We the Cared For

Enemy Combatants and Habeas Corpus

On June 12, 2008, the Supreme Court ruled in a 5-4 majority in the case of Boumediene v. Bush. The case centers on whether the right of habeas corpus guaranteed U.S citizens by the constitution, extends to prisoners held on non-U.S. soil; in this case the Guantanamo Bay, Cuba (GITMO) detention facilities.

The court found that this right does extend to these people, even though they were captured and are detained on foreign soil by the U.S. government.

Habeas Corpus

This is also the “writ” of Habeas Corpus which gives a detained person the right to pursue legal relief in the case of an unlawful detention. This right also extends to include another person, acting on the detained persons behalf, to seek review.

Article I, Section 9 of the Constitution

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.”

This decision follows on the two year heels of the June 29, 2006 Supreme Court ruling that these prisoners were also entitled to the rights of the Geneva Convention which the Executive branch had also sought to deprive them of.

These rulings which are reigning in the excessive powers assumed by the Executive branch are being assailed vigorously as impeding our countries ability to fight the war on terror. As an example, here is a lift from  a fairly influential newsletter from the conservative side:

“ Do you believe foreign terrorists should be treated as American citizens?  Should they have the same rights as American citizens?
Well, according to five justices of the United States Supreme Court, the answer is an emphatic YES!
Recently, in Boumediene v. Bush, five justices ruled that suspected terrorists captured in foreign lands -- potential bombers and assassins who've never set foot on United States soil -- have to be tried in an American civilian court WITH ALL THE RIGHTS GUARANTEED TO UNITED STATES CITIZENS UNDER OUR CONSTITUTION! “

Rather than debating the finer legal points, it seems that the issue comes down to more fundamental beliefs about our treatment of people and their protections from the potentially abusive power of governments.

This of course does not extend to people we know are trying to kill us. They should be killed in the theatre of war and dealt with as severely as our laws allows upon capture.

But “known to kill us” and those “we think are trying to kill us” are two different things.

If individuals are detained under “we think are trying to kill us”, without legal redress, we may have detained and taken away the life and liberties of innocent people regardless of their country of citizenship and what part of land they occupy.

If you believe that wrongful detention won’t happen and/or that the military (military tribunals) and the U.S. government are always right in their conclusions, evidence would suggest otherwise.

You don’t have to go on a very extensive search to find case after case of our own citizens, tried, convicted and incarcerated for years, that were eventually found innocent as new facts come to light or evolving sciences are applied such as DNA testing. If we put ourselves in these wrongfully convicted people’s shoes, these innocent people who lose everything, it would seem that we would want to err on the side of the utmost caution in taking away a person’s liberty, family and life regardless of nationality. A shining example is the case of a fellow by the name of Mehdi Ghezali who was released from GITMO “detention” after two and half years without ever being charged.

There is also an important difference in our War on Terror. This is not a war of nations where uniformed soldiers fight on each side of the battlefield. It is not a war that will have an end date where we can detain known “soldiers” and return them at the end of the conflict knowing that with the battle won they will go home to peacetime never to fight us again.

This war is more akin to our Drug War, where there is no end in sight. We can anticipate the War on Terror to continue through the generations. It is a war where detention may easily be for life if review is forbidden during this permanent “suspension”.

The other case made by people opposing the decision is that these people will have access to our court systems and use U.S. taxpayer resources to game the system. Many of these same people are proponents of clogging our court systems and prisons with people who have hurt no one but have some amount of marijuana in their possession. Over a million divorce filings are made each year. It seems that if we can support these efforts in our court systems, we certainly have the ability to review whether some number of the 500-700 detainees have been wrongfully stripped of their freedom.

In their SECOND REPORT ON THE GUANTANAMO DETAINEES on March 20, 2006, Professor Mark P. Denbeaux of the Seton Hall University of Law, in conjunction with other authors, provides an excellent review of the issues on the 517 detainees held at GITMO at the time. Two very important statistics should send up the flare:

• Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.
• Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.

Again the issue is not to try and tie the hands of those protecting our country.

We stand proudly as a Nation on our beliefs in the rights of individuals, in freedom, fairness and protecting the individual from overreaching government power and its potential abuses.

We are a great country because of these beliefs and the laws that protect them.

We need to exercise great care in protecting these basic rights for every individual within control of our boundaries, whether the boundaries we’ve defined are on our soil or elsewhere and that we “walk our talk”.

The Supreme Court got it right!   

Fear and Freedom

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Benjamin Franklin

What will fear make you do?

If I can induce fear in you, I can get you to react.
If I can get you to react more, you will think less.
If I can get you to think less, then I can gain control of you.
If I can get more control of you, you become weaker.
If you become weaker, you look to me for protection.
If you look to me for protection, you will do what I tell you.
If you do what I tell you out of fear, you have lost your courage.
If you have lost your courage, you will lose your freedom.

The 4th Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Through fear we have lost the courage to fight to keep our hard won, constitutionally protected freedoms and have given up control to those who make us afraid.

In our fear, we have forgotten what it means to be brave and fight for our rights like so many brave people who came before us.

Imagine if our Founders had been so fearful of British power that they failed to act as “traitors to the crown”. Imagine that these men, fearing for their very lives, conformed to the “tyrannies” of the British government. Imagine that they had not lived, seen and learned about the eventual abuses of government power and created a system of government with checks and balances meant to preserve the Constitution.

Too frequently we fail to realize the personal liberties we have let slip through our fingers, and continue to surrender, as our fear consumes our sense of right and wrong.

The latest Warrantless Wiretapping legislation moving through Congress in H.R. 6304 “to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes” at the behest of the administration  is just such a “tyranny”.  And we the people sit idly by as another hole is being punched through the Constitution and our fundamental rights to privacy because we are afraid.

We are told we should be afraid because of 9/11 and even more fearful because of all the things that we don’t know that go on in secret and behind the scenes known only to our “protectors”.

Our protectors tell us that the reason we haven’t had another terrorist attack is directly related to the freedom we have relinquished. According to those in power, they can only protect us by further limiting our freedom.

Eight years passed between the 1st bombing of the World Trade Center and the horrid events of 9/11/2001. These 8 years passed without the permanent, wanton destruction of our rights in the name of security.

What makes anyone think that this 7 year pause is related to the unconstitutional powers we keep handing over? Even if it were some small part of the reason can we not expect our protectors to defend our rights as vigorously as they defend our country?

What is it we are protecting anyway? We are defending our physical beings as well as our way of life. So many patriots of our country have given their physical lives to defend our way of life, as defined and protected by the Bill of Rights and our Constitution, that it’s evisceration should be a clear sign that we need new “protectors”.

Today instead of protecting these hard won freedoms through civil discourse and the political process, we have let our fear overcomes our senses.

I struggle to think of an extended period of time when our country hasn’t had reason to be afraid. The fears of the people during the Revolutionary War, the Civil War, World War I, World War II, the Korean War, Vietnam, the Cold War and nuclear proliferation and now the War on Terror.

We let our fear after the attack on Pearl Harbor strip some 120,000 Japanese people of their freedoms and not one, not ONE of these people was ever convicted of spying or sabotage. The McCarthy hearings and our fear of communism ruined more than few innocent citizens good names. But apparently, it’s ok to break our laws in these situations because we allow our protectors to wield unlawful power so that they make us less fearful. 

In our fear this time around, the administration has seized the moment to take illegal powers into the Executive Branch. We find ourselves condoning the use of torture with arguments harkening back to former President Clintons arguments about his definition of “sexual relations”, arresting people without charges, detaining people for years as “enemy combatants” without redress, housing people in secret CIA prisons, and allowing our protectors to illegally invade the privacy of our own citizens.

Between the War on Terror and the Drug War (include the very real war on social drinking in our race to Prohibition), we have let the purveyors of fear strip away our rights to privacy, property and to be secure in our persons at an alarming pace.

If we will give up these lawful rights, what won’t we give up to “be not afraid”?

The very real fear should be that we are losing our courage to defend our personal freedoms while at the same time defending our nation.

Feducation

In a Presidential election year it is disappointing to listen to the benign rhetoric that plagues what should be serious discussions about the actual policy solutions needed to improve our nation. Missing in action are the serious, meaningful discussions about the very real actions that are required to address our ability to improve economic conditions, meet societal objectives and promote liberty and freedom in America.

The equation itself is quite simple. Since President Roosevelt’s “New Deal”, we have continued to increase the size and scope of the federal government. As we hand off more responsibility and accountability for our lives to the federal government, they take more in tax and excise revenues. As they control the redistribution of everyone’s money, they put rules and regulations around the handouts of hundreds of billions of dollars furthering their stifling reach into the daily lives of every American.

For examples of the expanding control and reach, one has to look no farther than public education and funding, the control of speed limits, funding for streets and highways, what farmers grow and don’t grow, alcohol and BAC limits, grants for road construction and repair, pre-school programs, what you can and can’t produce, and on infinitum. It is a list so long that I will take the example of education to make the point, but it is the same for so many aspects of our “free lives”.

We have turned into a nation of people that turns its collective heads naturally to the Federal Government on every issue. The difficulty is that the government has reached so broadly into the fabric of controlling and redistributing money that everyone represents a “constituency” in some form or fashion. Taking this largesse from one constituency not only raises cries of “societal damage” from the special interest affected, but seems to parlay into a feeling that if we let them gore the other guys ox, my ox could be next.

Lets’ start with total government spending which is reaching stellar proportions and move on to education as the example.

You will find yourself easily handled by all of the spin doctors (our government representatives and not-so-special interests) on this one because the conversation always comes back to "the Big 3"; National defense, Social Security, and Medicare and Health. The Big 3 represent approximately 65% of federal spending or “outlays”.  So the spin goes, "if we don’t address the Big 3, we can’t have a meaningful impact on the budget."

Well of course we can address the Big 3 and as just one example, we had better do something about Social Security which is roughly equal to our spending on defense at 21%. Tail end baby boomers will be getting a nickel for every dollar we’ve handed over and the generations after that will have nothing. Talk about gored oxes.

In their sales pitch and closely followed by supporters of this spending, they will use the comparison of the overall Federal budget as a percent of U.S. GDP claiming that while it has been at highs and not so lows, it still fairly stable over the years. This is a red herring. The government isn’t supposed to "produce" anything. Every dollar taken from individuals and private enterprise is one less dollar that can be put to productive use. The federal government should be shrinking as a percentage of production, but hey that’s another one of those "inconvenient truths".

The point is this, the Big 3 represent 65% of $3 TRILLION per year in government spending (Federal spending here only; add your state and local governments spending to this pot of gold). If we add defense spending at an additional 21%, let’s call 86% untouchable because “we the people” won’t get to make difficult decisions regarding social programs that aren’t even authorized by the constitution.

That leaves a mere $435 BILLION per year that needs to be sitting under the carving knife.

This is the second way the spin goes in. All this talk about trillions and billions of dollars when it’s related to our government goes in one collective ear and out the other. “Billions” when related to the government has become just like the deduction out of your payroll check for taxes. You don’t feel like the money is yours and you’re conditioned to the fact its "deducted" every month, so you barely bat an eye. I listen to people every year at tax time who are thrilled to be getting a “tax-refund” as if they weren’t the ones who earned the money being "refunded" in the first place. People should be made to write a check for the amount of their money confiscated every month to bring back awareness these issues.

This is conditioning and of a very dangerous sort. This is money taken from the hard work of our people to be handed out by the federal government. To get an idea of how much money this is, let’s take a look a few things $435 billion might get you…

• 435,000 millionaires per year
• 1,916,430 new houses at the national average home price per year
• 21,751,485 new cars at an average price of $20,000 per year
• 14,325,738 4-year tuitions at a private college per year
• 108,757,425,000 gallons of gas at $4 a gallon per year

It is an astounding amount of money, yet it rolls right through the nations collective minds in some sort of "well its ok if it’s put to good use" mind set. The best use of the money is to leave it with the people that worked hard to earn it.

So let’s get back to our example regarding the expanding control of the government …

The Department of Education (ED)

I choose this as an example, but frankly you can pick from the laundry list Federal agencies which can be found here Federal Agencies. I will forewarn readers to set aside some time to page through this list since it is a very long and disappointing display of overreaching.

To begin with the Department of Education is not constitutionally authorized. There is not one single reference to the word “education” in the constitution. The actual words that are supposed to constitute the law for our country are clear in both the 9th and 10th Amendments.

Specifically the 10th Amendment states:

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

Clearly the Federal government is not authorized to be involved in public education and it is left to the dictum of the states and the people.

On October 17, 1979 President Jimmy Carter and congress passed the unconstitutional creation of the "Department of Education Organization Act" creating this cabinet level department which began operations in May of 1980 and now controls the handing out of $68 BILLION a year.

In the Department of Educations own words (emphasis and underlining added by me)...

"ED currently administers a budget of $68.6 billion per year—$59.2 billion in discretionary appropriations and $9.4 billion in mandatory appropriations—and operates programs that touch on every area and level of education. The Department's elementary and secondary programs annually serve more than 14,000 school districts and approximately 56 million students attending some 97,000 public schools and 28,000 private schools. Department programs also provide grant, loan, and work-study assistance to about 11 million postsecondary students.

That said, it is important to point out that education in America is primarily a State and local responsibility, and ED's budget is only a small part of both total national education spending and the overall Federal budget, as we explain in a primer on the Federal role in education. In addition to this historical background, we try to demystify the Federal budget process and show how it is carried out in ED. "

Trying to make the case that the department is a small part of the nation’s overall spending is quite disingenuous when they have no business redistributing federal tax dollars for education in the first place. These distributions come with all sorts of strings attached and have our local schools and other entities teaching to the test and allocating significant resources to learn how to apply and get their hands in the trough. California, New York, and Texas each received over a billion dollars in department "grants" in 2007 with Florida, Illinois and Pennsylvania hot on their heels at over half a billion each. Since all we hear about is constantly strained school budgets, you can bet everyone is working hard to "comply" with what the federal government thinks is right to get their share of the pot no matter what it takes.

What are we getting for this illegal departments help in influencing state and local policy with federal tax dollars? Happier special interest groups but certainly not performance (again emphasis added by me…

"Highlights from PISA 2006: Performance of U.S. 15-Year-Old Students in Science and Mathematics Literacy in an International Context"

"Description: This report summarizes the performance of U.S. students on the Program for International Student Assessment (PISA), comparing the scores of U.S. 15-year-old students in science and mathematics literacy to the scores of their peers internationally in 2006. PISA, first implemented in 2000, is sponsored by the Organization for Economic Cooperation and Development (OECD), an intergovernmental agency of 30 member countries. In 2006, fifty-seven jurisdictions participated in PISA, including 30 OECD jurisdictions and 27 non-OECD jurisdictions. The results show the average combined science literacy scale score for U.S. students to be lower than the OECD average. U.S. students scored lower on science literacy than their peers in 16 of the other 29 OECD jurisdictions and 6 of the 27 non-OECD jurisdictions. Twenty-two jurisdictions (5 OECD jurisdictions and 17 non-OECD jurisdictions) reported lower scores compared to the United States in science literacy. On the mathematics literacy scale, U.S. students scored lower than the OECD average. Thirty-one jurisdictions (23 OECD jurisdictions and 8 non-OECD jurisdictions) scored higher on average, than the United States in mathematics literacy in 2006. In contrast, 20 jurisdictions (4 OECD jurisdictions and 16 non-OECD jurisdictions) scored lower than the United States in mathematics literacy in 2006."
 
You can go to for a list of over 88 programs that the Department of Education has their tentacles in.

We need to get off the raise/lower tax conversation and on to the cut expenses and the size and scope of federal government to its constitutionally authorized duties only. The tax savings will become obvious.

Drill! Drill! Drill! The Mommy Energy Policy

Daniel Henninger wrote a great article posted in the Wall Street Journal June 13, 2008 entitled Drill! Drill! Drill! http://online.wsj.com/article/SB121322872046666269.html 

In summary the article talks about how other countries find oil reserves and drill for them using this wealth to increase their influence on the world stage. We in the U.S. sit on billions of barrels and won’t drill in the ocean or in the Arctic Wildlife Refuge because of the caribou putting our national security at risk.

I don’t know how we get so far off track but let me take a shot at it here…

We have become a mommy nation (before all you mommies get offended it’s not about the gender but the traditional role so swap the pants to meet your needs or match the situation) that has to protect and coddle everything we touch so that no one and no-thing, can possibly get hurt. This is as true with our energy policy as it is with every other aspect of American life today. We legislate every aspect of peoples lives whether its fatty foods, smoking, drinking, helmet laws, guns, drugs, and on and on under the battle cry of “societal good” or the eventual “cost to society”. After the passage of initial legislation telling you what you can and can’t do under the penalty of law they latch on to the string and pull it harder, persistently passing more and more laws on their “mission” and “passions” continuing to jerk away peoples freedoms, clogging our court systems with trivia and filling our jails at the fastest pace in the world. The costs of these controls are staggering to the economy.

Frankly our country and its citizens are less free than they have ever been and we continue further down the slippery slope every day.

Translate the overzealous protection these people think we need from ourselves to something as lofty as the planet and other occupying species and you can begin to see where our problems begin.

These are the same people on the global warming bandwagon. They make the case that all us other folks are concerned about is the economy. That “if the earth isn’t here anymore the economy won’t matter anyway”. These people must have money trees growing in orchards and/or are completely seduced by science that is still being debated regardless of the “irrefutable proof” and “agreement by the world’s scientific community”. I’m not going to argue these fine points in this article, however suffice it to say that the earth is part of a universe wherein small changes in simple orbits, the suns evolution or changes within the earths bowels make our impacts as negligible as killing an ant. With time and reasoned thinking (it’s happening now) this will be shown to be true.

Now I’m all for clean air, clean water, knocking down as few trees as possible and trying to disturb as few of our co-inhabitants as we can. But there has to be a balance and we are leaning precariously over a very dark chasm.

We are not a society of “hunter, gatherers” any more. We are no longer “one with the universe”, killing animals or picking nuts and berries for only what we need to eat and “using the whole buffalo”. We have industrialized and technocrized (new word, sorry) our societies in the name of what most would call progress.

The worlds economies need to clothe, feed, house and provide livings for over 6 billion people. We can, and should do it as cleanly as possible however to think we will have no impact on what's around us and should just let these economies suffer as billions of dollars in productivity are poured into killing ants is beyond Pollyanna.

Today other countries control our security (the military doesn’t run on magic) and they are rapidly gaining control over our economic well-being. We’re sending trillions of dollars to these cultural wastelands to help finance wars against ourselves. We’re going to rely on the Middle East to fill up our Humvees and tanks, and to siphon out trillions of productive US dollars that could benefit our economy to appease our collective “green” consciousness.

We’re acting like rich spoiled children who rise to save the planet against our not so wealthy gluttonous neighbors while we represent roughly 5% of the world population and consume about 25% of the energy. Phrases form on high like “Saving our planet for future generations” isn’t going to mean very much to “our children” when “our children” are suffering from economic malaise, lowered standards of living or, in the worse case, are living under the thumb of the countries that eventually sap us of our power and freedom because we don’t want to mess up “the view”.

The unfortunate fact is we have to live on this planet as a species and we create some dirty, inconvenient stuff to do it. This comes down to a balance between economic and real, physical survival and we need to get off this ridiculous tilt. Go ahead and separate your garbage if it makes you feel better but we’d better start using the resources we control or we won’t have control, security, or prosperity and our children may be speaking another language. 

We need to move now to gain as much energy independence as possible while at the same time reducing our consumption and getting to viable alternatives. The first will not happen if we try to mommy our way through it and the second won’t happen as long as we sit back and let the infrastructure of oil drive our policies. The right solution will be a shock to the infrastructure, to the economy and result in a massive relocation of labor and capital… and we had better get to it.