Happy Bill of Rights Day

I can not let this day slip off the calendar without noting that today has been ordained by the congress to be National Bill of Rights Day. Remember, the Constitution of the United States of America was written in 1787, but ratification was not until two years later, after the addition of the ten enumerated rights we know as the Bill of Rights. The states would not budge until those basic rights were added to the new Constitution.

This year as we celebrate Bill of Rights Day we live in a nation divided, where some among us would give away those enumerated rights for a false sense of security in an uncertain world. On the other side are those of us with a Libertarian streak and a commitment to the Constitution in general and the Bill of Rights in particular and we will never willingly cede one iota of freedom.

And to those who gave me grief for years, and thought I was a "bad" liberal because I had a particular fondness for that second amendment? Didn't see the Bush cabal coming, did you? And those of you who thought I was paranoid? So? That doesn't make me any less right.

New for spring: Privacy Rights Revived

I must admit that I am feeling pretty good about the way things are shaping up. Yeah, we have a William Jefferson to deal with, but we also get Ike Skelton as HASC chairman. Sure we have some housecleaning to do, like you and me, politicians are human and not a damned one of 'em is buckin' for saint-hood.

We accept that we have a few corrections to make, and I'm confident we will make them. I for one am demanding accountability across the board. (Jefferson doesn't represent all Democrats any more than Mark Foley represents all Republicans. That being said, I have already emailed my congressman and expressed my views on Jefferson.)

But here is what has me dancin' in my jammies today...Patrick Leahy will be the chairman of the Senate Judiciary Committee. Patrick Leahy is a privacy advocate. He realizes that privacy and the right thereto resides witht he people, not with the government. Lets repeat that sentiment:

The right to privacy rests with the people, not with the government.

He will rein in the datamining operations that track what meal you have on a flight, what calls you make from your cell phone, what emails you send or receive. (If they are going to read my email they could at least delete the spam for me.)

Leahy chairing Judiciary is a good thing for our country, and a welcome respite from the onslaught of constitutional abrogation that has been the norm under the Bush administration.

Swearing an Oath

Those progressive Midwesterners in blue Minnesota elected their first African-American house member on November 7, and he happens to be a Muslim. Keith Ellison is the first Muslim to be elected to the U.S. congress from anywhere in this country.

Rep. elect Ellison is a devout and practicing Muslim, and he wishes to take his oath of office on the holy text of his own faith, the Qu’ran. Hey, if we want it to mean anything, then he should take the oath on his own article of faith.

Dennis Prager doesn’t see it the same way I do however. (No big surprise there.)

I have an Uncle Myron who is a lot like Dennis Prager. He is what we refer to as a schmendrik : a fool, worthy only of contempt. (What can I say, we cut to the chase with our definitions.) So it comes as no surprise to anyone that Dennis Prager is sticking his cloven hoof in his mouth over this. Act the fool is what schmendrik’s do best. Catholics have Pat Buchanan, we have this putz. Call it even?

Prager, in his bombastic glory blusters forth that Ellison is undermining American culture itself and if he won’t take the oath on the bible, by god he should not be allowed to take his seat and serve his term.

Can I remind Mr. Prager that oaths need not be sworn, but they can be affirmed instead? Two Presidents of the United States, Franklin Pierce and Herbert Hoover, both affirmed their oaths and bypassed swearing the oath on the bible.

Me, I’m torn between allowing oaths to be sworn on whatever holy text underpins the belief system of the person taking the oath; and another alternative. I would have no problem with a Hindu swearing their oath on the Bagavad Gita or the Upanishads. What’s the problem with a Muslim swearing on the Qu’ran? It would be an apostasy to force participation in any religion in this country that was founded on religious freedom, and forcing an oath be sworn on the Holy Bible, the sacred text of Christendom, is an affront. Jews tolerate it because the first half is all about us. If it wasn’t the Judeo-Christian heritage, don’t think for a second any Jewish hands would swear oaths on that book. It is the height of intellectual dishonesty to pretend otherwise, and Prager knows it. He’s just a putz.

But if he is going to get all pissy about swearing the oath on the Qu’ran, I’m going to have to insist that, as a Jewish agnostic, I have a problem with all religious materials used to swear oaths. Instead, we take all religious texts out of the equation, and everyone swears their oath on the document they are promising to uphold: The Constitution of the United States of America.

Kevin Tillman: After Pat's Birthday

I found this in a couple of places - I am not sure which site I lifted this from. I'll be safe and hat-tip both Crooks and Liars and Truthdig. Pat Tillman and his brother Kevin joined the Army together after the attacks of Sept. 11, 2001. Pat was killed by friendly fire in Afghanistan on April 22, 2004. In this photo of the brothers from early 2002, Pat is on the left. Where ever I lifted this from, I got the distinct impression that Kevin Tillman, who was discharged in 2005, wants every blog in America to run this full text. I am happy to oblige. It will stay at the top of the page until After Pat's Birthday.


It is Pat’s birthday on November 6, and elections are the day after. It gets me thinking about a conversation I had with Pat before we joined the military. He spoke about the risks with signing the papers. How once we committed, we were at the mercy of the American leadership and the American people. How we could be thrown in a direction not of our volition. How fighting as a soldier would leave us without a voice… until we got out.

Much has happened since we handed over our voice: Somehow we were sent to invade a nation because it was a direct threat to the American people, or to the world, or harbored terrorists, or was involved in the September 11 attacks, or received weapons-grade uranium from Niger, or had mobile weapons labs, or WMD, or had a need to be liberated, or we needed to establish a democracy, or stop an insurgency, or stop a civil war we created that can’t be called a civil war even though it is. Something like that.

Somehow our elected leaders were subverting international law and humanity by setting up secret prisons around the world, secretly kidnapping people, secretly holding them indefinitely, secretly not charging them with anything, secretly torturing them.

Somehow that overt policy of torture became the fault of a few “bad apples” in the military.

Somehow back at home, support for the soldiers meant having a five-year-old kindergartener scribble a picture with crayons and send it overseas, or slapping stickers on cars, or lobbying Congress for an extra pad in a helmet. It’s interesting that a soldier on his third or fourth tour should care about a drawing from a five-year-old; or a faded sticker on a car as his friends die around him; or an extra pad in a helmet, as if it will protect him when an IED throws his vehicle 50 feet into the air as his body comes apart and his skin melts to the seat.

Somehow the more soldiers that die, the more legitimate the illegal invasion becomes.

Somehow American leadership, whose only credit is lying to its people and illegally invading a nation, has been allowed to steal the courage, virtue and honor of its soldiers on the ground.

Somehow those afraid to fight an illegal invasion decades ago are allowed to send soldiers to die for an illegal invasion they started.

Somehow faking character, virtue and strength is tolerated.

Somehow profiting from tragedy and horror is tolerated.

Somehow the death of tens, if not hundreds, of thousands of people is tolerated.

Somehow subversion of the Bill of Rights and The Constitution is tolerated.

Somehow suspension of Habeas Corpus is supposed to keep this country safe.

Somehow torture is tolerated.

Somehow lying is tolerated.

Somehow reason is being discarded for faith, dogma, and nonsense.

Somehow American leadership managed to create a more dangerous world.

Somehow a narrative is more important than reality.

Somehow America has become a country that projects everything that it is not and condemns everything that it is.

Somehow the most reasonable, trusted and respected country in the world has become one of the most irrational, belligerent, feared, and distrusted countries in the world.

Somehow being politically informed, diligent, and skeptical has been replaced by apathy through active ignorance.

Somehow the same incompetent, narcissistic, virtueless, vacuous, malicious criminals are still in charge of this country.

Somehow this is tolerated.

Somehow nobody is accountable for this.

In a democracy, the policy of the leaders is the policy of the people. So don’t be shocked when our grandkids bury much of this generation as traitors to the nation, to the world and to humanity. Most likely, they will come to know that “somehow” was nurtured by fear, insecurity and indifference, leaving the country vulnerable to unchecked, unchallenged parasites.

Luckily this country is still a democracy. People still have a voice. People still can take action.

It can start after Pat’s birthday.

Brother and Friend of Pat Tillman,
Kevin Tillman

UNCONSTITUTIONAL

Seven retired Federal Judges, three of whom were appointed by Republican presidents, have filed briefs with the U.S. Court of Appeals claiming the detainee bill signed by the president is unconstitutional. I can see it.

Under this new law, the military can arrest people wherever they are on the globe and hold them indefinitely without allowing them access to courts to question their detention and without the benefit of disclosure, i.e. seeing the evidence against them.

The president sang paens to the new law, which establishes military tribunals (sisn't the Soviets use those to crush dissent?) as a vital tool in the "War on Terra" and said it would allow prosecution of high-level terror suspects.

Here it needs to be pointed oput that prosecution of high-level terror suspects has always been possible and always been pursued vigorously. Without abrogating the Constitution.

"We believe that compelling this court to sanction executive detentions based on evidence that has been condemned in the American legal system since our nation's founding erodes the vital role of the judiciary in safeguarding the rule of law," the judges wrote.

The brief was filed by retired Judges Shirley M. Hufstedler, Nathaniel R. Jones, George N. Leighton, Timothy K. Lewis, Frank J. McGarr, Abner J. Mikva and Patricia M. Wald. Three of the judges — Leighton, Lewis and McGarr — were appointed by Republican presidents.

Though Congress banned the use of torture in the military commission law, the judges said military documents revealed evidence of torture that officials didn't properly address.

In one instance cited in court documents, a man who denied receiving artillery training said an interrogator beat him until he bled from his head.

"I was in a lot of pain, so I said I had the training," the man said, according to a transcript cited in court documents. "At that point, if he had asked me if I was Usama Bin Ladin, I would have said yes."

Without the court system, the judges said, there is no check on such behavior.

I can't say it any better than these learned and sober individuals did, so let me close with this: I want my country back!!!

A cynic might say Posse Comitatus has been repealed

Buried in the Defense Authorization Act for 2007 is a provision that changes dramatically the relationship between ordinary Americans, their government and their military. The Defense Authorization Act contained a highly objectionable provision to allow the President more control over the National Guard, which included changes to the Insurrection Act, which will make it easier for this or any future President to use the military to restore domestic order without the consent of the nation's governors. The modification to the Insurrection Act gives the president the authority to send the military into the streets of America as a police force to "restore order." They aren't even calling it the Insurrection Act any more. Instead, it has the Orwellian-sounding "Enforcement of the Laws to Restore Public Order." It is all so broad that virtually any protest can be determined to be a danger to the United States and troops could be deployed into the streets of America.

There is a specific name for such actions. Martial Law.

The Insurrection and Posse Comitatus Acts have been a cornerstone of American freedom since 1878. Posse Comitatus was passed to prevent the United States Military from being used to enforce elections in the repatriated confederacy after reconstruction. Now, 128 years later, it is part of our libertarian heritage.

Here is the text of the Posse Comitatus Act

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

This bit of Federal Law is the only U.S. criminal statute that outlaws military operations directed against the American people under the guise of law enforcement.

Here is the direct text in question from page 19 of the Defense Authorization Act:

Use of Armed Forces in Major Public Emergencies. Section 1042 would amend the Insurrection Act to make explicit the President’s authority to deploy the armed forces, including the National Guard, within the United States to restore order or enforce federal law after a major public emergency, such as a natural disaster, epidemic, or terrorist attack. Current practice, in a major public emergency, is for the governor or legislature of a state to request assistance from the federal government. The Federal Emergency Management Agency then organizes the federal government’s response to that request.

This provision would clarify the President’s authority to deploy the armed forces in response to public emergencies without first receiving a request from state authorities in cases where the President determines such action is necessary to restore public order or enforce federal law. This section also would authorize the President to direct the Secretary of Defense to provide supplies, services, and equipment to persons affected by such an emergency. If this clarification would encourage the President to use the armed forces more frequently or more
intensively than is the current practice, the potential cost could be significant. However, because CBO does not have a basis for determining the frequency of such emergencies or the magnitude of the potential involvement of the armed forces, CBO has no basis for predicting the potential cost of this section.

This caught the attention of the sober individuals at the Congressional Budget Office. At the very beginning of the CBO Cost Assessment, the CBO stresses

Section 4 of the Unfunded Mandates Reform Act (UMRA) excludes from the application of that act any legislative provisions that enforce the constitutional rights of individuals. CBO has determined that section 1042 would fall within that exclusion because it would expand the authority of the President to employ the armed service to protect individuals’ civil rights. Therefore, CBO has not reviewed that section of the bill for mandates.

I don't know about you, but that little bit makes me nervous. Especially given the track record of this administration.

Exactly one Senator has raised a note of protest over this egregious power grab. Senator Patrick Leahy of Vermont has been the lone voice of dissent. On 29 September, Leahy entered into the Congressional Record that he had "grave reservations about certain provisions of the fiscal Year 2007 Defense Authorization Bill Conference Report," the language of which, he said, "subverts solid, longstanding posse comitatus statutes that limit the military's involvement in law enforcement, thereby making it easier for the President to declare martial law." Leahy claimed that this provision had been "slipped in,as a rider with little study while other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals." Leahy went on "The implications of changing the (Posse Comitatus) Act are enormous. There is good reason," he said, "for the constructive friction in existing law when it comes to martial law declarations. Using the military for law enforcement goes against one of the founding tenets of our democracy. We fail our Constitution, neglecting the rights of the States, when we make it easier for the President to declare martial law and trample on local and state sovereignty." (emphasis mine) Leahy finished his comments by wondering aloud how we got to this point. "Since hearing word a couple of weeks ago that this outcome was likely, I have wondered how Congress could have gotten to this point. It seems the changes to the Insurrection Act have survived the Conference because the Pentagon and the White House want it."

I too wonder how we got here Senator. This is indeed disturbing news, and this provision needs to be repealed immediately when the Democrats take their seats in January. If it is not, I fear the consequences.

The only reason I can sleep at night knowing about this is due to the fact that I have faith in the men and women of our military and the men and women of honor who lead them, and in the fact that they take their oaths to uphold the Constitution, and protect this country from all enemies, both foreign and domestic, and if we are going to start reinterpreting what constitutes a domestic enemy, where might that stop, Mr. President? Better men than you have failed in such pursuits.

Lawful and Unlawful Orders and a Soldiers Responsibility

At Making Light retired officer Jim McDonald has done what my own husband has been putting off doing: He has written the quintessential essay on lawful and unlawful orders. Here is his essay, in it's entirety:

You are not required to obey an unlawful order.

You are required to disobey an unlawful order.

You swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.

The Constitution states (Article VI):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Here is article 3, the common article, to the Geneva Conventions, a duly ratified treaty made under the authority of the United States:

Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.


Article 3 of the Geneva Conventions is straightforward and clear. Under Article VI of the Constitution, it forms part of the supreme law of the land.

You personally will be held responsible for all of your actions, in all countries, at all times and places, for the rest of your life. “I was only following orders” is not a defense.

What all this is leading to:

If you are ordered to violate Article 3 of the Geneva Conventions, it is your duty to disobey that order. No “clarification,” whether passed by Congress or signed by the president, relieves you of that duty.

If you are ordered to violate Article 3 of the Geneva Conventions, this is what to do:

1. Request that your superior put the order in writing.

2. If your superior puts the order in writing, inform your superior that you intend to disobey that order.

3. Request trial by courtmartial.

You will almost certainly face disciplinary action, harassment of various kinds, loss of pay, loss of liberty, discomfort and indignity. America relies on you and your courage to face those challenges.

We, the people, need you to support and defend the Constitution. I am certain that your honor and patriotism are equal to the task.

This post may be quoted in full. A linkback would be appreciated.

Thank you, Jim. I'm glad to link to your homepage, too.