officer, I am now a Jailer. Same "customers", less job stress, and a little more money. It also feels better being a line officer, instead of a sergeant, but the old title follows me. Imagine my face walking into my pod for the first time, expecting the "new" officer test from the inmates when the first thing I hear is "What are you doing here Sarge?" Needless to say, the inmates did not test me.
Finances are so much better, I managed to get a new toy, a Glock 22 RTF2. SWEET!
Anyway, back to entertaining my friends, and annoying Libtards.
Finances are so much better, I managed to get a new toy, a Glock 22 RTF2. SWEET!
Anyway, back to entertaining my friends, and annoying Libtards.
02 December 2009
Update
Well boys and girls, sorry I have not been around. This will change in about a month. Things are improving since I left CCA, and started working for county. Real job, and real money.
Funny thing about CCA: They are sure taking their time with MY retirement account money. One phone call yesterday got me a song and dance, plus a promise to put the check in the mail this week. We will see.
That is it for now. God Bless!
Funny thing about CCA: They are sure taking their time with MY retirement account money. One phone call yesterday got me a song and dance, plus a promise to put the check in the mail this week. We will see.
That is it for now. God Bless!
26 September 2009
UP DATE
Sorry I have disappeared for awhile. I am in the process of a job change. Now the good news:
GOODBYE CCA!!!!
I start a real job with the county Monday.
That's all for now. God Bless!!
GOODBYE CCA!!!!
I start a real job with the county Monday.
That's all for now. God Bless!!
05 July 2009
Pastor Welcomes Gun Owners to Bring Their Handguns to Church
Fox News
LOUISVILLE, Ky. — A Louisville pastor is welcoming gun owners into his church's sanctuary Saturday for what he says is a show of support for the right to bear arms.
Ken Pagano is asking visitors to bring their unloaded handguns in a holster at a late afternoon event at New Bethel Church in southwest Louisville.
Pagano says he got the idea after some members at the Pentecostal church expressed concern over the Obama administration's views on gun control. He says the gathering is meant to promote safe gun ownership.
The "Open Carry Celebration" will include a handgun raffle.
It has prompted a coalition of peace and church groups to stage a peaceful, gun-free event across town at the same time on Saturday.
22 June 2009
We Were at War- The Legal Consequences of 9/11
by William J. Haynes II
In September 2005, I was sitting in a window seat on a commercial flight from Madrid to Philadelphia. It was mid-afternoon on a Tuesday. The plane was above the clouds in the sunshine, halfway across the Atlantic.
I was returning from a long trip in Europe. It was typically frenetic--six countries in five days, visit after visit with politicians and businessmen, diplomats and soldiers. I was tired, but marveling at what a great job I had. It's like being the chief legal officer of a medium size country. Any conceivable legal issue conjured up by the Department's more than ten thousand military and civilian lawyers could end up in my lap. I remember my head buzzing with those possibilities as I began to doze.
And then it hit me with
a jolt. I knew this flight. It was the same flight that we had tracked four years earlier on September 11, 2001.
You know the story: Nineteen hijackers on four planes murdered almost three thousand innocent people in an atrocity unlike any in American history. What you may not remember as well is that on that day the Department of Defense tracked two suspicious international flights--one over the Pacific, and this one over the Atlantic--suspecting they, too, were hijacked and heading towards an American skyline. And we steeled and readied ourselves to shoot them down.
All of us remember where we were that day. I was in my office on the phone with my wife, telling her to turn on the TV, when I saw the plane hit the second tower. I raced down to one of the Pentagon command centers with some others, to set up a crisis action cell. As the American Airlines plane hit the other side of our building, I felt only a shudder pulse the monstrous concrete structure. And then it was like I was in a movie playing fast forward. Smoke and confusion, multiple conversations between the President and the Secretary, sending my own deputy off with the Deputy Secretary to a survival site in the event that another plane came at our side of the Pentagon, hearing situation reports about dead and wounded being treated in the Pentagon courtyard.
I spent nineteen hours in the Pentagon that day, mostly at the elbow of then-Secretary of Defense Don Rumsfeld and then-Vice Chairman of the Joint Chiefs, General Dick Myers. Most of the time I was in two Pentagon command centers, reacting and contemplating possibilities I had never expected to face. These scenarios had nothing to do with corporate transactions, environmental cleanups, government contracts, class action litigation, or any of the other issues that had been on my mind when I first took the job, barely four months earlier.
That day, we considered whether to shoot civilian airliners from the sky, and we wondered what would come next. Were there more terrorists on the ground in America's cities? Did they have suitcase nukes? After New York and D.C., were Chicago, Atlanta, or Los Angeles next?
The legal questions were legion. What were the rules of engagement? How do the Fourth and Fifth Amendments apply to a decision to shoot down an American airliner en route to a U.S. city? Should any captured enemies be treated as criminal suspects or enemy combatants?
Smoke lingered in the Pentagon for days. We could not totally extinguish fires because the water itself threatened to shut down the electrical and information systems of the building. But as the smoke dissipated, some things soon became clearer. We were attacked by a non-state organization known as al Qaeda. The President decided that we would fight this enemy with all our national power, including the armed forces. We were at war.
At the time, this was widely accepted. In those weeks following 9/11, both the United Nations and NATO concluded we had suffered an "armed attack," thereby invoking the U.N. Charter and the NATO charter provisions for collective military action. The Congress on September 18, 2001, passed a breathtakingly broad Authorization for the Use of Military Force. The decision to go to war also followed recent precedent; President Clinton had ordered cruise missile strikes against al Qaeda in response to the 1998 bombings of the U.S. Embassies in Kenya and Tanzania.
Going to
war had many legal consequences.
It meant we could attack al Qaeda with deadly force. It meant we could detain captured fighters for the duration of hostilities. It meant we could ask questions without reading Miranda warnings. It meant we could seek to intercept their communications to learn their intentions and foil their future plots. It meant we could use military commissions to try them for war crimes.
I was tempted to give a detailed defense for these matters here today. Bob Fiske told me that you all have heard many speakers criticize the government's legal policies and that you'd give me a fair hearing for rebuttal.
But I decided against that. On Monday, I'm leaving this job, after almost seven years. Rather than justify the answers the President and Congress have come up with, I want to look to the future. As the national and global dialogue continues, as you all participate, and as our democracy considers new legal policies, I ask you to consider three questions important to all Americans and maybe particularly important to those of us in the legal profession.
First, how does the law affect the government's ability to fight and win wars?
The obvious approach to this question is to think about the rules we place on the government.
In the aftermath of 9/11, we've seen reforms in this mold. Removing the "wall" between law enforcement and intelligence. Creating the Department of Homeland Security. Creating the Office of the Director of National Intelligence. These legal reforms have been aimed at restructuring the government to be more effective.
I encourage you, however, to consider the law's impact on national security, from other perspectives, beyond just the rules we place on government.
Think about how the law sets incentives and disincentives for others besides the government.
What incentives does the law set for our enemies?
In a way, the threat of al Qaeda makes some applications of the law of war to this conflict unprecedented. On the other hand, the bedrock documents underlying the law of war had this conflict squarely in mind. The Geneva Conventions were consciously written with the purpose of encouraging combatants to follow certain basic rules, to place bounds on an inherently violent and barbaric enterprise--war.
The heart of this effort is to separate fighters from civilians. If the two are separated, civilian populations will be spared killing and destruction. So the law of war requires combatants to distinguish themselves from civilians--usually by wearing a uniform and carrying their weapons openly. In turn, fighters must also refrain from targeting civilians and may not use civilians as human shields.
The law of war attempts to encourage everyone to follow these rules through incentives. People who follow the rules receive a privileged status. Lawful fighters get combat immunity. Although they may kill and be killed on the battlefield, once removed from the fight, they may not be prosecuted for lawfully fighting. Lawful fighters, if captured, also get a special status called prisoner of war. This status comes with many privileges--access to athletic uniforms, musical instruments, access to a canteen where one can purchase tobacco and sundries, the right to whatever military justice system the enemy uses to try its own troops.
Al Qaeda's reason for being, its method of operation, strikes at the core of the law of war. Al Qaeda does not want to be distinguished from the civilians that surround them. The September 11 hijackers did not wear uniforms or carry weapons openly. They posed as businessmen and students. They did not distinguish between combatants and civilians. They attacked civilian aircraft and used those aircraft to attack civilian targets.
Should we afford prisoner of war status to al Qaeda fighters, notwithstanding their conduct? Amplifying that, should they get more than what POWs get? Here, you have to think about the incentives going forward. If you give more protections and privileges to al Qaeda fighters than to lawful fighters, then you will strip away any legal incentives for people to fight according to the rules. Countries and groups will have strategic incentives to enjoy the benefits for clandestine warfare without bearing any of the consequences of doing so. Ultimately, you increase the savagery of future conflicts.
This new series of rights affects the incentives of those on the front line combating terrorist organizations. In fighting, our military personnel may be buying a long series of civilian judicial proceedings, trials, accusations, and the prospect that our opponents will be released before the war is over. These were never prospects that military personnel faced in prior conflicts against conventional enemies. One must ask, what effect will this new web of legal requirements have on battlefield decisionmaking?
And consider this: We have hundreds of habeas cases from persons the United States holds at Guantánamo Bay, Cuba, and I'm concerned about the impact these cases might have on the incentives provided by the law of war.
During World War II, the United States detained more than 400,000 German and Italian prisoners of war in camps sprinkled around the United States, and had zero successful habeas petitions.
Today, we have less than 300 unlawful enemy combatants detained at Guantánamo Bay, Cuba, and 246 ongoing habeas cases in the federal courts to go with them. These cases are in addition to the administrative processes the Executive Branch has developed on its own to review the detention of enemy combatants. And those administrative processes have been endorsed by Congress.
The legal process afforded these detainees far exceeds anything that German or Italian soldiers enjoyed at any time during their captivity within our borders.
Think beyond our naval base in Cuba.
Coalition forces hold tens of thousands of detainees in Iraq and over a thousand Afghanistan. If the detainees in Cuba receive habeas, should those detainees in Iraq and Afghanistan receive it as well? Instead of hundreds, why not tens of thousands of military detainee habeas cases in federal courts?
This is an incentive to violate the law of war. As some have said, what's in it for any foe of the United States to abide by those rules if one gets better treatment upon capture by violating them?
Another example of an area where it's important to consider the incentives the law creates for national security is FISA, the Foreign Intelligence Surveillance Act.
The FISA statute, written in 1978, must be updated to account for remarkable advances in communications technology since then. That is one challenge before Congress now.
But another issue in FISA reform is whether private companies can be sued for cooperating with a Government request for information--for information on suspected al Qaeda operatives. When it comes to private corporations, even the prospect of liability--the very existence of litigation--is enough to cause them to turn the Government down. Allowing private lawsuits to go forward is a consequence of the political branches not making tough policy decisions. They deprive our political process of a real chance to consider what surveillance against our enemies should be permitted. Faced with the prospect of lawsuits, private entities will say "no" in the first instance, and there will be no decision for Congress and the President to make.
The prospect of litigation against individuals--our troops and government officials--also affects the decisions we make. When it comes to foreign lawsuits, the prospect of an adverse reaction--not by our Executive Branch, by our Congress, or by our courts, but by a foreign tribunal or prosecutor, is affecting the decisions military personnel and civilian leaders make.
We've had cases against individual servicemembers in foreign courts.
For example, in April 2003, in Baghdad, a U.S. tank under enemy fire returned fire and killed a Spanish cameraman. More than four years later thousands of miles away, a Spanish judge indicted three U.S. soldiers for violating a Spanish law.
Another case. In March 2005, soldiers at a U.S. checkpoint in Iraq killed an Italian intelligence agent after his speeding vehicle ignored multiple warnings and failed to stop. Almost two years later, an Italian judge indicted a U.S. soldier on homicide charges.
In Great Britain, U.S. Air Force pilots involved in tragic "friendly fire" incidents in Iraq--pilots whose conduct was investigated and cleared by U.S. and UK military investigators--are the subject of multiple county coroner inquests that have accused our pilots of negligent homicide.
Each of these cases proceeds notwithstanding that the U.S. government thoroughly investigated and determined that no administrative or judicial action was warranted.
But litigation isn't just a problem for troops at checkpoints, policy-makers have also been targets.
Lawsuits have been filed against senior military and civilian officials alleging human rights violations. One advocacy group has repeatedly filed complaints with German, Belgian, and French prosecutors requesting that senior civilian and military officials be prosecuted for conduct associated with the defense of our country.
The relationship between law and national security is complicated. It isn't just the rules we place on the government. It's the incentives we set for our enemies and for our own citizens. It's the rules others might try to place on us.
The second question, I'd pose is, 'Can we preserve the American legal system?'
We have a remarkable criminal justice system.
It's an adversarial system. It seeks to restrain government power and to preserve space for individual freedoms, and it's the most solicitous of individual rights of any in the world.
Our criminal law system is remarkable because of how much it is not focused on putting criminals behind bars.
It's a system where it's more important that innocents be found innocent than that the guilty be punished. Therefore, the standard of proof is very high--beyond a reasonable doubt. As Blackstone formulated--"Better that ten guilty persons escape than that one innocent suffer."
It's a system where it's more important to keep the government playing by the rules, than to punish the guilty. We have the exclusionary rule, where, as Judge Cardozo put it, "The criminal is to go free because the constable has blundered."
How would we adapt this gold standard of criminal law to deal with al Qaeda?
Is it better that ten al Qaeda operatives escape, than that one innocent be wrongly detained? Should al Qaeda members go free if the government blunders?
Many might answer, 'Yes!' But remember what only nineteen people were able to do nearly seven years ago. Some believe such doctrinaire logic applied without reflection is unwise. It could, as Justice Robert Jackson once warned, "convert the constitutional Bill of Rights into a suicide pact." Indeed, nearly all who seriously consider the question view criminal prosecution in the federal courts, under rules currently in place as a viable option for only a handful of al Qaeda members.
Adapting our domestic criminal justice system to 9/11-type terrorists could entail a compromise between our long tradition of individual rights and the new public need to thwart mass murder and destruction.
Academics and pundits have proposed such compromises--special terrorism courts. These courts might detain individuals for long periods of time, in spite of reasonable doubts. They might overlook blunders by constables, if those blunders found credible evidence. They might consider secret evidence, ex parte.
Do we want to inject those practices into our domestic legal system?
Consider Justice Jackson's dissent in the World War II case of Korematsu v. United States. There, he argued that the courts should abstain from judging the military's claim that it was necessary to exclude Fred Korematsu from the West Coast on the basis of his race. Justice Jackson thought that judges should not review claims of military necessity, because doing so would import unwanted doctrines into our jurisprudence. Once a practice like racial discrimination is imported and validated by a judge, then it:
lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of urgent need. Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes.
Justice Jackson went on to contrast the ephemeral nature of military orders with the enduring work of the court.
A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.
Adapting our civilian legal system to cover al Qaeda has its perils. If we choose this path, we must take care that we do not endanger our long-held principles and values.
Once we add special, relaxed procedures in the criminal justice system for al Qaeda, can we keep those procedures confined to the hardest cases? How will we prevent those who follow from using them as convenient ways to bypass the rigors of the criminal justice system?
We must be mindful of these matters as we begin to change the law.
My third question is, 'Can we preserve our adherence to the rule of law?'
Today, the threat of terrorism seems distant to many Americans. Polls show that people are more concerned with the economy and health care than terrorism. And, for many of the military and civilian personnel in government, this is our proudest achievement. By preventing attacks, the government has returned to the people a sense of safety.
But, as we continue to refine the laws, we should not just assume today's sense of security and safety. We should also ask ourselves how people will think, feel, and act when the next attack comes?
And it will come!
We can be sure that when the next attack comes, the American people will rally to the government and demand that it take action to protect the nation.
Writing the laws today, how do we write them so the government has enough flexibility to deal with tomorrow's crises? But what if we err? What if a future President is put in the position where he must choose between following the law and doing what he or she believes is necessary to protect the nation?
This is an awful choice.
The founding fathers recognized this when drafting our constitution. I quote from Madison in Federalist 41.
It is in vain to oppose Constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.
We must be careful that the country can act lawfully in self-defense.
I've shared with you some of my perspective on law and national security. In a word, my perspective is conservative. I mean that literally. There is so much in our country worth conserving, worth preserving, worth protecting. The lives of our citizens, the liberties we enjoy, our legal traditions, our belief in government under law.
As enemies threaten us, as the world changes, how do we best preserve all of that?
My first job out of law school was as a clerk to Judge James B. McMillan, in the Western District of North Carolina. I learned a lot from the judge, including: "never attribute to malice that which can be attributed to stupidity"; and "your job as my clerk is to keep me from making unintended errors"; and, "the government has no rights, only responsibilities." While I didn't always agree with the judge, I have always carried his lesson that the awesome powers of the government exist only to fulfill its responsibilities to the people.
Throughout my time as General Counsel of the Department, I've seen the Department's actions not so much as an exercise of lawful executive power or government rights, but as an appropriate discharge of a difficult executive responsibility. The Constitution confers upon the President the ultimate responsibility of ensuring that the American people are safe and secure, especially in wartime, and the Constitution gives the President the power to fulfill that responsibility. Exercising this power is discharging the most basic of all presidential duties.
Of course, the other branches have Constitutional duties as well. And we've seen the dialogue between the Congress, the Courts, and the President on these national security issues. This dialogue is how our constitution is supposed to work.
Without presuming to speak for anyone other than myself, allow me to speculate a bit in closing.
I think history will be kinder to the decisions this administration has made than current accounts might indicate. This country has not--and I knock on wood as I say this--suffered another devastating domestic attack from al Qaeda since 9/11. And most of the stories told thus far have been by outside critics, people who do not know the whole story.
I'm reminded of the late '40s and early '50s. It took those years and new leadership from another party before the country as a whole adopted the containment strategy that ultimately--40 years later--toppled the Soviet Union.
I believe our challenge as citizens now is to find ways to deal with this deadly and likely enduring threat that we can agree to sustain over time and across party lines. Ways that protect the ability of our country to win wars, to protect our systems, and to abide by the law.
How do we manage to live in a long period under threat, when we're fighting people somewhere in between criminals and combatants? When we're in a state somewhere in between war and peace, what will be the balance between security and liberty?
Justice Jackson, speaking in 1951 at the beginning of the Cold War, offered his thoughts on "wartime security and liberty under law." After discussing our Constitutional history, including the arguments between President Lincoln and Chief Justice Taney, Justice Jackson concluded with the following:
The problem of liberty and authority ahead are slight in comparison with those of the 1770s or 1860s. We shall blunder and dispute, and decide and overrule decisions. And the common sense of the American people will preserve us from all extremes which would destroy our heritage.
At first, this seems almost clichéd. "Common sense"? Surely the great expositor of the Steel Seizure case had something more satisfying? But I think what Justice Jackson meant was this. The logic of liberty and the logic of security, if blindly followed, each leads to impractical regimes. Carried to its extreme, the logic of liberty is a suicide pact. Patrick Henry's famous cry. Carried to its extreme, the logic of security is a government which can bend every law with a claim of urgent necessity. A government by fiat, not law.
Between these two extremes, we must chart a middle course. Since ideology and dogmatic logic lead us to crash at either end, then I suppose we must rely on common sense to point the way. As I leave government, as you all take up these challenges, may it guide you as well.
The Honorable William J. Haynes II served as General Counsel of the Department of Defense from May 2001 until February 2008. This speech was delivered as the Lewis Powell Lecture to the American College of Trial Lawyers in Tucson, Arizona, on March 8, 2008.
Editor's Note: Even as Uighur detainees, once trained in al Qaeda camps, frolic in the Bermuda surf, enjoying their release from the U.S. detention camp in Guantánamo Bay, newly captured detainees in Afghanistan are being read their Miranda rights, as if they were common criminals. The legal framework under which the U.S. government prosecutes the war on terror remains as unstable and controversial as ever. The speech below, delivered in March 2008 by William J. Haynes II, who was just then stepping down from his position as general counsel at the Pentagon, thus remains highly topical. Rare in this debate, it is also eloquent and highly accessible to the non-specialist. We thus reprint it in full and commend it to our readers' attention.
In September 2005, I was sitting in a window seat on a commercial flight from Madrid to Philadelphia. It was mid-afternoon on a Tuesday. The plane was above the clouds in the sunshine, halfway across the Atlantic.
I was returning from a long trip in Europe. It was typically frenetic--six countries in five days, visit after visit with politicians and businessmen, diplomats and soldiers. I was tired, but marveling at what a great job I had. It's like being the chief legal officer of a medium size country. Any conceivable legal issue conjured up by the Department's more than ten thousand military and civilian lawyers could end up in my lap. I remember my head buzzing with those possibilities as I began to doze.
And then it hit me with
a jolt. I knew this flight. It was the same flight that we had tracked four years earlier on September 11, 2001.
You know the story: Nineteen hijackers on four planes murdered almost three thousand innocent people in an atrocity unlike any in American history. What you may not remember as well is that on that day the Department of Defense tracked two suspicious international flights--one over the Pacific, and this one over the Atlantic--suspecting they, too, were hijacked and heading towards an American skyline. And we steeled and readied ourselves to shoot them down.
All of us remember where we were that day. I was in my office on the phone with my wife, telling her to turn on the TV, when I saw the plane hit the second tower. I raced down to one of the Pentagon command centers with some others, to set up a crisis action cell. As the American Airlines plane hit the other side of our building, I felt only a shudder pulse the monstrous concrete structure. And then it was like I was in a movie playing fast forward. Smoke and confusion, multiple conversations between the President and the Secretary, sending my own deputy off with the Deputy Secretary to a survival site in the event that another plane came at our side of the Pentagon, hearing situation reports about dead and wounded being treated in the Pentagon courtyard.
I spent nineteen hours in the Pentagon that day, mostly at the elbow of then-Secretary of Defense Don Rumsfeld and then-Vice Chairman of the Joint Chiefs, General Dick Myers. Most of the time I was in two Pentagon command centers, reacting and contemplating possibilities I had never expected to face. These scenarios had nothing to do with corporate transactions, environmental cleanups, government contracts, class action litigation, or any of the other issues that had been on my mind when I first took the job, barely four months earlier.
That day, we considered whether to shoot civilian airliners from the sky, and we wondered what would come next. Were there more terrorists on the ground in America's cities? Did they have suitcase nukes? After New York and D.C., were Chicago, Atlanta, or Los Angeles next?
The legal questions were legion. What were the rules of engagement? How do the Fourth and Fifth Amendments apply to a decision to shoot down an American airliner en route to a U.S. city? Should any captured enemies be treated as criminal suspects or enemy combatants?
Smoke lingered in the Pentagon for days. We could not totally extinguish fires because the water itself threatened to shut down the electrical and information systems of the building. But as the smoke dissipated, some things soon became clearer. We were attacked by a non-state organization known as al Qaeda. The President decided that we would fight this enemy with all our national power, including the armed forces. We were at war.
At the time, this was widely accepted. In those weeks following 9/11, both the United Nations and NATO concluded we had suffered an "armed attack," thereby invoking the U.N. Charter and the NATO charter provisions for collective military action. The Congress on September 18, 2001, passed a breathtakingly broad Authorization for the Use of Military Force. The decision to go to war also followed recent precedent; President Clinton had ordered cruise missile strikes against al Qaeda in response to the 1998 bombings of the U.S. Embassies in Kenya and Tanzania.
Going to
war had many legal consequences.
It meant we could attack al Qaeda with deadly force. It meant we could detain captured fighters for the duration of hostilities. It meant we could ask questions without reading Miranda warnings. It meant we could seek to intercept their communications to learn their intentions and foil their future plots. It meant we could use military commissions to try them for war crimes.
I was tempted to give a detailed defense for these matters here today. Bob Fiske told me that you all have heard many speakers criticize the government's legal policies and that you'd give me a fair hearing for rebuttal.
But I decided against that. On Monday, I'm leaving this job, after almost seven years. Rather than justify the answers the President and Congress have come up with, I want to look to the future. As the national and global dialogue continues, as you all participate, and as our democracy considers new legal policies, I ask you to consider three questions important to all Americans and maybe particularly important to those of us in the legal profession.
First, how does the law affect the government's ability to fight and win wars?
The obvious approach to this question is to think about the rules we place on the government.
In the aftermath of 9/11, we've seen reforms in this mold. Removing the "wall" between law enforcement and intelligence. Creating the Department of Homeland Security. Creating the Office of the Director of National Intelligence. These legal reforms have been aimed at restructuring the government to be more effective.
I encourage you, however, to consider the law's impact on national security, from other perspectives, beyond just the rules we place on government.
Think about how the law sets incentives and disincentives for others besides the government.
What incentives does the law set for our enemies?
In a way, the threat of al Qaeda makes some applications of the law of war to this conflict unprecedented. On the other hand, the bedrock documents underlying the law of war had this conflict squarely in mind. The Geneva Conventions were consciously written with the purpose of encouraging combatants to follow certain basic rules, to place bounds on an inherently violent and barbaric enterprise--war.
The heart of this effort is to separate fighters from civilians. If the two are separated, civilian populations will be spared killing and destruction. So the law of war requires combatants to distinguish themselves from civilians--usually by wearing a uniform and carrying their weapons openly. In turn, fighters must also refrain from targeting civilians and may not use civilians as human shields.
The law of war attempts to encourage everyone to follow these rules through incentives. People who follow the rules receive a privileged status. Lawful fighters get combat immunity. Although they may kill and be killed on the battlefield, once removed from the fight, they may not be prosecuted for lawfully fighting. Lawful fighters, if captured, also get a special status called prisoner of war. This status comes with many privileges--access to athletic uniforms, musical instruments, access to a canteen where one can purchase tobacco and sundries, the right to whatever military justice system the enemy uses to try its own troops.
Al Qaeda's reason for being, its method of operation, strikes at the core of the law of war. Al Qaeda does not want to be distinguished from the civilians that surround them. The September 11 hijackers did not wear uniforms or carry weapons openly. They posed as businessmen and students. They did not distinguish between combatants and civilians. They attacked civilian aircraft and used those aircraft to attack civilian targets.
Should we afford prisoner of war status to al Qaeda fighters, notwithstanding their conduct? Amplifying that, should they get more than what POWs get? Here, you have to think about the incentives going forward. If you give more protections and privileges to al Qaeda fighters than to lawful fighters, then you will strip away any legal incentives for people to fight according to the rules. Countries and groups will have strategic incentives to enjoy the benefits for clandestine warfare without bearing any of the consequences of doing so. Ultimately, you increase the savagery of future conflicts.
This new series of rights affects the incentives of those on the front line combating terrorist organizations. In fighting, our military personnel may be buying a long series of civilian judicial proceedings, trials, accusations, and the prospect that our opponents will be released before the war is over. These were never prospects that military personnel faced in prior conflicts against conventional enemies. One must ask, what effect will this new web of legal requirements have on battlefield decisionmaking?
And consider this: We have hundreds of habeas cases from persons the United States holds at Guantánamo Bay, Cuba, and I'm concerned about the impact these cases might have on the incentives provided by the law of war.
During World War II, the United States detained more than 400,000 German and Italian prisoners of war in camps sprinkled around the United States, and had zero successful habeas petitions.
Today, we have less than 300 unlawful enemy combatants detained at Guantánamo Bay, Cuba, and 246 ongoing habeas cases in the federal courts to go with them. These cases are in addition to the administrative processes the Executive Branch has developed on its own to review the detention of enemy combatants. And those administrative processes have been endorsed by Congress.
The legal process afforded these detainees far exceeds anything that German or Italian soldiers enjoyed at any time during their captivity within our borders.
Think beyond our naval base in Cuba.
Coalition forces hold tens of thousands of detainees in Iraq and over a thousand Afghanistan. If the detainees in Cuba receive habeas, should those detainees in Iraq and Afghanistan receive it as well? Instead of hundreds, why not tens of thousands of military detainee habeas cases in federal courts?
This is an incentive to violate the law of war. As some have said, what's in it for any foe of the United States to abide by those rules if one gets better treatment upon capture by violating them?
Another example of an area where it's important to consider the incentives the law creates for national security is FISA, the Foreign Intelligence Surveillance Act.
The FISA statute, written in 1978, must be updated to account for remarkable advances in communications technology since then. That is one challenge before Congress now.
But another issue in FISA reform is whether private companies can be sued for cooperating with a Government request for information--for information on suspected al Qaeda operatives. When it comes to private corporations, even the prospect of liability--the very existence of litigation--is enough to cause them to turn the Government down. Allowing private lawsuits to go forward is a consequence of the political branches not making tough policy decisions. They deprive our political process of a real chance to consider what surveillance against our enemies should be permitted. Faced with the prospect of lawsuits, private entities will say "no" in the first instance, and there will be no decision for Congress and the President to make.
The prospect of litigation against individuals--our troops and government officials--also affects the decisions we make. When it comes to foreign lawsuits, the prospect of an adverse reaction--not by our Executive Branch, by our Congress, or by our courts, but by a foreign tribunal or prosecutor, is affecting the decisions military personnel and civilian leaders make.
We've had cases against individual servicemembers in foreign courts.
For example, in April 2003, in Baghdad, a U.S. tank under enemy fire returned fire and killed a Spanish cameraman. More than four years later thousands of miles away, a Spanish judge indicted three U.S. soldiers for violating a Spanish law.
Another case. In March 2005, soldiers at a U.S. checkpoint in Iraq killed an Italian intelligence agent after his speeding vehicle ignored multiple warnings and failed to stop. Almost two years later, an Italian judge indicted a U.S. soldier on homicide charges.
In Great Britain, U.S. Air Force pilots involved in tragic "friendly fire" incidents in Iraq--pilots whose conduct was investigated and cleared by U.S. and UK military investigators--are the subject of multiple county coroner inquests that have accused our pilots of negligent homicide.
Each of these cases proceeds notwithstanding that the U.S. government thoroughly investigated and determined that no administrative or judicial action was warranted.
But litigation isn't just a problem for troops at checkpoints, policy-makers have also been targets.
Lawsuits have been filed against senior military and civilian officials alleging human rights violations. One advocacy group has repeatedly filed complaints with German, Belgian, and French prosecutors requesting that senior civilian and military officials be prosecuted for conduct associated with the defense of our country.
The relationship between law and national security is complicated. It isn't just the rules we place on the government. It's the incentives we set for our enemies and for our own citizens. It's the rules others might try to place on us.
The second question, I'd pose is, 'Can we preserve the American legal system?'
We have a remarkable criminal justice system.
It's an adversarial system. It seeks to restrain government power and to preserve space for individual freedoms, and it's the most solicitous of individual rights of any in the world.
Our criminal law system is remarkable because of how much it is not focused on putting criminals behind bars.
It's a system where it's more important that innocents be found innocent than that the guilty be punished. Therefore, the standard of proof is very high--beyond a reasonable doubt. As Blackstone formulated--"Better that ten guilty persons escape than that one innocent suffer."
It's a system where it's more important to keep the government playing by the rules, than to punish the guilty. We have the exclusionary rule, where, as Judge Cardozo put it, "The criminal is to go free because the constable has blundered."
How would we adapt this gold standard of criminal law to deal with al Qaeda?
Is it better that ten al Qaeda operatives escape, than that one innocent be wrongly detained? Should al Qaeda members go free if the government blunders?
Many might answer, 'Yes!' But remember what only nineteen people were able to do nearly seven years ago. Some believe such doctrinaire logic applied without reflection is unwise. It could, as Justice Robert Jackson once warned, "convert the constitutional Bill of Rights into a suicide pact." Indeed, nearly all who seriously consider the question view criminal prosecution in the federal courts, under rules currently in place as a viable option for only a handful of al Qaeda members.
Adapting our domestic criminal justice system to 9/11-type terrorists could entail a compromise between our long tradition of individual rights and the new public need to thwart mass murder and destruction.
Academics and pundits have proposed such compromises--special terrorism courts. These courts might detain individuals for long periods of time, in spite of reasonable doubts. They might overlook blunders by constables, if those blunders found credible evidence. They might consider secret evidence, ex parte.
Do we want to inject those practices into our domestic legal system?
Consider Justice Jackson's dissent in the World War II case of Korematsu v. United States. There, he argued that the courts should abstain from judging the military's claim that it was necessary to exclude Fred Korematsu from the West Coast on the basis of his race. Justice Jackson thought that judges should not review claims of military necessity, because doing so would import unwanted doctrines into our jurisprudence. Once a practice like racial discrimination is imported and validated by a judge, then it:
lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of urgent need. Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes.
Justice Jackson went on to contrast the ephemeral nature of military orders with the enduring work of the court.
A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.
Adapting our civilian legal system to cover al Qaeda has its perils. If we choose this path, we must take care that we do not endanger our long-held principles and values.
Once we add special, relaxed procedures in the criminal justice system for al Qaeda, can we keep those procedures confined to the hardest cases? How will we prevent those who follow from using them as convenient ways to bypass the rigors of the criminal justice system?
We must be mindful of these matters as we begin to change the law.
My third question is, 'Can we preserve our adherence to the rule of law?'
Today, the threat of terrorism seems distant to many Americans. Polls show that people are more concerned with the economy and health care than terrorism. And, for many of the military and civilian personnel in government, this is our proudest achievement. By preventing attacks, the government has returned to the people a sense of safety.
But, as we continue to refine the laws, we should not just assume today's sense of security and safety. We should also ask ourselves how people will think, feel, and act when the next attack comes?
And it will come!
We can be sure that when the next attack comes, the American people will rally to the government and demand that it take action to protect the nation.
Writing the laws today, how do we write them so the government has enough flexibility to deal with tomorrow's crises? But what if we err? What if a future President is put in the position where he must choose between following the law and doing what he or she believes is necessary to protect the nation?
This is an awful choice.
The founding fathers recognized this when drafting our constitution. I quote from Madison in Federalist 41.
It is in vain to oppose Constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.
We must be careful that the country can act lawfully in self-defense.
I've shared with you some of my perspective on law and national security. In a word, my perspective is conservative. I mean that literally. There is so much in our country worth conserving, worth preserving, worth protecting. The lives of our citizens, the liberties we enjoy, our legal traditions, our belief in government under law.
As enemies threaten us, as the world changes, how do we best preserve all of that?
My first job out of law school was as a clerk to Judge James B. McMillan, in the Western District of North Carolina. I learned a lot from the judge, including: "never attribute to malice that which can be attributed to stupidity"; and "your job as my clerk is to keep me from making unintended errors"; and, "the government has no rights, only responsibilities." While I didn't always agree with the judge, I have always carried his lesson that the awesome powers of the government exist only to fulfill its responsibilities to the people.
Throughout my time as General Counsel of the Department, I've seen the Department's actions not so much as an exercise of lawful executive power or government rights, but as an appropriate discharge of a difficult executive responsibility. The Constitution confers upon the President the ultimate responsibility of ensuring that the American people are safe and secure, especially in wartime, and the Constitution gives the President the power to fulfill that responsibility. Exercising this power is discharging the most basic of all presidential duties.
Of course, the other branches have Constitutional duties as well. And we've seen the dialogue between the Congress, the Courts, and the President on these national security issues. This dialogue is how our constitution is supposed to work.
Without presuming to speak for anyone other than myself, allow me to speculate a bit in closing.
I think history will be kinder to the decisions this administration has made than current accounts might indicate. This country has not--and I knock on wood as I say this--suffered another devastating domestic attack from al Qaeda since 9/11. And most of the stories told thus far have been by outside critics, people who do not know the whole story.
I'm reminded of the late '40s and early '50s. It took those years and new leadership from another party before the country as a whole adopted the containment strategy that ultimately--40 years later--toppled the Soviet Union.
I believe our challenge as citizens now is to find ways to deal with this deadly and likely enduring threat that we can agree to sustain over time and across party lines. Ways that protect the ability of our country to win wars, to protect our systems, and to abide by the law.
How do we manage to live in a long period under threat, when we're fighting people somewhere in between criminals and combatants? When we're in a state somewhere in between war and peace, what will be the balance between security and liberty?
Justice Jackson, speaking in 1951 at the beginning of the Cold War, offered his thoughts on "wartime security and liberty under law." After discussing our Constitutional history, including the arguments between President Lincoln and Chief Justice Taney, Justice Jackson concluded with the following:
The problem of liberty and authority ahead are slight in comparison with those of the 1770s or 1860s. We shall blunder and dispute, and decide and overrule decisions. And the common sense of the American people will preserve us from all extremes which would destroy our heritage.
At first, this seems almost clichéd. "Common sense"? Surely the great expositor of the Steel Seizure case had something more satisfying? But I think what Justice Jackson meant was this. The logic of liberty and the logic of security, if blindly followed, each leads to impractical regimes. Carried to its extreme, the logic of liberty is a suicide pact. Patrick Henry's famous cry. Carried to its extreme, the logic of security is a government which can bend every law with a claim of urgent necessity. A government by fiat, not law.
Between these two extremes, we must chart a middle course. Since ideology and dogmatic logic lead us to crash at either end, then I suppose we must rely on common sense to point the way. As I leave government, as you all take up these challenges, may it guide you as well.
The Honorable William J. Haynes II served as General Counsel of the Department of Defense from May 2001 until February 2008. This speech was delivered as the Lewis Powell Lecture to the American College of Trial Lawyers in Tucson, Arizona, on March 8, 2008.
18 June 2009
Boxer, the U.S. Senator, Chides Brigadier General for Calling Her 'Ma'am'
Fox News
Robocop's Comment:
This is why I am not a General:
"You know, do me a favor," an irritated Boxer said. "Could say 'senator' instead of 'ma'am?'"
"Ok BITCH, and you can call me "Daddy" Robocop interjected.
In case you forgot, Barbara Boxer is a senator.
The feisty California lawmaker felt the need to remind an Army brigadier general of that fact Tuesday during a hearing before her Senate Committee on Environment and Public Works, where the military officer testifying had the apparent gall to call Boxer "ma'am."
Brig. Gen. Michael Walsh, with the U.S. Army Corps of Engineers, was testifying on the Louisiana coastal restoration process in the wake of Hurricane Katrina. He began to answer one of Boxer's questions with "ma'am" when Boxer immediately cut him off.
"You know, do me a favor," an irritated Boxer said. "Could say 'senator' instead of 'ma'am?'"
"Yes, ma'am," Walsh interjected.
"It's just a thing, I worked so hard to get that title, so I'd appreciate it, yes, thank you," she said.
"Yes, senator," he responded.
However, Walsh surely meant no disrespect, as military protocol advises that officers may use "sir" or "ma'am" when addressing anybody higher than them on the chain of command.
"We would call them 'sir' or 'ma'am' or 'senator such-and-such'," Army spokesman Lt. Col. Nathan Banks said. Banks said any of those terms would be "appropriate" when addressing a senator.
According to one guide, the Navy and Coast Guard typically use "mister" or "miss" to address officers below the rank of commander, and "sir" or "ma'am," or a specific title, to address anyone at that rank or higher.
"You can never go wrong by using 'Sir' or 'Ma'am,' but it is a nice touch if you can properly address a senior officer," says the guide, Military Protocol: Uniformed Services.
Tuesday's hearing was hardly the first time a military officer used those terms during sworn testimony.
The same day at a Senate Armed Services subcommittee hearing, two Navy officials repeatedly referred to Sen. Roger Wicker, R-Miss., with the title, "sir."
"Yes, sir," Navy Vice Adm. Bernard McCullough said when answering questions.
Wicker raised no objections.
Robocop's Comment:
This is why I am not a General:
"You know, do me a favor," an irritated Boxer said. "Could say 'senator' instead of 'ma'am?'"
"Ok BITCH, and you can call me "Daddy" Robocop interjected.
Safeguarding the military vote
CORNYN & BEGICH
In recent elections, American soldiers, sailors, airmen and Marines have encountered substantial roadblocks in the voting process. This has been especially true of those deployed to Iraq and Afghanistan. To address this national embarrassment, we have introduced a bipartisan bill, the Military Voting Protection Act.
Our military service members put their lives on the line to protect the rights and freedoms of all Americans. In return, it is our responsibility to support them in every way we can. The nature of the global war on terror and the high tempo of U.S. military operations - including our surge in Afghanistan - will require overseas service by our troops for the foreseeable future. It is imperative that American service members abroad be able to participate in our democratic process even as they fight to defend our democracy.
Yet the country they defend has repeatedly denied our troops one of our most sacred rights - the right to vote. During the 2006 election cycle, according to the U.S. Election Assistance Commission, less than half of the military voters who requested absentee ballots successfully cast them. According to a 2006 report, just 59 percent of surveyed service members even knew where to obtain voting information on their installations, and just 40 percent had received assistance from their designated voting assistance officer. A recent survey of seven states with high military populations shows that the problems continued in 2008, as more than a quarter of the ballots requested by uniformed and overseas voters went uncollected or uncounted.
Our troops report many procedural hurdles when trying to participate in federal, state and local elections. Most states have inadequate processes and unreasonable timelines for transmitting blank absentee ballots to our troops, and the methods available to these service members for returning completed ballots to local election officials are slow and antiquated. Moreover, there are myriad absentee voting rules and regulations that are extremely confusing and vary widely with each state.
The process clearly is broken, and there is no excuse for not stepping up to challenge the status quo and streamline the process. We ask so much of our troops, and in return, we have given them a voting system that is perplexing, frustrating, slow and often dysfunctional. They deserve better.
The bill we introduced can help address one of largest of these procedural hurdles. The Military Voting Protection Act would give our troops a louder and clearer voice at the polls by ensuring that their completed absentee ballots are delivered back home in time to be counted and do not get lost on the way. Our bill would reduce delays in the absentee voting process by requiring the Defense Department to take a more active role in the process. The bill would require the department to be responsible for collecting completed ballots from overseas troops and then express-shipping them back to the United States in time to be counted, enabling troops to track their ballots while the ballots are in transit and confirm their delivery at local election offices.
We should pass this bipartisan bill quickly so elections officials have time to prepare for the 2010 election cycle. Meaningful reform will not come overnight, but now is the time to take up the cause of military voters. There are 18 months until the next election, which is enough time to implement significant improvements. If we fail, disenfranchisement of many more military voters could result next year.
This bill can be an important step toward solving the numerous and complex problems with our current military voting system. The Americans who answer the call to serve are national treasures, and we honor their selfless sacrifice and commitment to the defense of freedom. In the eighth year of the global war on terror, they continue to voluntarily raise their right hands to defend our nation and our freedom - which often requires immeasurable personal sacrifice by them and their loved ones.
Members of our newest "greatest generation" deserve nothing less than the same constitutional rights and individual liberties that they safeguard for their fellow citizens back home.
Sen. John Cornyn, Texas Republican, is a member of the Senate Judiciary subcommittee on the constitution. Sen. Mark Begich, Alaska Democrat, is a member of the Senate Armed Services Committee.
15 June 2009
Tennessee Legislature Overrides Governor's Veto of HB 962
NRAILA
Fairfax, Va. – In a strong reaffirmation of the self-defense rights of Tennesseans, the Tennessee House and Senate have successfully overridden Governor Phil Bredesen’s veto of House Bill 962. This NRA-supported bill will enable law-abiding right-to-carry permit holders to carry firearms for self-defense in restaurants. HB 962 passed both the House and Senate with broad bipartisan support, but Gov. Bredesen vetoed the bill on May 28, disappointing more than 200,000 right-to-carry permit holders in his state. While an override of the veto only needed a simple majority vote to pass, it cleared both chambers with overwhelming, bi-partisan support. Passage of the measure will allow law-abiding Tennesseans to protect themselves and their families. This measure was overridden today in the Senate by a margin of 21-9.
“Until today, Tennessee law has prevented right-to-carry permit holders from having the chance to defend themselves from criminal attack while in a restaurant,” said Chris W. Cox, NRA chief lobbyist. "This veto override proves Tennessee legislators trust permit holders and understand this is a common sense measure that must become law in their state, just as it is already law in 35 other states. HB 962 will allow permit holders the opportunity to protect their own lives and the lives of those they love.”
HB 962 is crucial because crime does happen in restaurants. On April 2, 2009, Benjamin Felix Goeser was gunned down at Jonny's Sports Bar on Nolensville Road in Nashville. His wife, Nicole Goeser, has a right-to-carry permit, but she had to keep her gun locked in the car because of Tennessee law. Mrs. Goeser actively lobbied for the passage of this measure.
According to the Tennessee Legislature’s legal staff, this common sense law will go into effect July 14, per Tennessee state law.
“Bill sponsors State Senator Doug Jackson (D-25) and State Representative Curry Todd (R-95), Tennessee leaders Lt. Governor Ron Ramsey (R-02) and Speaker Kent Williams (R-04), as well as many other members of the Tennessee Legislature, should be applauded for their steadfast efforts to pass this important bill that will give good, law-abiding Tennesseans the chance to defend themselves and their loved ones while dining out,” concluded Cox. “A special thank you to Nikki Goeser who actively worked on the passage of this legislation in memory of her late husband.”
13 June 2009
Featured Douche 06.13.09
The Winner: The Homeowners Association (HOA) for The Woodlands II on The Creek
The Story:
DALLAS - Frank Larison is a disabled veteran with more than 14 years of service, including more than a year of combat duty in Vietnam.
The 58-year-old former Marine now finds himself under attack by his Dallas homeowners association for displaying seven decals on his vehicle supporting the Marine Corps.
"To me, it's being patriotic, and it shows that I served," the veteran told FOX 4.
The board says the decals are advertisements that violate HOA rules, and must be covered or removed.
Otherwise, the homeowners association for The Woodlands II on The Creek --- where Larimore has lived for eight years --- says in a letter it will tow the car at Larimore's expense. The board also threatens to fine him $50 for any future incident.
Larimore says the decals, ranging from the Marine emblem to Semper Fi slogans, aren't advertisements for anything. "You can't buy freedom," he reasoned.
Some neighbors are outraged.
"That is his identity," said neighbor Mary Castagna. "He goes to a lot of the veteran meetings, and it means a lot to him. Everyone else agrees with it; it doesn't bother anybody."
"He's in the Marines, and he's proud of it, and I don't blame him," said neighbor Paul Hardy. "If I'd gone through what he's gone through, I'd be kind of proud of it myself."
The letter from the board states you can't have any form of advertisement anywhere on your car on your property. FOX 4 cameras spotted bumper stickers for political parties, health causes, and other non-commercial interests on the property as well.
One board member said he was unaware the HOA presidents sent the letter and did not know of any issue with Larimore's vehicle.
"I will be looking into it," said board member Art Bradford. "I didn't know anything about this. I haven't seen this."
The board president was out of town and unavailable. The condo management company did not want to comment.
Robocop's Comment:
More proof that HOA's are out of control and un-American.
11 June 2009
NRA Appeals Seventh Circuit Ruling to the U.S. Supreme Court
NRAILA
Robocop's Comment:
Can those judicial activists say Heller vs. District Of Columbia? What a bunch of dumbasses.
Fairfax, Va. – Today, the National Rifle Association filed a petition for certiorari to the U.S. Supreme Court in the case of NRA v. Chicago. The NRA strongly disagrees with yesterday's decision issued by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, holding that the Second Amendment does not apply to state and local governments.
“The Seventh Circuit got it wrong. As the Supreme Court said in last year's landmark Heller decision, the Second Amendment is an individual right that ‘belongs to all Americans'. Therefore, we are taking our case to the highest court in the land,” said Chris W. Cox, NRA chief lobbyist. “The Seventh Circuit claimed it was bound by precedent from previous decisions. However, it should have followed the lead of the recent Ninth Circuit Court of Appeals decision in Nordyke v. Alameda County, which found that those cases don't prevent the Second Amendment from applying to the states through the due process clause of the Fourteenth Amendment.”
This Seventh Circuit opinion upholds current bans on the possession of handguns in Chicago and Oak Park, Illinois.
“It is wrong that the residents of Chicago and Oak Park continue to have their Second Amendment rights denied,” Cox concluded. “It’s time for the fundamental right of self-defense to be respected by every jurisdiction throughout our country.”
Robocop's Comment:
Can those judicial activists say Heller vs. District Of Columbia? What a bunch of dumbasses.
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