Tuesday, June 9, 2009

Keeping An Eye On The Right And Other Things That Will Turn Your Stomach.

Keeping An Eye On The Right And Other Things That Will Turn Your Stomach.


Senate Sets Sotomayor Hearing Date

Updated 12:45 p.m.
By Garance Franke-Ruta

The Senate Judiciary Committee has set a date for the start of confirmation hearings on Judge Sonia Sotomayor's nomination to be associate justice of the Supreme Court: July 13.

"In selecting this date I am trying to be fair to all concerned," said Judiciary Chairman Sen. Patrick Leahy (D-Vt.) in a statement. "I want to be fair to the nominee and allow her the earliest possible opportunity to respond to the attacks made about her character."

"It is not fair for her critics to be calling her racist without allowing her the opportunity to respond," he continued in an apparent reference to widely covered -- and later retracted -- remarks by former House speaker Newt Gingrich calling Sotomayor a racist on Twitter. "I do not want to see this historic nomination of Sonia Sotomayor treated unfairly or less fairly than the Senate treated the nomination of John Roberts."

A quick hearing is something Republicans had hoped to avoid, with Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee, saying he thought late summer hearings would be preferable. "I don't think that this should be rushed," he said late last month. "I don't believe we can do this before August."

Leahy appealed to precedent in making his announcement. "This is a schedule that tracks the process the Senate followed by bipartisan agreement in considering President Bush's nomination of John Roberts to the Supreme Court in 2005," Leahy said in a statement on the Senate floor. "....If 48 days were sufficient to prepare for that hearing, in accordance with our agreement and the initial schedule, it is certainly adequate time to prepare for the confirmation hearing for Judge Sotomayor."


Nuclear Threats And Double Standards Pt.1

Nuclear Threats And Double Standards Pt.2

Genocide In Peru

Recent free trade agreements signed with the American and Canadian governments fueled the government to go ahead with changes to domestic laws that would seek to advance mineral, logging, oil and agricultural ‘development’ into previously untouched areas of the Amazon. This touched off a over-50-day protest that has shut down parts of the Amazon.

Ranting Rush

Rush on Tape: They Won't Silence Us 

This past Saturday Rush Limbaugh won the 'Freedom of Speech Award' at the Talkers convention of talk radio hosts in New York. Newsmax was there -- and we have the video tape. Rush vows that Obama and the liberals in the media won't shut him up. He also warns about the new threat to free speech. See the Full Rush Video -- Go Here Now.

More From The Right

The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order.”
— Franklin D. Roosevelt (Commonwealth Club Address, 1932)

“Roosevelt was wrong! The principles laid down in the Declaration of Independence are the principles of individual liberty. Our unalienable rights, given to us by God are given to us as individuals. Our rights do not come from society or the government, and they cannot be redefined by politicians. The nature of these rights carries with it the implication of individual responsibility, without which we surrender them.”
— Perri Nelson, November 6, 2008

Then and Now – again.

Published Mon, Jun 8 2009 10:10 PM


About a year ago, I wrote the following posting. Nothing in it has really changed since, and it was one of my more popular postings, so I present it here again.

After a few years of serious thought on the subject, I've come to an inescapable conclusion: The United States of America today is nothing like the country that our founders envisioned. The form of our government pays lip service to the form of government that the founders established, but it's very different in fundamental ways. Even so, I still find it preferable to the governments of any other nation on Earth. I think I'd prefer the government our founders envisioned, but the changes would be a shock for us all.

One of the first things that distinguishes our country from that envisioned by the founders is how we think of it. Today we say that “The United States of America is” great. (Well, I say that. There are some that would say otherwise.) In the past, I imagine that we might have said that “The United States of America are” great. It's a subtle distinction, but the founders envisioned the federal government as tying together individual states to present a common face to the world. That vision changed sometime in the mid nineteenth century. The government of the United States was not originally a government “of the people, by the people, for the people” as stated in President Lincoln's Gettysburg address. Rather it was a government “of the states, by the states, for the states”.

The government of the United States of America is not, and never has been a democracy. In fact, as far as I can tell, the government of no nation on Earth is a democracy. In a democracy, the people vote on every decision of the government. Imagine how unwieldy that would be with a population of over three hundred million people. We have a hard enough time as it is determining who is eligible to vote in national elections and counting ballots accurately even when we have months to prepare for the election. Is it any wonder that even today's proponents of direct democracy don't really argue for a “true” democracy?

Instead of a democracy, our federal government is a representative republic. We (the people) elect representatives to enact our laws. Under the original system, as envisioned by our founders and hammered out with much compromise, the people elected representatives to “the people's House”, the House of Representatives, and the state legislatures elected two representatives to serve in the Senate. That changed in April of 1913 when the seventeenth amendment to the Constitution was ratified. Now the only real distinctions between the House of Representatives and the Senate have to do with which house can initiate legislation for appropriations and which house gets to ratify treaties, the appointment of ambassadors, judges, and cabinet officials. That, and the length of their respective members terms of office.

As I said earlier, I'd prefer the government our founders envisioned. That includes the way our Senators are chosen. I'd personally like to see the seventeenth amendment repealed and return the selection of our Senators to the state legislatures. It's a fair bet that that's not going to happen in my lifetime though, if ever. Besides, it might make little difference anyway. My wife is fond of reminding me that our elected representatives don't listen to the people who elected them anyway. For the most part, she's right about that, and I don't think that Senators are or would be any different. As it stands now, our Senators pander to the people at election time and then do what they damned well please once they're in office. Returning the power of selection to the state legislatures isn't likely to change that at all, especially when state legislators act the same way themselves.

For that matter, repealing the seventeenth amendment would probably have little effect for another reason. Part of the reason why the seventeenth amendment was even proposed in the first place has to do with the fact that state legislatures couldn't be bothered to live up to their responsibilities under the federal Constitution in the first place. As I understand it, some states went without representation in the Senate because their legislatures couldn't select Senators. Other state legislatures simply passed on the responsibility for the selection of Senators to the people, holding popular elections and then selecting the winners of the popular elections to be their senators. It was a freshman senator (Joseph Little Bristow,  a Republican from Kansas) that proposed the seventeenth amendment, although he was elected by the Kansas legislature. Interestingly enough, Sen. Bristow was defeated in his re-election bid in 1914.

The seventeenth amendment wasn't the only change in the structure of our federal government though. There have been a total of twenty-seven amendments to our Constitution over the centuries since it was ratified. Quite possibly the most disastrous of all of them is the fourteenth amendment. I say this even though the authors of the fourteenth amendment quite possibly had the most noble of intentions, and despite the fact that I am almost certain that my liberal friends will excoriate me for it.

First of all, the fourteenth amendment was for the most part unnecessary. The fourteenth amendment didn't abolish slavery in the United States, that was done by the thirteenth amendment. The fourteenth amendment didn't grant the right to vote to black people or former slaves, that was done by the fifteenth amendment. Among the amendments to the Constitution that I like, these two, the thirteenth and fifteenth are near the top of the list of positive changes to our government's structure. While the fourteenth amendment also included some positive changes, I think that the law of unintended consequences has resulted in some negative changes. Some of the negative consequences of the fourteenth amendment (in my opinion) include:

Anchor Babies —

The fourteenth amendment begins with the statement “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” At first read this seems like a good idea, and the intention was obviously to remove any doubt about the citizenship of people who were born slaves and freed by the thirteenth amendment. This was wholly unnecessary though, since Congress could have enacted a law that granted citizenship to those people since Article 1 section 8 of the Constitution explicitly grants the Congress the power to “establish an uniform Rule of Naturalization”. The unintended consequence of the Constitutional amendment as it is wordedis that we now have people deliberately violating our immigration laws with the express intent of having a child in the United States so that that child can be a United States citizen and serve as a buffer to prevent their deportation.

The Effective Rewriting Of The First Amendment —

The fourteenth amendment states in part “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Our federal courts, (particularly our Supreme court) have, in my opinion interpreted this badly. Explicit prohibitions against certain federal actions have been extended to the states, to our counties, to our cities, and even to our public schools as a result. Where the first amendment begins with the words “Congress shall make no law”, court interpretations of the fourteenth amendment have changed the intent to “no governmental body or agency shall make any regulation”. Some people see this as a good thing, but to me it has resulted in a perversion of the first amendment. Where once, Congress could enact no law that prohibited the free expression of religion our courts do so with impunity, in the name of prohibiting the “endorsement” of religion by government at any level.

Even liberal Democrats should have reason to dislike this part of the fourteenth amendment. After all, they love to repeat the mantra that President Bush was “selected, not elected”. It was the equal protection clause of the fourteenth amendment that was invoked by the Supreme Court when they decided Bush v. Gore in 2000, effectively ending the recounts in Florida, resulting in President Bush's electoral victory. Ironically, if the full recount using uniform standards that was mandated by the Supreme Court had been undertaken in the first place, Al Gore might have been President. It was his decision to try counting only heavily Democratic counties in the first place that resulted in his election loss.

For a while, I labored under the misapprehension that the fourteenth amendment also placed undue restrictions on the state legislatures' right to determine the means by which presidential Electors are chosen as granted by Article II of the Constitution.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

My thoughts were that to a certain degree the fourteenth amendment overrules that, without explicitly modifying it. The second paragraph of the fourteenth amendment says in part “But when the right to vote at any election for the choice of electors for President and Vice-President of the United States … is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

A more careful reading tells me that the fourteenth amendment does not affect the rights of state legislatures to determine the means of selection of Electors. After all, it says “at any election for the choice of electors”. State legislatures are still free to choose electors without holding an election. It's just that when they choose to hold an election as the means for selecting electors that they have to allow everyone eligible to vote to vote or the state loses some of its representation. The elided portion of this amendment (in my quote above) was actually worthwhile and probably necessary.

The third and fourth sections of the fourteenth amendment should probably have stood alone. Of the entire amendment, these sections seems to be the most justifiable to me. So really, my primary objections to the fourteenth amendment only apply to the first section — the one most likely to get me in trouble with liberals today. The first section of the fourteenth amendment truly needs amending. Even there, the equal protection clause is, on the whole, a good thing. Sadly, nothing in the first section seems to apply to the federal government.

Of course, just as with the seventeenth amendment, I doubt that we'll ever see changes to the fourteenth amendment during my lifetime, or even my children's lifetime. These two amendments have served to make our federal government work the way that it does today, and they are a part of what our government is today. Wishing for a return to the better part of the past isn't going to accomplish much. We have to live with the government we have today. That means that we must accept Senators that pander to the people rather than look after the interests of their state governments and we have to accept anchor babies and, sadly, the perversion of the original intent of the first amendment as a limitation on the federal government.

Probably the two largest changes between the government envisioned by the founders and the government of the United States today has to do with the expansion of the powers of the federal government, and the unchecked, unbridled power of the federal courts.

To illustrate my point about the greatly expanded powers of the federal government, consider this quote from James Madison (kindly provided by the Patriot Post)…

[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general. Charity is no part of the legislative duty of the government.

— James Madison (speech in the House of Representatives, 10 January 1794)

From this and a careful reading of the Constitution itself, it is clear that the founders intended the state governments to retain their governance over the people and that the federal government was intended to govern and protect the states. The founders wanted a limited federal government with only those powers necessary to treat with foreign nations as an equal and to unify and protect the states.

It's very clear to me that the founders did not envision a massive entitlement system woven into the very fabric of our federal government. [Update 6/8/2009: They’d be truly appalled at the massive redistribution of wealth and government takeover of private industry of today.] And yet today we have our social security system — a government mandated Ponzi scheme if there ever was one, extracting by force of law moneys from today's workers to provide retirement benefits and death and disability benefits to yesterday's workforce. The founders would never have approved of our social security system. As Madison said, “Charity is no part of the legislative duty of the government.”

As it is, the social security system is unsustainable. We've known that for decades. I cannot remember a time in my adult life when politicians and economists weren't warning of the time in the future when social security would be bankrupt. The sad thing is, they've been warning about it for decades, and people seem to have become convinced that it just isn't so. After all, we've all heard the stories about Chicken Little and the boy who cried wolf. Just because they've been warning us for so long doesn't mean it's not true though.

The myth of the social security “lockbox” is just that, a myth. Today's social security recipients are not being paid using moneys they put into the system, they're being paid with moneys that today's workers are paying into the system through payroll taxes. One modern trend is to reduce the size of your family by having fewer children. Fortunately, thanks to the big expansion in our population during the “baby boom” the birth rate hasn't been going down. It's nearly twice what it was in 1940, and hasessentially held steady since 1955, fluctuating a bit up and down, but pretty close to four million births per year over the last six decades. As long as the birth rate holds steady, we can probably be assured of a steady inflow of funds into the social security system. The problem is the outflow keeps increasing.

As more and more “baby boomers” begin to retire and draw social security, the system must pay out more and more benefits. Adding to the problem, the average life expectancy in the U.S. keeps going up. Where it once was “common knowledge” that the average life expectancy was about 70 years, it is now 78.1 years, or nearly a decade more that people will be receiving social security benefits. For women it's now 80.7 years. Paying out those benefits for an extra decade means more money is going out of the system than before.

I cannot remember the time when politicians weren't promising to “fix” social security. [Update 6/8/2009: and now they’re promising to “fix” our health care system – even though it’s not really broken.] Usually the fixes involve higher payroll taxes, or raising the cap on income for payroll taxes (that's the plan of the Democratic party's candidate for the next Presidential Election), cutting the level of benefits, or raising the retirement age. “Privatizing” social security has been touted as a “fix” for the problem, because private investments tend to do better in general than the “"fixed”" rate of return in the social security system. [Update 6/8/2009: Well, they did until our government decided to “fix” Wall Street by precipitating the housing “crisis”, and the “bail out”of the banking system.Of course, politicians object to that plan because the moneys going into the system are being used to pay current benefits. Privatizing them for future benefits simply won't work because less funds will be available to pay current benefits — or for the government to raid for the general fund. Worse still, “privatizing” social security “accounts” might actually require the government to apply real accounting principles to the system. People might actually begin to expect that the money they put into the system will be used to pay their benefits.

The real fix for the mess that the social security system is in is even less likely to be accepted than privatizing it. The plain fact of the matter is that the federal government has no business being in the retirement account business in the first place. Our founders didn't want government to be running entitlement programs. Our founders didn't provide any authorization for such a program in the Constitution. Oh, I'm sure that the words “general Welfare of the United States” in the first paragraph of Article 1 Section 8 might be interpreted to provide such an authorization, but it's clear from the words of Madison and others that that's not what the founders meant by that.

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.

— James Madison (Letter to Edmund Pendleton - 1792)

No, the real fix for the mess that our social security system is in is to abolish it entirely. It's unconstitutional, it's a violation of the founders intent, and it infringes upon states' rights. States' rights? “What the hell are you talking about?” I hear you asking. Well, how about the tenth amendment to the Constitution. You know the one I'm talking about surely…

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

That plainly says, at least to me, that since there is no authorization in the federal Constitution for the Congress to implement a social security system of the type we currently have, and there is no prohibition in the federal Constitution on the states implementing such a plan that only the states have the authority to implement such a “social safety net.” The states after all were intended to govern the people, not the federal government.

“The state governments have a full superintendence and control over the immense mass of local interests of their respective states, which connect themselves with the feelings, the affections, the municipal institutions, and the internal arrangements of the whole population. They possess, too, the immediate administration of justice in all cases, civil and criminal, which concern the property, personal rights, and peaceful pursuits of their own citizens.”

— Joseph Story (Commentaries on the Constitution, 1833)

It's plain that a great many people in our nation are dependent upon social security. No politician in his (or her) right mind is going to suggest abolishing the program now. It's a reality and a fact of American life. It's also broken and prevents our government from spending its money on its real obligations. Not to mention the fact that it's only one example of many ways our federal government has usurped powers that belong to the states, done so poorly and polluted the vision of our founders. The Medicare system comes to mind as another example of such a program, as does the federal government's meddling in education — possibly the one example of federal overreaching that is even acknowledged by a federal entity (the National Archives).

Q. Where, in the Constitution, is there mention of education?
A. There is none; education is a matter reserved for the States.

All of this comes from a deliberate misinterpretation of the words “and general Welfare of the United States” in Article I, section 8, paragraph 1. No Democrat and no Republican politician today would dream of changing these things — of returning our federal government to the form envisioned by our founders, or of returning it to compliance with the plain meaning of the Constitution. The people wouldn't allow it. Too many of them are dependent upon the federal government in one way or another, or hope someday to be so. And that's truly sad.

As our federal government grows in power, exceeding its authority and assuming ever more control over the lives of the citizens of the many United States of America it is aided and abetted by the first of the three branches of government envisioned by the founders to exceed its constitutionally defined role — the courts. This is largely because of a flaw in the Constitution that was recognized early on by the Anti-Federalists and dismissed by the Federalists.

During the drafting of the Constitution, much vigorous debate centered around the powers that the government should have. The debate focused initially upon the powers of the executive and upon the makeup of the legislature. The system as it was ultimately established limited the powers of the President, giving Congress the ultimate power over his election, and the ability to vet his decisions. The President was given the power to appoint ambassadors and cabinet officers, but Congress (via the Senate) was given the power of refusal. The President was given the power to veto legislation, but Congress was given the ability to override that veto. The Legislature was divided into two houses, a “peoples” house (the House of Representatives) and a states house (the Senate). This compromise thwarted the will of some of the founders to have the legislature solely represent the people and thus grant more power to the larger states, and thwarted the will of others to ensure that each state had equal representation regardless of population. Congress was granted the power of impeachment to remove any and all officers of the United States federal government, and each house was given the ability to discipline its own members. Congress was also granted the power to determine the makeup of the federal courts, the hierarchy of the federal courts, and even to limit their jurisdiction. This is the system of “checks and balances” that was designed to prevent any branch of the government from assuming a role that did not belong to it.

Much has been said about the system of checks and balances. There is a general perception that we have three co-equal branches of government, and some of the founders even stated that it was so. A reading of the Constitution though doesn't give me that impression. It's plain to me that the founders (at least the ones that prevailed) intended for Congress to be the premier branch of the federal government. As the direct elected representatives of the people and the states it is natural and just that Congress ought to by right be the premier branch of the government. The presidency is in many ways subordinate to the Congress, charged with executing the laws that the Congress enacts, and subject in many ways to Congressional oversight. Not being directly chosen by the people or the states, the president can't truly speak for them. The courts ultimately were intended by a plain reading of the Constitution, and by the words of the founders themselves to have an even more limited role.

Far less is said in the Constitution about the federal courts than about either the Presidency or the Legislature. Nothing whatsoever is said in the Constitution about a check on the decisions of the courts. Their jurisdiction may be limited by Congress, but if they exceed that jurisdiction there is no remedy described. Justices of the Supreme Court are appointed to indefinite terms and hold their offices “during good Behaviour,” a nebulous term that in practice means until they choose to step down. This is where the founders failed in my estimation, and ultimately paved the way for the most profound change in the federal government of all.

To begin with, the founders recognized, and the federalists asserted that it was fundamentally important that the power of judgement had to be separate from the executive power. After all, it's not good for someone to be “judge, jury, and executioner” together with being the arresting officer. That may have worked in the movies for Judge Dredd, but it's really a system of injustice, not of justice. The federalists also asserted that the power of judgment had to be separate from the legislative branch. It simply wouldn't do to make law on the fly while trying a case (as our courts appear to do these days).

“there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

— Federalist No. 78.

Unfortunately, as I described earlier, the Constitution didn't say enough about the Judiciary. The failure of the founders to establish sufficient checks on the Judiciary resulted in judicial oligarchy. Today our courts make law from the bench, substituting the policy preferences of judges and “justices” for the laws enacted by the legislature. They have usurped the power of the legislature by claiming for themselves the power to “construe the laws according to the spirit of the Constitution.” The anti-federalists warned of this.

…The supreme court under this constitution would be exalted above all other power in the government, and subject to no control…

…The judges are supreme and no law, explanatory of the constitution, will be binding on them.

— Antifederalist No. 78 - 79

Sadly, the anti-federalists were right but the federalists dismissed their arguments. The Constitution doesn't grant the courts the power to legislate and it doesn't grant the courts the power to invalidate legislation. Perhaps tiredness after the long struggle to hammer out the many compromises necessary to craft our Constitution had crept in, but the federalists were wrong. They asserted…

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.

— Federalist No. 81

The problem with that of course is that there was not a syllable in the plan under consideration that directly prohibited the national courts from doing that very thing. The founders were very careful to limit the powers of Congress. They were very careful to limit the powers of the President. They were not so careful to limit the powers of the judiciary. It didn't take long for the judiciary to assume powers that weren't “directly” authorized to them under the Constitution.

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

— Chief Justice John Marshall

This was a plain usurpation of the legislative power. Under our Constitution it is emphatically the province and duty of the Congress to say what the law is. After all, it's the Congress that is empowered to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Article I Section 8 of the constitution does NOT say that “The Courts shall have the power to make all laws.”

The anti-federalists were right, there is no check upon the power of the courts. But what about Congress' power to limit the court's jurisdiction? The courts routinely ignore it and other matters of jurisdiction.

…the Court's intervention in this military matter is entirely ultra vires.
— Justice Antonin Scalia (Dissenting in Boumediene v. United States)

Ultra Vires? That's Latin and translates as “Beyond the powers.” The term is from corporate law, but the essential idea is that the court is acting beyond its authority and its intervention in the matter is illegal.

What about Congress' other, ultimate power over the courts? The power of impeachment? I have to ask the question “what good is it?”. As some of my liberal readers were fond of telling me when I took note of Nancy Pelosi's blatant disregard of the Logan Act, “a law that isn't enforced might as well not be a law at all” (they didn't comment with those statements, but they did speak to me about it, some via email). In this case, a power that isn't used might as well not be a power at all.

Seldom is a judge impeached, at the federal level or even at the state level. It takes something truly egregious to result in the impeachment of a judge. [Update: Even then, it doesn’t appear to disqualify the impeached from serving in the Congress.] In the state of Washington, even a DUI isn't enough to result in the impeachment of a judge. It's so rare that the last time it happened was in 1989, when Alcee Hastings was impeached and removed from office, and he was only the sixth judge to be removed from office by the United States Senate in this way. It has been nearly twenty years since a judge was successfully impeached. Who knows? Perhaps the judiciary isn't completely immune. The House is considering another impeachment even as I write this.

Today's federal government has far exceeded the visions of our founders. In part it has done so through politicians simply ignoring those visions and pandering to the weaknesses of the people. In part it has done so by slowly evolving toward a mobocracy rather than a limited federal republic. In part it has done so with the willing acquiescence of the states, giving up their power and authority because of internal strife and faction. In part it has done so through the power play between the various branches, with the courts seeking supremacy over all as Justice Scalia said in Boumediene… “What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy.”

Of course, this too is unlikely to change. Our politicians and special interests love to use the courts to enact laws that simply wouldn't get past the political branches of the government. Where the people have expressed their will and it goes contrary to the interests of a particular group of lawsuits seem to be the way to enact policy preferences that are otherwise unacceptable to the people. This doesn't just happen at the federal level, although it may ultimately reach that level. The California supreme court recently overturned the will of 61% of the people of California, in a move that may eventually substitute the will of four judges for the will of the entire American people. If you can't get the majority of the people to agree with you, it seems that a lawsuit is the way to go. [Update: It took a constitutional amendment to reign in the California supreme court, and even that was nearly not enough.]

You'd think that with opinions like this I might simply give up hope. Not so. Despite the fact that our government has evolved in ways that it was never intended to, and despite the fact that no politician will do anything serious to reverse the trend (who wants to give up power once attained after all), our nation is STILL the land of the free and the home of the brave. Our nation is still the BEST place to live on God's green Earth. Our liberties are still ensured by our Constitution and there are still people bent on preserving them. Returning to the founders vision might be a bit of a shock, but someday it just might happen. Unsustainable bloat in the federal bureaucracy will eventually see to that when the entitlement programs we've burdened ourselves with collapse under their own weight — just as all Ponzi schemes eventually do.


[Update 6/8/2009: Things really haven't changed since last year except as a matter of degree. As I said a few days ago, much of what we think is true about our country no longer is. Our republic has been replaced by a Judicial Oligarchy and an unaccountable bureaucracy. Meanwhile the media tries to distract us by telling us how “like a god” our current socialist President is.

A former co-worker of mine once asked me “how does it affect you personally.” I was at a loss to explain it then. It should be much more obvious how it affects us all now. If you hold stock in G.M. or Chrysler, wait a couple of months. When that paper becomes less than worthless you too will see how it affects us all personally.

I used to worry about sounding like an alarmist. The story of the boy who cried wolf was stuck too well in my head. Sadly, we let the wolf in the front door long ago, and now very few believe it.

Our national debt will continue to rise. We've gone from a recession to what very well could be a depression, and liberals will say that it's all “Bush's fault.” We throw good money stolen from the productive among us after bad, and as G.M. has so aptly demonstrated, it does nothing to fix the real problems in our economy.

No, conservatives haven’t been “crying wolf.” We’ve been warning about the coming disaster for decades. The fact that we haven’t completely collapsed isn’t because of those warnings though. Rather it’s because the gift that we inherited was so robust in the first place that what looks like a concerted effort to tear it down has only slowly been able to erode our liberties and our bounty. The way things are going though, it will eventually be destroyed, unless we do something to turn it around soon.

The eventual collapse isn’t something I want to see. And I don’t want my children to see it either. But it will come… unless we do something to change it.]

United States
| Volume 4, Issue 5 – June 8, 2009



War Crimes Prosecution Watch is prepared by the International Justice Practice of the Public International Law & Policy Group and the Frederick K. Cox International Law Center of Case Western Reserve University School of Law.


The Associated Press: Tunisia Will Accept 10 Citizens Held in Guantanamo

The Washington Post: Europe Objects Anew to Detainees

Agence France-Presse: Afghanistan Demands Return of Guantanamo Prisoner

Associated Press: New Legal Battle in Guantanamo

Reuters: U.S. Judge: Guantanamo Evidence Must be Made Public

The New York Times: Officials Report Suicide of Guantanamo Detainee


Rachel Maddow: Right-Wing Terrorism Must Be Stopped

By Rachel MaddowMSNBC. Posted June 8, 2009.


The tactics of anti-choice extremists are designed to change policy by terrorizing Americans. How do we stop them from committing violent acts?

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How the FBI Could Have Prevented Dr. Tiller's Death

Editor's Note: The following is an edited version of a transcript from the Rachel Maddow Show.

We begin tonight with another deadly act of domestic terrorism. The first time a doctor was murdered by the modern anti-abortion terrorist movement in America was March 1993.  Anti-abortion demonstrators were protesting at a clinic in Pensacola, Florida.  As Dr. David Gunn arrived at a clinic, a young man named Michael Griffin shot Dr. Gunn several times in the chest with a snub-nose .38 revolver.

Michael Griffin, the killer, became a cause celebre among anti-abortion extremists.  He was associated with the group called Rescue America, which said after Griffin killed Dr. Gunn that while they did not condone the killing, they didn‘t condemn it either.

Five months after Dr. David Gunn was killed, another doctor, George Tiller—yes, the same Dr. Tiller from today‘s headlines—was shot by a woman named Shelly Shannon.  Shannon had written letters of support for Michael Griffin, who killed Dr. David Gunn.  She called him a hero.

In 1992 and 1993, Shelly Shannon set fires and used acid to attack at least 10 abortion clinics in Oregon, California, Idaho and Nevada.  In 1993, she went to Wichita, Kansas, and used a semiautomatic pistol to shoot Dr. George Tiller in each of his arms outside the clinic at which he worked.

While she was in prison, Ms. Shannon signed on to a pledge of support for Paul Hill, the murderer of yet another American doctor.  In June 1994, Paul Hill shot to death Dr. George Britton and a 74-year-old clinic escort named James Barrett, and he seriously wounded Mr. Barrett‘s wife.

Six months later, a man named John Salvi walked into two clinics in Brookline, Massachusetts, and killed two receptionists and wounded five other people.  In January 1998, yet another murder—security guard Robert Sanderson was killed and a nurse named Emily Lyons was critically injured by a nail bomb that exploded at an Alabama abortion clinic at which they worked.  That bomb was planted by a man named Eric Rudolph.

Eric Rudolph had also bombed another abortion clinic and a gay bar in Atlanta the year before and he had famously bombed the Atlanta Olympics the year before that, killing Alice Hawthorne and wounding 111 other people.  The Atlanta Olympics bombing was a terrorist act committed by an anti-abortion extremist.

In October 1998, another murder—in Amherst, New York, Dr. Barnett Slepian was standing inside his house when James Kopp shot and killed him with a sniper rifle.  Kopp was a member of an anti-abortion extremist group that calls itself the Lambs of Christ.

And [last Sunday], George Tiller was shot again.  This time, it was inside his church in Wichita.  He was killed instantly.  A man named Scott Roeder is the suspect in custody in this case.  He‘s known in extremist anti-abortion circles.  He has had writings published in a newsletter called “Prayer and Action News,” which promotes the idea of killing people who provide abortion services as justifiable homicide.

Someone calling himself Scott Roeder had participated in anti-abortion discussion at a Web site of the group called Operation Rescue.  The group‘s founder, Randal Terry, spoke at the National Press Club today and celebrated Dr. George Tiller‘s death.

RANDALL TERRY, FOUNDER, OPERATION RESCUE:  I stand before you today saying about George Tiller what I said in his life.  He was a mass murderer.  George Tiller was a mass murderer.  He killed tens of thousands of innocent human beings at his own hand.  George Tiller was a murderer and he was doing something that was literally demonic.

RACHEL MADDOW:  Another anti-abortion extremist group, Operation Save America, also put out a statement celebrating George Tiller‘s murder today, saying, quote, “He is now vowing before Jesus and confessing that Jesus is right and that he, George Tiller, was wrong.”

If you go to the Web site of the Army of God, you will find hagiographic websites for anti-abortion terrorist movement heroes, like Paul Hill and Eric Rudolph and Shelly Shannon.  You can actually scroll through pages and pages of mug shots and descriptions of bombings and shootings and murders and attempted murders—all praising the perpetrators, and even suggesting ways to get away with the same types of crimes that these people committed but you could do it without getting caught.

On their front page today—there‘s Dr. George Tiller, just murdered, under the caption, “The lives of innocent babies scheduled to be murdered by George Tiller are spared by the action of American hero, Scott Roeder.”

There‘s an anti-abortion terrorist movement in the United States that operates relatively openly.  They advocate and their members commit acts of violence, including murder, against Americans who are not breaking the law, who are engaged in protected legal activity on American soil.

These acts of violence are politically motivated.  They are designed to change American policies and to terrorize Americans.  They have succeed in making providing abortion services to American women so dangerous, so intimidating that there are only a handful of doctors in the entire country who provide late-term abortions—as Dr. Tiller did—abortions late in pregnancy.

In other words, this terrorism is working.  Violence as a political strategy is working to make abortions so unsafe for doctors that they are unwilling to bear the risk of performing it so women can‘t actually get one regardless of whether or not it‘s legal.  It‘s the same outcome as if abortion had been outlawed.  They‘re winning.

What‘s the strategy to stop them?

Joining us now is Jonathan Turley, professor of constitutional law at George Washington University.

Professor Turley, thanks for joining us tonight.


MADDOW:  I‘m making these observations politically just as a citizen, but I wanted to ask you tonight if it‘s legally appropriate, legally useful, to approach this problem as terrorism?

TURLEY:  Well, in some cases, it is.  You know, some of these past cases have elements of terrorism.  Rudolph is a good example of that—although, you know, he was not just anti-abortion, he was anti-homosexual.  He was sort of at war with the world.  And that makes this definition a little more difficult.

Some of us, particularly on the civil libertarian side, are uncomfortable with using the terrorism label because, you know, the Bush administration expanded this definition to the breaking point.  I testified not long ago in Congress of how the Bush administration would classify what were rudimentary criminal cases as terrorism cases and use these laws against them.

The problem we have, as you know, is to deal with lone actors like this.  I don‘t believe that the man who killed Dr. Tiller was a classic terrorist.  I think that he was a murderer.  He assassinated him.

But I don‘t see the elements of an organized terrorist plot.  And in many ways, he‘s the most dangerous thing that we face.

I think the Clinton administration got this right when they really saw the danger as the McVeigh type—this lone actor who goes out there, who may be fueled by rhetoric, but who‘s acting alone.  In this case, it looks like he targeted this very doctor who had been demonized by many.

MADDOW:  To the extent that there is a movement that this man saw himself as part of, and I spent a lot of time in very dark corners of the Web today looking at the websites and publications ...


MADDOW:  ... of the organizations that identify themselves as part of this movement.  Famously in the 1990s, there was a statement put out in support of one of the people who was found guilty of killing an abortion provider, saying, “We, the undersigned, believe these actions to be justifiable” and encourage others to do them because—in order to save the unborn.

To the extent that there is something beyond the loner, the lone murderer here, to the extent that there is a rhetorical association, there are organizations that support this sort of thing, does it give law enforcement any additional tools to consider them while they prosecute this crime?  I‘m with you on the civil libertarian concerns about these things -- freedom of association, freedom of the press are to be protected, freedom of speech are to be protected at any cost -- but are there law enforcement tools that would be useful in these cases to acknowledge those ties?

TURLEY:  There are, Rachel.  I mean, you have the FACE Act, which protects access to abortion clinics.  There have been prosecutions under that.  It was upheld by courts.  And you also have standard prosecutions for intimidation.  In fact, the FACE Act has intimidation as one of the elements.

So, there are ways to prosecute.  The FBI‘s done a very, very good job, you know, for many years now at focusing on these domestic organizations.  But as you‘ve already noticed or referenced, we have this difficult line to walk between free speech and preventive law enforcement.  And it all—that line is often found on violent speech.

And the Supreme Court said in the Brandenburg case that violent speech is protected.  In fact, I‘ve represented people accused of violent speech, including terroristic speech.  And that is a very difficult line, because it is, in fact, protected, to say all abortion doctors should be killed.  And what the Supreme Court said was that we have to look where that violent speech raises an imminent threat of violence, and then, you can prosecute that person.

But it‘s obviously a very difficult line to walk.

MADDOW:  And it‘s an intelligence matter, oddly, as well.  We think of intelligence in terms of where our—in terms of where the dividing lines are within our own government about the tools that are available to people who work for the U.S. government.  That‘s an important distinction between the Central Intelligence Agency and the Federal Bureau of Investigation, for example.

We collect intelligence on foreign bodies.  In terms of what we do domestically to disrupt homegrown terrorist plots, to disrupt criminal enterprises, to break up organized crime in these efforts, there‘s—I mean, there‘s civil liberties concerns, there‘s also strategic concerns about how these things can be done legally on American soil.

TURLEY:  Yes, but I would also caution though is that no matter what we do—we‘re probably never going to be able to stop the lone actor, the McVeigh, or the individual today, without becoming a totalitarian regime.  I mean, lone actors are dangerous because they don‘t come up on the radar screen.

What we‘ve learned—ever since cases like Brandenburg—is speech isn‘t the problem.  In fact, you want them to speak.  You want the speech to be protected so they come up on the radar screen and you can watch them.  And the FBI has a long history and a very effective history and a commendable history of following these dangerous groups.

But we can‘t do what we‘ve done in the past and say, “Because there was an attack, our system must not be working.”  I think we have to accept that, unfortunately, we‘re not going to be able to protect against all attacks.  And this guy represents the greatest vulnerability in the law and in terms of law enforcement.

The guy who‘s out there, you know, some dark corner, filled with hate, against the world, and he takes it upon himself to personify it into one person—we may not be able to stop that.  And efforts to try to stop that, I think, are going to likely be fruitless.

But the reason I appreciate what you‘re saying is that you‘re very mindful that we walk this careful line ...


TURLEY:  ... in protecting speech and looking for that speech that presents imminent threats.

MADDOW:  And looking for the—yes, exactly, protecting our constitutional values, protecting the reason that it matters that we have an America, as opposed to any other country, but also taking these threats to security seriously.  It‘s what we‘ve been talking about in all of these different contexts for eight years now.

Constitutional law professor, Jonathan Turley, thank you so much for your time tonight. It‘s really helpful.

TURLEY:  Thank you, Rachel.

MADDOW:  In the context of an extremist anti-abortion movement that has seen the murder of seven abortion providers and clinic workers in a five-year period during the course of the ‘90s, that saw another doctor shot by a sniper in his own home in the late ‘90s, a movement that publicly, openly celebrates the people who have killed these doctors as heroes—what should we make of it when figures in the media denounce other doctors already targeted by these groups as Nazis, as killers, as people with blood on their hands?

Back in April, the Department of Homeland Security was lambasted by conservatives for publishing a report on the potential for violence from right-wing extremist groups.  It was the Bush administration that had actually commissioned the report and they had done one on the potential for violence from left-wing groups, too, but that did not stop conservatives from getting very, very angry about that report.

At least three Republican members of Congress, Michele Bachmann, John Carter, and Michael Burgess said that Homeland Security Secretary Janet Napolitano should resign for having issued that report.  Republican Minority Leader John Boehner said that report meant that Napolitano had an awful lot of explaining to do.

That report actually warned for the potential for violent behavior from far right-wing groups and individuals that are dedicated to a single issue, such as opposition to abortion.  DHS got even more specific in March, warning about, quote, “antiabortion extremism” groups and “sovereign citizen movement” such as a group called the “Freemen.”

We know now the man who is the chief suspect in the killing of Dr.  George Tiller was reportedly associated both, with extremist anti-abortion groups and with the sovereign citizen movement known as the Freemen.

Still think Janet Napolitano ought to resign for that outrageous warning about guys like Scott Roeder?


BILL O‘REILLY, FOX NEWS HOST:  Tiller the baby killer out in Kansas, acquitted—acquitted today of murdering babies.  I wanted George Tiller, Tiller the baby killer, going—hey, I can‘t make more money killing babies now.  Tiller the baby killer.  As “The Factor” has been reporting, this man will terminate fetuses at anytime for $5,000.

UNIDENTIFIED MALE:  What do you think about Dr. George Tiller?

KATHLEEN SEBELIUS, HEALTH AND HUMAN SERVICES SECRETARY:  I don‘t think anything about Dr. George Tiller.

O‘REILLY:  She doesn‘t seem to be real upset about this guy operating a death mill.


MADDOW:  Death mill.  That was FOX News host, Bill O‘Reilly then. 

During the life of George Tiller, for four years, he repeatedly accused Dr.  Tiller of murder, of infanticide.  He publicly compared him to everything, from Nazis, to pedophiles, to al Qaeda.  He described him as having blood on his hands.

Now that Dr. Tiller has been murdered inside his own church, here is Mr. O‘Reilly tonight.


O‘REILLY:  Anarchy and vigilantism will ensure the collapse of any society.  Once the rule of law breaks down, a country is finished.  Thus, clear-thinking Americans should condemn the murder of late-term abortionist, Tiller.  Even though the man terminated thousands of pregnancies, what he did is within Kansas law.

The 67-year-old Tiller had performed abortions for more than 35 years.  “The Washington Times” estimates he destroyed about 60,000 fetuses.  Very few American doctors will perform the operation.  None of that seemed to matter to Tiller, nicknamed “the baby killer” by pro-life groups, who stated he was helping women—Tiller stated that.

I report honesty.  Every single thing we said about Tiller was true.  My analysis was based on those facts.  It is clear that the far left is exploiting—exploiting, the death of the doctor.  Those vicious individuals want to stifle any criticism of people like Tiller.  That and hating FOX News is the real agenda here.

Finally if these people were so compassionate, so very compassionate, so concerned for the rights and welfare of others, maybe they might have written something, one thing, about the 60,000 fetuses who will never become American citizens.


MADDOW:  Do you think he‘s sorry that Dr. Tiller is dead?

Mr. O‘Reilly went on to claim he never tried to incite anything, he was just reporting.

Joining us now is Frank Schaeffer, who grew up in the religious far right, who made a documentary anti-abortion film series in the 1970s, and whose latest book is titled, “Crazy for God: How I Grew Up as One of the Elects, Helped Found the Religious Right, and Lived to Take All or Almost All of It Back.”

Mr. Schaeffer, thank you very much for your time tonight.

FRANK SCHAEFFER, AUTHOR, “CRAZY FOR GOD”:  Thank you for having me on, Rachel.

MADDOW:  Writing at “Huffington Post,” you apologized, as a former member of the religious right, for what happened to Dr. Tiller.  Why did you feel the need to apologize?

SCHAEFFER:  Well, words have consequences.

And what we did in the ‘70s and ‘80s, my father, Dr. Francis Schaeffer, Dr. C. Everett Koop, who became Reagan surgeon general, members of the Republican Party who worked with us to make abortion part of the Republican agenda, the Roman Catholic allies that we had in the church, various people—we talked and our talk got more and more extreme, and less and less democratic.  Until, finally, my dad actually went so far as to write a book called “A Christian Manifesto,” where he said the use of force to change Roe v. Wade and roll back the law legalizing abortion would be legitimate and he compared Roe and the American government to Hitler‘s Germany in the 1930s.

And when you look at what happened to Dr. Tiller, there‘s a direct line connecting the rhetoric that I was part of as a young man and this murder.  And so, people, like me, are responsible for what we said and what we did and the way we raised the temperature on this debate out of all bounds.  And so, when O‘Reilly talks about the fact that these people of the far left are against FOX or against him or trying to muzzle the debate, he‘s telling a lie.

I am not a member of the far right—until I voted for Barack Obama in the last election, I am lifelong Republican.  I am still pro-life.  I also believe abortion should be legal, but I agree with Barack Obama when he says we ought to find ways to help women, help children, give contraceptives, sex education, to lessen the number of abortions.  I think abortion is a tragedy.

But I also think that pretending that you can call abortion murder and Tiller the baby killer, et cetera, et cetera, et cetera—and that these worlds don‘ words don‘t have an impact, is crazy.

So, this is what helps unhinge a society, talking like this.  And I was part of that, and that‘s why I apologize—and I would apologize again I am sorry for what I did.

And I think that people who say extreme things should stand up and take the consequences and admit when they were wrong.  And in this case, we were wrong.  We were wrong more really.  We were wrong politically.

And as a believing Christian, I was wrong in terms of someone who says he follows Jesus Christ.

MADDOW:  There are a lot of people in this country, obviously, who are part of the pro-life movement, the legal pro-life movement, and who hold pro-life views and who seek to change the laws of this country about abortion.  There‘s obviously what I consider to be a terrorist movement who believes not that the laws should be changed but that the laws should—but that people who are legally engaged in providing abortion services are legitimately targets of violence that they should be intimidated, harassed and in some cases killed.

Those two movements are not the same thing.  And it‘s important to me as an American that people who are pro-life feel that they can safely articulate those views and that they are not being attacked for what extremists have done.


MADDOW:  But I also don‘t want to excuse anybody who incites violence, or who, I guess, makes excuses for the violent wing of this movement, that has two very different wings.  How do you see the connection there?

SCHAEFFER:  Well, you know, the book you mentioned earlier, “Crazy for God,” has a number of chapters talking about the way we took the movement from its early stages when it was more a moral concern, not so much about politics and not so much about changing the law, and radicalized that movement.  I follow the step by step process.  Secret meetings with Pat Robertson down at the 700 Club, Jerry Falwell sending his jet up to me to bring me down to his church to speak a couple of times.

And what we did is we talked one game to the large public and we talked another game amongst ourselves.  And amongst ourselves, we were very radical.  And I don‘t think it takes much imagination to guess that, tonight, there are people who are publicly saying, “This is terrible, we never advocated killing, abortion is murder, but we didn‘t mean people to take us this seriously.”  But in private, you know, if these folks popped champion bottles, they would be drinking a toast to this murder tonight.

I know that this is the case because of the fact that I was part of the movement, but also understood very well what we were doing back then was to attack the political issue when we talked to people like Ronald Reagan and the Bush family and Jack Kemp—the late Jack Kemp that we were very close to in all this.  But on a private side, we also were egging people on to first pick at abortion clinics, then chain themselves to fences, then go to jail.

We knew full well that in a country that had seen the assassination of Dr. Martin Luther king, two Kennedy brothers and others, that what we were also doing was opening a gate here.  And I think there‘s no way to duck this.  We live in a country in which guns are all over the place.  We have plenty of people with a screw loose, plenty of people on the edge.  It only takes one.

And what scare me is that I see the rhetoric of the Republican Party right now—including the former vice president—about our newly elected African-American president has the same sort of coded stuff in it.  He‘s not a real American.  He‘s making America less safe.  He‘s a secret Muslim.  Some Christians in the same groups that are pro-life groups are running around saying he‘s the anti-Christ.

They also know full well that we have people out there who will take it to the next step and say, “Well, gee, if he‘s the anti-Christ, if he‘s anti-American, if he‘s a communist, maybe the best thing we can do is pull another trigger some other day.”

We live in a country where people get killed for their views sometimes.  We‘re a very divided nation coming out of this culture war.

It is irresponsible for people to make these wild statements—like Bill O‘Reilly does—and then step back after it happens and say, “Oh, I never meant that.”  Yes, they did mean it.  They meant exactly what they said.

And when you start calling people those sorts of names—the way I did back in the ‘70s and the early ‘80s—for which I am apologizing today, not just because of this but other incidents like this, if people don‘t stand up and actually take back these words, take back these angry word, they are still culpable for the next event that happens.  And we need to be able to just call it what it is.

MADDOW:  Frank Schaeffer is author of the book, “Crazy for God: How I Grew Up as One of the Elects, Helped Found the Religious Right, and Lived to Take All or Almost All of It Back”—Mr. Schaeffer, it‘s just bracing testimony from you tonight.  Thanks for—thanks for being here on the show.

SCHAEFFER:  Thanks for having me on.

Copyright 2009 MSNBC

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