A Different Perspective

The HHS Contraception Mandate and the First Amendment

2012-01-26T03:10:00.000-05:00

The Department of Health and Human Services (HHS) has issued a rule requiring most health insurance plans to cover contraceptives for women free of charge. Even though the use of artificial birth control violates one of the tenets of the Catholic religion, there is no exemption for insurance provided to employees of Catholic hospitals, colleges, and charities. [1] Is this constitutional? The First Amendment of the Constitution says this:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [2]

That should be clear enough. The plain language of the Amendment tells us that Congress can’t prohibit the free exercise of religion. HHS gets its rule-making power from Congress, and can’t have more authority than Congress has. To fully practice the Catholic religion one must abstain from participating in artificial birth control. But the HHS rule requires Catholic hospitals, colleges, and charities to participate in artificial birth control by funding it through their employee insurance plans. So the HHS rule must violate the First Amendment. Right?

Unfortunately, it’s not that simple. The U.S. Supreme Court is hard to follow on this issue because it can’t make up its mind. For awhile it was applying what is called the Sherbert test, not for any dessert-like qualities, but after a Supreme Court case captioned Sherbert v. Verner. [3] Under the Sherbert test, a government could substantially infringe on a person’s free exercise of his religion if it had a really, really good reason, in legal parlance referred to as a “compelling state interest,” and it couldn’t do what it wanted to do any other way. Of course, the First Amendment doesn’t say that the free exercise of religion can be prohibited if the government has a real good reason for it, but we can’t let all these rights inconvenience the government too much.

That was the test for awhile. Then, in 1990, came Employment Division, Department of Human Resources of Oregon v. Smith. [4] This was a case where two adherents of the Native American Church were fired by a private drug rehabilitation organization because they took peyote as part of their religious practice. When they tried to collect unemployment benefits they were turned down because they had been terminated for work-related misconduct.

Looking at this case, the Supreme Court decided to apply a new standard. Basically, the Court said that the law against taking peyote was a law that applied to everybody, and wasn’t enacted for the purpose of restricting the practices of the Native American Church, so someone can’t just take peyote as part of his religion and get away with it. The new rule, then, was this: one may freely practice his religion unless it’s against the law.

Well, this just stunk to high hell, to the point that even the non-peyote-taking members of Congress decided to pass the Religious Freedom Restoration Act of 1993 (RFRA). [5] What the Act restored was not complete religious freedom, but the Sherbert test. So, for purposes of federal law, the government may only restrict religious freedom if it has a good reason and can’t do what it wants to do any other way. The RFRA doesn’t apply to state laws, however [6], and state laws only have to meet the standard of the Smith case.

So, where does that leave us? The HHS contraception mandate is federal law, so a compelling governmental interest will have to be shown in order to uphold it. To that end, the Obama Administration will argue from the hedonistic Malthusianism that has permeated the dominant paradigm of Western culture. That the Court would rule, once and for all, that our governments don’t get to infringe on religious practices and beliefs just because they think they have a good idea is probably too much to hope for.

Should the Court uphold the mandate we might well receive the curse of living in interesting times. Sometimes civilizations collide, and we might see the irresistible force of the American government encounter the immovable object of the Catholic Church.

Stay tuned.

Why I Won't Be Voting for Barack Obama in 2012

2012-01-23T23:13:00.003-05:00

He has violated the War Powers Act. [1] He has done nothing to reduce the influence of money on politics. [2] He has authorized the indefinite detention, without trial, of American citizens [3], believing that he already had that authority before it was enacted into legislation. [4] Now President Obama has demonstrated that he has no respect for religious freedom, thus living up to the caricature of him painted by his opponents.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Obama administration adopted the extraordinary position that churches do not have the unlimited and unfettered right to decide who their ministers will be under the First Amendment to the Constitution, and should, therefore, be subject to employment discrimination actions when ministers are dismissed. [5] The U.S. Supreme Court ruled against the Obama Administration unanimously.

Now Mr. Obama has decided that Catholic and other religiously affiliated entities will have to cover their employees with health coverage that includes payment for artificial birth control, even if doing so is against the tenets of their respective religions. [6] There is an exemption for religious employers, which appears to cover not much more than churches themselves. A religious employer doesn’t qualify for the exemption if it employs or serves large numbers of people of a different religion, as do many Catholic hospitals, universities, and social service agencies.

In a palpable effort to get this issue past the 2012 election, the Administration has given church-affiliated organizations an additional year, to August 1, 2013, to comply with the new requirement. Other employers will have to comply by August 1^st of this year. The sardonic nature of this response has not gone unnoticed. As Archbishop Timothy M. Dolan of New York, the president of the United States Conference of Catholic Bishops has remarked, “In effect, the President is saying we have a year to figure out how to violate our consciences.”

Congress may overrule the new regulation, or the courts may strike it down. If neither of those things happen, Catholic employers will have no alternative but to engage in civil disobedience. With that spectacular prospect in view, it is easy to see why the Obama Administration is willing to delay the new rule’s implementation until after the election.

Mr. Obama received 54% of the Catholic vote in 2008. [7] Your humble servant was of that number. This President has rewarded us with unjust war, by threatening the citizenry with gross injustice, by letting it be known that he stands squarely on the side of political corruption, and now this shot across the bow of our deeply held religious beliefs. This Catholic will not be voting for Barack Obama in 2012.

Afghan Soldiers Killing Allied Forces

2012-01-20T04:43:00.000-05:00

The New York Times is reporting that American and other coalition forces in Afghanistan are being killed in increasing numbers by the very Afghan soldiers they fight alongside and train. [1] It appears that the American and Afghan soldiers don’t like each other very much, and the mutual contempt has erupted in lethal attacks.

American soldiers complain that their Afghan counterparts are untrustworthy on patrol, are dishonest, abuse drugs, and are cowardly during combat. The Afghan soldiers, for their part, find the Americans arrogant, and charge that they take out their frustrations at American casualties on Afghan civilians.

While the contempt is mutual, the killing has been one-sided. There are no reported cases of Americans killing Afghan soldiers. But between May 2007 and May 2011 at least 58 Western service members were killed in 26 separate attacks by Afghan soldiers and police nationwide. That was 6 percent of all hostile coalition deaths during that time frame.

Prospects of getting a handle on this problem appear to be bleak. One Afghan colonel says that the reciprocal hostility is growing, and promises to become a major problem among the lower ranks of the respective forces in the near future.

What to do? The Taliban appears ready for peace talks, and the video of U.S. Marines urinating on dead Taliban fighters has not changed that posture. [2] But it is apparently the position of the United States that any talks between the United States and the Taliban must receive the blessing of Afghan President Hamid Karzai before going forward. [3] Interestingly, a tentative agreement between the U.S. and the Taliban, which included the transfer of five Afghan detainees from the Guantanamo Bay prison to Qatar and the Taliban’s renunciation of international terrorism, fell apart in December when Mr. Karzai refused to go along with it. [4]

Mr. Karzai, of course, has every right to decide what terms of settlement he will accept. In fact, he has the right to order American and NATO troops out of his country. But he does not have the right to order allied troops to remain in Afghanistan. It’s time to let Mr. Karzai know just how anxious we are to leave. He can let us begin talks with the Taliban, and he can agree to a reasonable settlement, or we can pack our bags.

Hopefully, this latest lesson that nation-building is a stupid idea will stay with us for a few generations.

The Debate over the Stop Online Piracy Act Should Direct Some Attention to the Duration of Copyright Protection in the U.S.

2012-01-18T02:42:00.000-05:00

The English language Wikipedia is shut down as of this writing to demonstrate its opposition to the Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA) being debated by Congress. [1] Wikipedia’s concern is that the proposed legislation “could fatally damage the free and open Internet.” [2]

The substance of the debate is being covered by a variety of sources, and your humble servant will simply observe that intellectual property deserves protection and the First Amendment must be protected. But true to the name of this blog, it seems fitting to look at the issue of copyright protection from a different perspective, and examine an aspect of copyright law that deserves your attention.

Article I, Section 8 of the U.S. Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries….” [3] The words “limited Times” are key here.

The very first Copyright Act enacted pursuant to that constitutional authorization was signed into law by President George Washington in 1790. [4] The Act provided copyright protection for a period of 14 years, with the right of renewal for another 14 years.

Today, a longer duration of copyright protection is provided by the Sonny Bono Copyright Term Extension Act of 1998. [5] The Act was named for the Sonny Bono of Sonny and Cher fame, who found a second career in Congress.

Under this Act, for works created after January 1, 1978, copyright protection is given ordinarily for the lifetime of the author, plus 70 years after the author’s death. Works made for hire, i.e., for the company the author or authors work for, are protected for 95 years from publication, or 120 years from creation, whichever is shorter. Many works created before 1978 are also protected for 95 years.

This modern duration of copyright protection is beyond the scope of any possible social utility. “Ridiculous” is the word that comes immediately to mind. It is to be hoped that the current debate over SOPA and PIPA will direct some attention to this absurdity in U.S. copyright law.

A Reading for Martin Luther King Day

2012-01-15T23:33:00.000-05:00

Woe to you scribes and Pharisees, hypocrites; that build the sepulchres of the prophets, and adorn the monuments of the just, And say: If we had been in the days of our Fathers, we would not have been partakers with them in the blood of the prophets.

Wherefore you are witnesses against yourselves, that you are the sons of them that killed the prophets. Fill ye up then the measure of your fathers. You serpents, generation of vipers, how will you flee from the judgment of hell?

--Jesus (Matthew 23:29-33)

Dr. Martin Luther King, Jr., was a spiritually animated individual who frequently referred to the Scriptures in his speeches, and on this day on which we remember him by means of a national holiday, your humble servant is reminded of the above passage which seems particularly fitting. For here we have a holiday and a memorial to remember Dr. King by, and many persons of importance will stand up to praise him and claim to cherish his legacy.

It is Martin Luther King Day, and we will be building his sepulcher, and adorning his monument, and we will say that if we had been the generation in power in 1968 we would not have been partakers in shedding his blood. In doing so we will testify against ourselves that we are the children of those who killed him.

Dr. King spoke against poverty in this land of abundance. There is still poverty here, in the midst of vast wealth. He spoke against economic injustice. The wealth disparity in this nation is widening, and has the support of our politicians. He spoke against our nation’s expensive military adventurism in contrast to the pittance spent on elevating the circumstances of the poor. Today our military adventures in the Middle East have drained our treasury, threatening even Medicare and Social Security, and our Nation’s War on Poverty has been rendered an idealistic dream. What’s more, as a Baptist preacher Dr. King found his inspiration in God whose justice he was confident he was furthering. Today God’s name is blasphemed by cynical politicians who infiltrate religions and try to annex them to their quest for power.

But we have a holiday to honor Dr. King. We say we would have been on his side in his struggles. We would have immediately seen the justice of his cause. We might have even marched with him. We build his sepulcher. We adorn his monument.

Happy Martin Luther King Day!

Mitt Romney's Defense of His Bain Capital Career Misses the Point

2012-01-12T14:48:00.000-05:00

Presidential Candidate Mitt Romney is trying to defend his career at the head of Bain Capital [1], an irony, since it has been that very career that he has touted as his chief qualification for the U.S. presidency. [2] He acknowledges that Bain Capital’s investments resulted in some job losses, but says that such carnage was necessary in order to preserve the businesses involved. As he puts it, there are “some businesses that have to be cut back in order to survive to try to make them stronger.”

Mr. Romney is completely missing the point. Yes, businesses sometimes have to lay-off employees in order to survive, and Mr. Romney may have been better than anyone in determining when that point had come. But the question is how this experience qualifies him to be President of the United States.

When the country faces fiscal hard times it isn’t possible to lay-off citizens. The obligations owed by companies to their employees are notably less than what a nation owes its citizenry. A business is only obligated to compensate employees in exchange for work, but a country owes something to even those citizens who cannot offer anything of value.

One also wonders how this business experience will help Mr. Romney in the area of foreign affairs. Recalcitrant employees can be fired, and companies can stop doing business with those who don’t measure up to standards. But it is a far different matter dealing with disagreeable nations which may sense sufficient provocation to open fire.

For some it sounds inspirational to suggest running the country like a business. But the country is not a business, and no one has any business saying that it should be run as such.

Mr. Romney is trying to change the subject by saying that he isn’t evil. But there are even good people who aren’t qualified to be President, and Mr. Romney’s business experience doesn’t add to his qualifications.

Mitt Romney Has Business Experience of the Wrong Kind

2012-01-10T02:15:00.000-05:00

Mitt Romney touts his business experience as a singular qualification for the office of President of the United Stated. [1] But now his opponents in the Republican primaries are calling the nature of that experience into question, pointing out that Romney’s business acumen was plied largely in the art of enriching his company, and himself, at the expense of laid-off workers. [2]

They refer to Mr. Romney’s career at the head of Bain Capital, which was in the business of buying companies, implementing its own business techniques, then selling them for a profit. [3] Of such ventures Ross Gittell, professor at the University of New Hampshire's Whittemore School of Business and Economics, has said: “The objective is: make money for investors. It's not to maximize jobs.” The bitter reality is that investors often realize a better return when jobs are slashed, and Bain Capital did not eschew this technique under Romney’s watch.

A telling example of Bain Capital’s strategy is the case of Dade International, a medical diagnostics firm acquired by Bain Capital and Goldman Sachs in 1994. [4] Dade was thereafter merged with several other companies, resulting in layoffs and plant closures. At least 1,600 employees were dismissed from 1996 to 1999.

In June of 1999 Bain Capital and Goldman Sachs decided that the time for harvest had come, and sold back their shares to Dade for $365.4 million. The problem was that Dade (now Dade Behring) couldn’t really afford the purchase. It borrowed so much money to make the transaction that when sales slumped and interest rates rose the company struggled to pay its creditors. It eventually filed for bankruptcy. “These guys worked there for two years and ended up as millionaires,” said a divisional vice-president whose position was eliminated. “I worked there for 25 years and I’m not a millionaire.”

That, of course, is how things go in the world of business. Your humble servant will refrain from painting Mr. Romney as a singularly sinister character. He may be better than most in his particular line of work. But does this history exemplify the skill set we want in a President of the United States?

Rick Santorum's Views on Same Sex Marriage May Involve a Category Mistake

2012-01-06T01:47:00.002-05:00

Rick Santorum’s views on gay marriage were getting him booed by college students in New Hampshire. [1] He’s against it, of course, but what is noteworthy is how he didn’t go about justifying his views. While he talked about the right of children to be raised by their biological parents, and his preference for legislative rather than judicial authorization for same-sex marriages, he never once said that sexual acts with a member of one’s own gender should be against the law.

The reason why that is important is that in the common law tradition inherited from England by every state in the United States except Louisiana, marriage is a civil contract and nothing more. [2] Whether a marriage complies with religious requirements is not of itself pertinent to legal consideratons of the matter, not only because of the First Amendment’s prohibition of the establishment of religion, but because of the common law conception of marriage that pre-dates the Constitution.

Now contracts are not enforceable if they violate public policy. [3] That’s why a drug dealer can’t sue for his money in court. So the pertinent question as to same-sex marriage, considered, as it ought to be, as a civil contract, is whether it violates public policy.

At one time it most certainly would have. But in 2003, in Lawrence v. Texas, the United States Supreme Court struck down a Texas statute making it a crime for two persons of the same sex to engage in sexual conduct on the ground that it violated the due process clause of the Fourteenth Amendment to the U.S. Constitution. [4] Thus, whatever opinions might be privately held regarding the morality of homosexual activity, it is clearly not violative of public policy.

So it appears that there is nothing in a marriage contract between two members of the same gender that violates public policy. What is found objectionable about a same-sex marriage is not two people of the same gender living together or sharing property, but in engaging in particular sexual activities. But it is those sexual activities that cannot constitutionally be proscribed, and cannot, therefore, serve as grounds for invalidating marriage contracts.

As for Mr. Santorum, in his talk with the college students, he specifically said that he didn’t have any problem with people having any kind of relationship they desired, but that traditional marriage should have a special status. If that is how he feels, then he agrees with the Court in Lawrence v. Texas that sex acts between two people of the same gender should not be illegal. But if that is true, how can he maintain with any consistency that a civil contract of marriage between two members of the same gender isn’t valid?

During his talk Mr. Santorum implied that the idea that a marriage is whatever people want it to be is ridiculous. But that is the nature of a civil contract. As long as it doesn’t contemplate some illegality, it is indeed whatever the parties to the contract want it to be.

Your humble servant has the same religion as Mr. Santorum, and has the same religious view of marriage that he has. The public debate, however, is not about the Catholic sacrament of marriage, but the civil contract that has the same name. We should not confuse the two because we have, by now, learned that the imposition of religion by governmental force is productive of nothing but hypocrisy.

Peace Talks With the Taliban? Not Really

2012-01-03T23:47:00.000-05:00

For those who enjoy cognitive dissonance, the Taliban, otherwise known as the Islamic Emirate of Afghanistan [1], has announced that it will be opening a political office in Qatar, and some are hoping that this will lead to a negotiated settlement for the conflict in Afghanistan. [2] Alas, the Taliban is not warm to the idea of negotiations, saying in a statement that “the perturbing reports spread by some news agencies and western officials about negotiations have no reality and are strongly rejected by Islamic Emirate of Afghanistan.” [3]

Well, that should be clear enough. But what is truly disheartening about all this is how those in a position to know better seem to keep missing the point. While negotiating with the Taliban has its own merit, there will be no peace settlement in Afghanistan without the direct participation of Pakistan.

The fact of the matter is that the Taliban won’t be reaching a settlement with anyone without Pakistan’s concurrence. Pakistan, it must be recalled, has undermined such efforts in the past when it believed that its interests were jeopardized. Two years ago, the Pakistanis arrested Abdul Ghani Baradar, the second-ranking Taliban leader after Mullah Muhammad Omar, in order to halt negotiations between the Taliban and the Afghan government. [4] They also arrested other Taliban leaders who had been enjoying Pakistani protection. As a result, the talks came to an end. The tragicomic aspect to the event is that the Pakistanis utilized the unwitting assistance of the CIA to make the arrest.

Unfortunately, that incident serves as a symbol of American fecklessness in Afghanistan. The Taliban is, and always has been, a proxy for Pakistani interests. [5] Thus the war in Afghanistan is, and always has been, a war with Pakistan. Pakistan seems to be aware of this fact, and the United States is not.

It is true that NATO forces aren’t engaged with Pakistani troops. That is because someone in Pakistan has been reading Sun Tzu’s The Art of War, which advises that “to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting.” [6] Sun Tzu also said, “All warfare is based on deception.” [7] What more masterful deception can there be than to deceive the other side in a war as to who its enemy actually is? It is difficult to prevail over an enemy when one is mistaken about the enemy’s identity.

So it is clear that there must be direct talks with Pakistan if there is to be a negotiated peace in Afghanistan. The problem now is to provide an incentive for Pakistan to negotiate. But why would it do that when it can wait for NATO to end its operations in Afghanistan in 2014, topple the government in Kabul through a proxy (doubtlessly the Taliban), and obtain everything it wants in Afghanistan without negotiating?

This is what happens when our leaders aren’t smart, and don’t pay attention.

The Enactment of the National Defense Authorization Act: a Sobering Look at How Some of Our Leaders View Constitutional Rights

2012-01-03T03:56:00.000-05:00

In the most recent offering on these pages your humble servant outlined how the National Defense Authorization Act (NDAA) for Fiscal Year 2012 permits the indefinite detention of American citizens without trial. [1] Also discussed was the rather half-hearted attempt to assuage the concerns of those fearing the erosion of constitutional rights by language in the Act providing that it should not “be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States,” [2] a provision that does nothing for detainees who are never charged with a crime.

Since the new law says that existing law regarding the detention of American citizens is not impacted by the 2012 NDAA, it is interesting to examine what certain members of Congress, and the President, understand that existing law to be. “Bone-chilling” is not a hyperbolic description of what such an examination reveals.

Senator Carl Levin (D-Michigan) was a sponsor of the Senate version of the bill, and is unrepentant about the potential for the indefinite detention of American citizens. What’s more, he thinks it’s perfectly constitutional. “Al Qaeda is at war with us,” the Christian Science Monitor reported him as saying. “They brought that war to our shores. This is not just a foreign war. They brought that war to our shores on 9/11. They are at war with us. The Supreme Court said, and I am going to read these words again, ‘There is no bar to this nation's holding one of its own citizens as an enemy combatant.’” [3]

So, if you’re Senator Levin, the 2012 NDAA may not affect existing law regarding the rights of U.S. citizens, but it is constitutionally permissible to detain them indefinitely without trial if it is decided that they are enemy combatants. Senator Levin didn’t need any stinkin’ 2012 NDAA to indefinitely detain Americans.

In accord is none other than that harbinger of hope and change, President Obama, the same individual who thought that bombing Libya without first consulting Congress wasn’t a violation of the War Powers Act. [4] On November 17, 2011 the Executive Office of the President issued a Statement of Administration Policy regarding the Senate version of the 2012 NDAA. [5]

Of concern to the Administration were the provisions of Section 1031 of the Senate version, [6] which were substantially the same as the provisions of Section 1021 of the Act as eventually enacted, and which contained the language permitting the indefinite detention of American citizens. In delineating its concern, the Administration made reference to the Authorization for Use of Military Force, which, you will recall, was the congressional authorization to the President for a military response to the 9/11 attacks. Regarding the provisions of the Senate version of the bill, the Administration said this:

“Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.”

What the President was essentially saying was that the President already had the authority to detain American citizens indefinitely without trial because that power was inherently granted in the Authorization for Use of Military Force enacted in response to the 9/11 attacks, but that spelling out that authority in the 2012 NDAA might open up a can of worms, since people would notice it, and efforts might be made to take the authority away, which the President would consider to be a bad thing. So the President didn’t need any stinkin’ 2012 NDAA to indefinitely detain American citizens either, and really wished that the Congress wouldn’t bring the subject up.

Senator Lindsey Graham (R-South Carolina), for his part, wanted to point out that the measure was making clear “that the homeland is part of the battlefield.” “It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” Graham said according to the Christian Science Monitor. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”

So according to Senator Graham, if it is decided that an American citizen helped al-Qaeda, and that citizen asks for a lawyer, the proper response is to tell that citizen to shut up. Obviously, he is not the only one in Washington who holds that view. Anyone who thinks that giving this kind of power to the government isn’t dangerous to the citizenry should have flunked history if he didn’t.

Regarding the elections to be held in the United States this year, your humble servant sees no reason for returning any member of Congress who voted for the 2012 NDAA to office. While it is not at all clear that the major political parties will offer a sufficient number of candidates opposed to government having this kind of power over citizens, sending such politicians to the private sector may serve as something of a future deterrent.

The National Defense Authorization Act for 2012 Permits the Indefinite Detention of American Citizens

2012-01-01T01:30:00.002-05:00

Well, he went ahead and did it. Yesterday President Obama signed the National Defense Authorization Act for Fiscal Year 2012 into law. [1] While the enactment of a National Defense Authorization Act (NDAA) is an annual event, the NDAA for 2012 contains a sucker punch at civil liberties that its sponsors had hoped wouldn’t be noticed.

But noticed it was, and there were critics to be heard. [2] The problem with the 2012 NDAA is that it allows for the indefinite detention of American citizens without trial. [3]

It is easy to anticipate that there will be voices criticizing such an analysis as hysterical. It therefore behooves your humble servant to lay out the facts of the matter in detail, said facts being contained in the legislation in question.

To put the legislation in its proper context it is necessary to recall the action taken by Congress in the wake of the 9/11 attacks. On September 18, 2001, Congress enacted a joint resolution called, simply, “Authorization for Use of Military Force,” authorizing “the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.” [4]

The language of the resolution was “[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” It became Public Law 107-40.

With that background, we turn to an analysis of the pertinent language of the 2012 NDAA. Section 1021 of the legislation “affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain” certain “covered persons.” [5]

A “covered person” under the law is defined as “[a] person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or “[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

You will notice some ambiguity here. How does one “substantially” support al-Qaeda, the Taliban, or those associated forces? Does arguing against the conduct of the so-called war on terror count as substantially supporting them? And who are those “associated forces”?

The legislation goes on to specifically authorize detention of covered persons “under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” But when will those hostilities end? When will we be able to say that hostilities with al-Qaeda are over? Are we expecting them to surrender? Is al-Qaeda going to sign an armistice agreement?

Simply asking these questions reveals the absurdity of anticipating a specific end of hostilities with al-Qaeda. That means that hostilities with al-Qaeda can be expected to last indefinitely, as is the length of detention of covered persons authorized by the 2012 NDAA.

The question then becomes: can this be done to American citizens under the legislation? The legislation provides that it should not “be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

It is comforting to know that that the 2012 NDAA doesn’t allow for indefinite detention for those arrested for drunk driving. But the covered persons envisioned by the legislation are people who will be detained as enemies of the United States. There is nothing that guarantees that such people will be charged under the criminal law at all, and, if they are not, ordinary criminal procedures won’t be triggered. Courts may not be willing to allow the indefinite detention of citizens without trial, but nothing ensures that the conditions of detention will be such as to permit detainees access to a lawyer or any contact with the outside world at all.

Section 1022 of the legislation requires the military to hold any person who is determined “to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda,” and “to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” It is important to note that while the law requires the military to hold the persons described, it doesn’t forbid the military from holding those who don’t meet the description. Indeed, as has already been pointed out, Section 1021, the immediately preceding section, specifically authorizes it.

The reason why it is important to understand this is because there is a provision in Section 1022 that might be misleading. That provision says that “[t]he requirement to detain a person in military custody under this section does not extend to citizens of the United States.” There is a similar provision covering lawful resident aliens.

Be not deceived. Proponents of the law are likely to point to that provision in order to argue that citizens have no cause for concern in the legislation. Thus, it is important to understand that that the provision means only that the military is never required to detain an American citizen. It in no way forbids the detention of a citizen.

The sum of it all is that we now have legislation in the United States that authorizes the indefinite detention of American citizens without trial. That is dramatically unconstitutional, of course, but such detainees may very well be deprived of access to the courts to enforce their rights.

Happy New Year!

Merry Christmas

2011-12-23T23:08:00.000-05:00

Merry Christmas, everyone! I'll be back to blogging sometime after the holiday.

Some Words from Someone Whose Birthday We Are About to Celebrate

2011-12-22T01:15:00.000-05:00

‘Tis the season. As we approach the annual celebration of the birth of Jesus Christ, perhaps we, as the Jethro Tull song says, “would do well to remember the things he later said.”

One thing he said was, “Blessed are the poor in spirit: for theirs is the kingdom of heaven.” Blessed, in other words, are those who look at the humanity around them and see no one to whom they feel superior. Those who understand that the poorest of the poor, the vilest criminals, and even our enemies, have equal dignity with the wealthiest and most powerful people on earth, and act and speak accordingly, are the ones who are the true subjects of God’s kingdom, the citizens of God’s society, and are the ones who can expect to receive the benefits of that society.

Another thing Jesus said was, “Blessed are the meek: for they shall possess the land.” Nations contend and go to war over resources. Citizens within a nation do the same, and their representatives in legislatures wrangle over who the laws will favor, feigning that the interests they represent are the only repositories of justice. Resources, in a word, are distributed according to the outcome of violence. But Jesus saw that the land belongs to those who do not so contend, who understand that their interests are only one among many, and who permit the instinct of commonality to override that of acquisition. Confident of the justice of God, he promised that not only does the earth rightfully belong to such people, but that they will, in fact, possess it.

“Blessed are they that mourn: for they shall be comforted.” Of course, the world, for now, is not a place that favors the meek. It is not a place where every person is accorded equal dignity. This situation represents a loss, the loss of the potential and promise of humanity expressed eloquently in the story of the primordial Paradise. Those who feel the pain of that loss are among the blessed, for it is they who know humanity’s true destination, and they will be comforted when we finally arrive.

“Blessed are they that hunger and thirst after justice: for they shall have their fill.” When every person is accorded equal dignity, when resources are not distributed by violence, when what has been lost in us has been found, only then will justice be achieved. Those who seek that justice are blessed, because that day will arrive. The faith of Jesus is that good will ultimately triumph over evil, and they are blessed who share that faith.

“Blessed are the merciful: for they shall obtain mercy.” The world is now a place where the ruthless triumph. Many look after their own interests, and disregard the suffering their actions may cause others. If someone gets in their way, they push them aside if they can. If they see that someone’s fortune depends on them, they press the advantage. But God is merciful because he is strong enough to show mercy, and those who would be on the side of God must be merciful as well. It is only the faithless who believe that they must prosper at the expense of others.

“Blessed are the clean of heart: for they shall see God.” God, being all-powerful, has no need of ulterior motives or duplicity. People who have faith enough to believe in God’s strength have no need of them either. Those who would know God, must become like him.

“Blessed are the peacemakers: for they shall be called children of God.” The follower of Jesus does not believe in the principle of divide and conquer. He does not seek the defeat of his enemies, but their reconciliation. He is not indifferent to the pain he causes others. What’s more, he knows that the totality of humanity is an organism, and that strife between some affects everyone. Thus he works to bring reconciliation to the world, which can only come about through justice for everyone.

“Blessed are they that suffer persecution for justice' sake: for theirs is the kingdom of heaven.” Those who act justly, those who seek justice, will surely encounter opposition, sometimes quite violent, from those that think their interests lie elsewhere. Alas, there are many such people. But it is a blessing to encounter such opposition, for those who do can know that they are true citizen’s of God’s society, the society that, because it is God’s, will inevitably triumph.

“Blessed are ye when they shall revile you, and persecute you, and speak all that is evil against you, untruly, for my sake: Be glad and rejoice, for your reward is very great in heaven. For so they persecuted the prophets that were before you.” It is hard to be just. It is hard to work for justice. Harder still is to identify with Jesus in doing so. But one must not do these things because people will praise him, or build monuments to him, or give him public service awards. One does these things because they are right. But it is to be expected that those who oppose Jesus and the things he taught will not bar any holds. Disrespect, libel, and even violence is to be expected. If it happens to you, Jesus says, be happy, because you are in the best of company.

Merry Christmas!

Biblical quotes are from Matthew 5:3-12, Douay-Rheims Version (Challoner Revision)

Politifact's Lie of the Year: Perhaps a Truth Badly Stated

2011-12-20T14:38:00.000-05:00

Politifact’s designation of the claim that Republicans voted to end Medicare as the “Lie of the Year” for 2011 [1] has a point. One unfamiliar with the debate might come away with the impression that the Republicans sought to bring an end to Medicare and replace it with nothing, which is clearly untrue.

The claim should have been that the Republicans voted to end Medicare as we know it. The Republican plan, put forward by Rep. Paul Ryan (R-Wisc.), was to privatize Medicare, and save the government money by increasing the cost to seniors, a sinister enough proposal.

But Jonathan Gruber, an economist at the Massachusetts Institute of Technology, who advised both President Obama and Republican Mitt Romney on health care, points out what is, perhaps, the most telling aspect of Rep. Ryan’s plan. The Ryan plan would have private insurers sell health insurance to seniors through a Medicare health insurance exchange. Seniors would get premium support payments to help finance the premiums.

That should sound familiar. Health insurance exchanges are a major aspect of the health care reform that was shepherded through Congress by President Obama, and that was opposed by Republicans. Jonathan Gruber points out the inconsistency. “Ryan basically proposed the Affordable Care Act for future seniors,” he says. “I don't understand how you can like it for future seniors but not like it for today's needy uninsured. That doesn't make any sense.”

It doesn’t make any sense if you’re looking for logical consistency. But if you consider the possibility that the Republicans are seeking to abolish a health care benefit for the needy that is relatively new, and are seeking to do as much damage as they believe they politically can to a well-established benefit for seniors, then it makes perfect sense.

There are many U.S. citizens who are not wealthy who continue to vote for Republicans. Why do they do that?

Nearly One-Half of Americans Are Poor or In Poverty: With What Outcome?

2011-12-15T15:19:00.000-05:00

Nearly half of Americans are now in poverty or fall into the low-income classification. [1] Unless we can expect corruption and stupidity to disappear from Washington in the near future, there is little reason to anticipate that Congress will soon be doing anything about this problem. But there is ample reason to hope that the problem won’t last indefinitely, although the means of achieving its resolution will be less desirable than would be the case if the United States had more enlightened leadership.

According to the ancient Chinese philosopher, Lao Tzu, speaking of the proper treatment of those subject to a sovereign, says that “the sage in the exercise of his government, empties their minds, fills their bellies, weakens their wills, and strengthens their bones.” [2] We citizens of the United States have been having our minds emptied and our wills weakened for some time.

The fact is, Americans as a whole no longer know how to think. Political discussions in this country are, by and large, emotional expressions, revealing much about the subjective states of the speakers, but virtually content free as to workable solutions for social problems. Moreover, widespread ignorance of history and the context of history, as well as ignorance regarding the very Constitution itself, have convinced most that there are no solutions to be had outside of the dominant paradigm, an attitude that proves self-fulfilling.

Up to now, however, our ruling class has kept most of us with our bellies full and our bones strong. Those who did not enjoy that beneficence remained at the margins to serve as a warning to those who might stray from the paths of desirable conduct, and the emptying of minds served to divert people from considering the outrage of poverty in a nation of such wealth.

But, for whatever reason, much of the ruling class no longer considers the foregoing as a workable model of governance, and that faction of the plutocracy is beginning to gain the ascendancy. The idea that our bellies must be kept full, and our bones strong, is no longer winning the day, and many Americans can expect challenges in those areas in the near future.

One hopes that this newer, younger, and more brutal ruling class is making a serious mistake, and that Americans will not tolerate empty bellies and weakened bones. Perhaps it will prove true that empty minds and empty bellies cannot exist in the citizenry simultaneously. In a word, perhaps the people will fight back when they become hungry. If the rulers are wise we will not have to find out. But the rulers are not wise.

Sign the Petition Embodying the Original Demand of the Occupy Wall Street Movement

2011-12-13T22:40:00.002-05:00

In yesterday’s post [1] I asked why President Obama doesn’t acquiesce to the original demand that sparked the Occupy Wall Street movement, specifically, the “demand that Barack Obama ordain a Presidential Commission tasked with ending the influence money has over our representatives in Washington.” [2] As it turns out, there is a method that can get this demand to the President directly, but it will require the help of 25,000 American citizens.

One can post a petition at the White House web site, and if it gets 25,000 signatures in 30 days, the White House will respond to it. 150 signatures are required before the petition is searchable on the site. I have posted a petition at the site that reads:

“We petition the Obama administration to: ordain a Presidential Commission tasked with ending the influence money has over our representatives in Washington.”

This proposal should be relatively non-controversial, so I urge readers of this blog to go to the site and sign the petition, which you can find here.

You will need to register for an account at the site in order to sign, which is a fairly straightforward process. Understand that you will be asked to create a password (not give them any passwords you already have).

The 25,000 signatures will be needed by January 11, 2012, so please act on this as soon as you can. After you have done so, please share this post with others.

It's a reasonable demand. Let's get it done.

The Port of Oakland is Blocked and President Obama Still Doesn't Get It

2011-12-12T14:20:00.000-05:00

President Obama still doesn’t get it. He can speak sympathetically about the Occupy Wall Street movement indefinitely, but until he does something concrete in response to the movement he remains in de facto opposition to it.

Today hundreds of protestors blocked the Port of Oakland [1], and it should be becoming increasingly clear to the President that the protests will not simply fizzle away. As long as nothing is done, nothing should be expected to change.

What should he do? Simply that which has been demanded of him from the beginning. The demand was clearly stated in the original Adbusters announcement that sparked the movement: “we demand that Barack Obama ordain a Presidential Commission tasked with ending the influence money has over our representatives in Washington.” [2]

All the President needs to do is establish a credible commission answering to the demand, and he will be able to say that he has accomplished what the movement has been calling for. How hard can that be? Why won’t he do it?

It is not Envy that Calls One to Community Responsibility

2011-12-09T12:07:00.000-05:00

In an article in the St. Louis Beacon, R.W. Hafer says that President Obama is against success [1], and asks the question: “Is it true that someone's success must come at the expense of others?” If you answer that question in the affirmative, then, according to Dr. Hafer, you must believe that the talented, the hard working, and the risk takers shouldn’t be rewarded, and that all wages and incomes should be leveled to prevent inequality.

Dr. Hafer is a research professor of economics and finance at Southern Illinois University, Edwardsville, and must, therefore, be aware that resources are finite. As a matter of arithmetic, those who own more than a proportionate share of those resources will by that ownership necessitate a lesser share for others. Simply observing that logical and empirical reality does not make one in favor of leveling incomes or removing incentives from the economic system.

What the observation might do is convince one that there ought to be safeguards in place to ensure that everyone has enough. That is always the real debate: should there be an economic safety net for the less able among us? And should the more able, in our case those more able to accurately anticipate the prices of gold or pork bellies, contribute to ensure that those who have lesser skills like teaching, carpentry, or fixing automobiles don’t fall below a certain level?

Besides, sometimes the success of some does indeed come directly at the expense of others. When companies move their manufacturing facilities outside of the United States, they do so at the expense of the jobs of those they previously employed, and of the country as a whole that must bear the economic burden of the corresponding reduction in consumer purchasing power. They also institutionalize low wages in developing countries.

Those who object to the widening income disparity in the United States are not doing so because of envy. On the contrary, what is being suggested is that those who benefit the most from the prevailing economic system in the United States should be the first to recognize that they are part of a larger community called the nation, and should act accordingly.

Pakistan's Rational Irrationality

2011-12-06T22:47:00.000-05:00

In a December 5, 2011 editorial, the New York Times laments that Pakistan is refusing to do anything to calm the public fury within that country over the NATO attack that killed 24 Pakistani soldiers, or participate in a joint investigation with the United States to determine the cause of the incident. [1] This is a move that the paper believes is self-defeating for the Pakistanis.

But why would the Pakistani government care if its populace hates the United States? What the Pakistani government does not want the Pakistani population to hate is the Pakistani government, and if that government becomes an apologist for the United States regarding an incident in which 24 Pakistani soldiers were killed it is likely to be viewed by Pakistanis as an American puppet.

As for an investigation, what need does the Pakistani government have of that? The Pakistanis have already decided what happened: an unprovoked attack by the United States and NATO on Pakistan. A decision by the government to participate in a joint investigation with the U.S. would indicate a willingness to consider another possibility, and neither Pakistan’s populace, nor its military, will have any of that.

So it is difficult to see how Pakistan’s government is doing anything self-defeating here. In fact, it seems to be doing the rational thing for purposes of its own survival.

Another move by Pakistan that the New York Times calls self-defeating was its boycott of the international conference in Bonn, Germany where the future of Afghanistan was discussed. “Pakistan has a strong strategic and economic interest in Afghanistan’s future,” the paper says. “With its boycott, it has denied itself a voice and increased its own isolation.”

Actually, Pakistan has done no such thing. Unless the United States wants to keep its troops in Afghanistan forever, the country that will decide Afghanistan’s future is Pakistan. But the United States does not want to stay in Afghanistan forever, and the government in Kabul is feckless and corrupt. As things now stand, once the U.S. and the rest of NATO leave Afghanistan, the country will be taken over by Pakistan’s Taliban proxies in short order.

Pakistan is not behaving irrationally or against its best interests. It is waiting us out.

A Contradiction in Capitalism

2011-12-05T12:39:00.000-05:00

American Airlines filed for Chapter 11 bankruptcy last week as a strategy for controlling its labor costs. [1] This is the approach that was taken by other airlines a decade ago after airline deregulation created downward pressure on the price of airline tickets. American Airlines had initially avoided bankruptcy by obtaining moderate concessions from its unions.

Thus we see in stark relief the contradictory forces that emerge from capitalism. Lower prices are better for people as consumers, but worse for them as workers. Price competition may lower prices, but also creates the incentive to reduce employee compensation which, in turn, brings about the situation where there are fewer people who are able to afford the various goods and services produced by the economy. Clearly, this is an economic model that cannot work well for the vast majority.

What to do? The first thing to consider is not throwing the baby out with the bathwater. Competition has obvious benefits in ensuring that services and products that people actually need or want will command the productive resources of society, as well as keeping prices down. That is one reason why socialism in the strict sense, where the government owns all of the means of production, promises inefficiency and a waste of resources.

The problem with capitalism is not its efficiency brought about by competition, but its exploitation of labor. To realize a profit, a capitalist enterprise must compensate its employees in an amount less than the value those employees add to the enterprise. But if a business were to pay wages and salaries at a rate that fully compensated the value added, it would not be able to make a profit.

This contradiction can only be resolved by compensating employees for the value they add to business enterprises with proportionate shares of ownership in those enterprises. This would not be in the place of ownership on the part of investors, but alongside with it. Employees would not be required to pay for their ownership shares, because those shares would be given as compensation for the value the employees have already contributed as determined by a proportionate share of profits.

While the institution of such a system would surely involve a massive paradigm shift, which would in itself be a cause of strong resistance to the plan, it is the only way in which the contradictions inherent in capitalism can be resolved without resorting to socialism. Otherwise we will remain with the current and ultimately unsustainable method of rewarding the exploitation of labor.

House Republicans Try to Override New NLRB Rules Speeding Up Union Elections

2011-12-01T02:06:00.000-05:00

The National Labor Relations Board (NLRB) has approved new rules that will speed up the union election process, and Republican lawmakers in the House have responded with legislation that would override the NLRB plan by requiring that union elections occur no earlier than 35 days after a union collects signatures and files a petition. [1] Apparently business groups are complaining that the new rules don’t give company managers enough time to try and talk their employees out of unionizing.

One wonders what those company managers want to tell the employees. Do they want to tell them that even though non-union employees in the United States consistently earn less than their union counterparts [2], that they shouldn’t be so materialistic? Do they want to say that wanting actual bargaining power in their place of employment is a sign of ingratitude? Maybe they want to make them aware that there are children in India willing to work longer hours for far less money, and that the company will have to consider relocating if a union gets certified.

From time to time it comes up that some working people vote for Republicans. Why do they do that?

There is a Proposal in the Senate's Version of the 2012 National Defense Authorization Act that Would Authorize the Indefinite Detention of American Citizens: You'd Better Believe It

2011-11-29T01:14:00.000-05:00

Ordinarily, when I hear news like the U.S. Congress is considering legislation that will permit the indefinite detention of American citizens without trial, I suspect that some manifestation of the alarmist fringe journalism we see so much of these days is the source. But it turns out there is in fact such legislation being considered by the Senate.

Every year the Congress passes a National Defense Authorization Act. But the version being proposed in the Senate for 2012 contains a provision that covers any person “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” as well as any person “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” [1] You will note that the quoted language doesn’t exclude American citizens.

The act specifically authorizes such persons to be detained until hostilities with al-Qaeda, the Taliban, and “associated forces” are ended. But when will hostilities with al-Qaeda ever end? So, it is apparent that the potential length of detention under the legislation is indefinite.

There is additional wiggle room afforded through ambiguity. For example, what are “associated forces”? Also, how does one substantially support al-Qaeda, the Taliban, or those “associated forces”? So be careful out there that you don’t substantially support one of those groups by doing such things as, say, criticizing the authors of this proposed legislation.

Such a person is required to be detained if he is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and has “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” But this requirement doesn’t apply to citizens of the United States. It also does not apply to lawful resident aliens where the detention would be based on conduct taking place within the United States. Detention of such persons is authorized, mind you, it just isn’t required.

So who served up this swill before the upper house of our national legislature? None other than Senate Armed Services Committee Chairman Carl Levin (D-Mich.) and ranking Republican John McCain (Ariz.). [2]

One suspects that the proposed legislation as it now stands will probably never become law. Senator Mark Udall (D-Colo.) has proposed an amendment striking the detention provisions from the bill [3], and the White House has threatened to veto the legislation because of the mandatory detention provisions. [4] But the fact that such a thing was attempted at all should inspire the citizens of Michigan and Arizona to compel Senators Levin and McCain to find another line of work at the earliest opportunity.

NATO Airstrikes in Pakistan May Force the U.S. Administration to Come to Grips with Reality

2011-11-28T01:05:00.000-05:00

They’re burning President Obama in effigy in Pakistan. [1] The United States and Pakistan have been on a collision course ever since NATO toppled the Pakistani-backed Taliban in Afghanistan. The relationship between the two countries has reached crisis proportions with the recent NATO air strikes in Pakistan that killed at least 25 Pakistani soldiers. [2]

The attack occurred about a mile and a half inside Pakistan across its border with Afghanistan. It seems that NATO and Afghan troops operating near the border came under fire from an unknown source, and called in coalition airplanes for assistance. Given recent history [3], it shouldn’t create much of a shock if it turns out that Pakistani forces were firing on the NATO and Afghan troops prior to the air strikes, or giving assistance to those who were.

If that turns out to be the case, then the spin that will be put on the incident was that the strikes were legitimate defense against attack. But that would be entirely beside the point. The Pakistani population is strongly anti-American [4], and there is no way for the Pakistani government to concede that the death of 25 of its soldiers was the result of anything resembling legitimate combat, or even that the strikes were an accident.

The fact is that the two countries can’t keep ignoring the fact that they are enemies forever. The United States, at least, should start awakening to the reality soon, since Pakistan has retaliated to the air strikes by shutting down two main NATO supply routes into Afghanistan, including one through which NATO receives about 40 percent of its supplies.

But consciousness of the true relation between the United States and Pakistan is critical if the U.S. hopes to ever extricate itself from Afghanistan without the Taliban immediately seizing power upon our departure. The U.S. State Department is going to have to come to grips with the fact that it must negotiate with Pakistan over the future of Afghanistan.

Pakistan wants guarantees that it will not be facing a hostile government in Kabul, especially one oriented toward India. That should not be impossible to arrange. Afghanistan, like Pakistan, and unlike India, is an Islamic country. A strong Afghan government would most certainly resist any attempt at encroachment on the part of India (this assuming for the sake of argument that India is even interested in such a venture).

It is in the interest of both the U.S. and Pakistan that there be a strong government in Afghanistan, capable of defending itself and resisting intrigue. Negotiations between the two countries, then, should be relatively straightforward. Those negotiations will start as soon as the American administration begins to get a grip on reality.

A Reason To Be Thankful

2011-11-23T23:56:00.000-05:00

There are those who deride Thanksgiving in the United States as the celebration of a history of genocide, slavery, and brutal conquest. [1] I am not among them.

I don’t take this position because I am blind, willfully or otherwise, to a host of atrocities committed by the United States throughout its history, continuing even to today. Only a fool would assert that our nation has thoroughly abolished its own evil. A nation does not become the world’s preeminent economic and military power by following the ethics of the Sermon on the Mount.

So what, then, is the point of a national holiday to give thanks to One whose best spokespersons would denounce so much of what we have done as a nation? For me, the blog that you are reading is a good example.

By that I don’t mean that this blog is anything like a national treasure, or, for that matter, anything much more than a public nuisance. What I mean is that although the value of what is said here may be questionable, the fact remains that I am able to say it with little more trouble than typing the words. And although I repeatedly criticize our government, our mode of economy, and even our military efforts, I remain at large. I have not been fined, jailed, or even forced to get a license. Moreover, I know that if any government personnel attempted such a thing, our courts would intervene to protect my rights under the First Amendment.

I am not engaging in delusions of grandeur here. I don’t enjoy these benefits simply because I am obscure. Even the New York Times was protected by the First Amendment in its publication of the Pentagon Papers. [2]

What all of this means is that our nation remains ultimately protected by its Charter from the one indispensable tool of tyrants: censorship. Even if a corporate media has arisen to sanitize the information dispensed to the public, it cannot do away with alternative sources that develop to fill in the informational gaps.

As a result Americans have been able to see the cruelty of slavery, the cold-bloodedness of the oppression of women, the malevolence of Jim Crow, the callousness of Vietnam, and the injustice of poverty. There was a time when these assessments would have been far more controversial than they are now. Rare is the mainstream politician today who would argue for segregation.

Because ideas can circulate freely with the protection of the First Amendment, good ideas can take hold. We can thus see for ourselves a verity rarely enunciated but often observed in the particulars: good is rational and evil is irrational. Irrationality can only be victorious through the censorship that our Constitution prohibits.

As a result, our nation has a rare ability to advance, to improve beyond its evil, to reform, to get better. I believe that we will continue to improve and get better, just as we have done in the past. For that I am thankful.

The Supercommittee Has Failed to Reach a Deal and the Joke is on the Republicans

2011-11-22T23:13:00.000-05:00

Now that the Joint Select Committee on Deficit Reduction aka the “Supercommittee” has declared itself unable to reach a deal, the brain trust of the Republican Party is starting to realize that it has been bamboozled. The automatic cuts to both military and domestic programs that have been triggered by the Committee’s failure are turning out to be a sucker punch for the ages, and the Republicans are scurrying about trying to figure out how they can wiggle out of the deal they made back in August. [1]

There will be no such luck. President Obama has said that he will veto any attempt to legislate the triggered cuts away. So if the Republicans can’t come to terms with the Democrats on budget deficit reduction, there will be $55 billion per year in cuts to defense spending beginning in 2013. What will not be cut under the trigger are Social Security, Medicaid, Veteran’s benefits, Pell Grants, Disability Insurance, Supplemental Security Income (SSI), and the Children’s Health Insurance Program (CHIP). While there will be cuts to Medicare, there will be no cuts to beneficiaries, only providers, and those cuts will be capped at 2%.

To cap this all off, the Bush tax cuts are due to expire at the end of next year. So if nothing is done, there will be cuts that the Republicans don’t want, there will not be cuts that they do want, and the Clinton era tax rates will return. [2]

At the end of the day, this may turn out to be a good way to get the budget under control. But anyone who isn’t rolling on the floor laughing at this point is either a Tea Party partisan, or isn’t paying close enough attention.