Thursday, August 21, 2014

Missouri-Show Me What?

I come from a state that raises corn . . .and Democrats and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.
— Willard Duncan Vandiver, Speech at Naval Academy 1899

In order to place things in perspective when looking at Missouri it helps to consider that there are worse things in that fair state than the Ferguson police department. Consider the justices on its Supreme Court, the state legislature and, as they most recently demonstrated, its voters.

The Justices on the Missouri Supreme Court have spent considerable time during the last few years on lawless excursions in the state’s death chambers. The Justices have repeatedly shown that they do not subscribe to the legal principles followed by most state courts. The principles they ignore are those that require that executions of those on death row should not take place while the prospective beneficiaries of the process have appeals pending before federal courts requesting postponement of the event. In a thoughtful dissent in the 2014 case of Zink, Nicklasson et al vs. Lombardi Judge Herbert Bye, a member of the U.S. Court of Appeals for the 8th Circuit, reviewed the Missouri Supreme Court’s unwillingness to defer to federal courts when it came to executions. In his dissent he wrote that: “Missouri has a well-documented history of attempting to execute death row inmates before the federal courts can determine the constitutionality of the executions.” He observed that among the court’s many wanderings through the death penalty process was the 1983 case of Doyle Williams. The Missouri Supreme Court set a time for Mr. Williams to expire at the hands of the executioner before the time for Mr. Williams to appeal his conviction and death sentence had expired. In staying the execution, U.S. Supreme Court Justice Harry Blackmun explained to the Missouri Justices that legal protocol required that condemned criminals should not be killed by the state until all their federal appeals had been exhausted. A few months later the Missouri Justices again set a date for executing four condemned men before the time for them to appeal had run and again Justice Blackmun admonished the Missouri Justices saying: “If Missouri fails to fulfill its responsibility, I shall fulfill mine.” The Missouri Justices who did not appreciate being admonished by a United States Supreme Court Justice ignored Justice Blackmun and continued in their free wheeling ways. In January 2014 they permitted the executioner to execute Herbert Smulls 30 minutes before the U.S. Supreme Court had acted on Mr. Smulls’ request for a stay. (The Justices were prescient-Mr. Smull’s request was turned down-after he was dead.) It is not only the court that acts in ways that non-Missourians find difficult to understand. The legislature is a close second.

In 2007 the Missouri legislature repealed a law that had been in effect for several years requiring would-be gun buyers to be vetted and licensed by a local sheriff prior to the purchase. According to a “report”: in the Journal of Urban Health following that law’s repeal there were an additional 60 gun-related murders in that state each year between 2008 and 2012. In February 2014 the Missouri legislature considered another broad gun rights bill. One of its provisions required that a gun owner report the theft of a firearm within 72 hours after discovering the theft. The NRA believed that such a reporting provision implicated the 2d Amendment’s guarantees and at its urging, that provision was stripped from the bill. Although the NRA’s rationale is not immediately obvious, it may well be that if a person reports to authorities that his or her gun has been stolen the person is admitting that he or she had a gun and that is clearly no one’s business and a violation of the reporter’s second amendment rights. The people of Missouri, of course, elect their legislators and a recent vote suggests they get what they deserve.

On August 5, 2014 voters approved Amendment 5 to the Missouri Constitution by a 64% margin. That amendment states that: “The right of every citizen to keep and bear arms in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. The state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement.” Michael Boldin, the Executive Director of the Tenth Amendment Center, said that the passage of the amendment was merely the first step in nullifying all federal gun laws and regulations in force in Missouri. As he explained: “Today was step one. Step two is now. Pass the 2d Amendment Preservation Act, banning state enforcement of every so-called federal gun law. And from there, step three and four will be to bring gun control to an end in Missouri.”

Missouri calls itself “The Show Me State.” Someone should accept its invitation. It needs all the help it can get.

Thursday, August 7, 2014

Congress on the Playground

It could probably be shown by facts and figures
that there is no distinctly native American criminal
class except Congress. —Mark Twain, Following the Equator

Now that members of Congress have returned to the playground at home to enjoy recess time (a considerably longer time than when the members were physically in grade school) it seems appropriate to contemplate what their absence from Washington means for the country. What it does not mean is that because its members are in the playground there will be no new laws passed. No new laws were being passed before they went off to play. What it does mean, however, is that fewer hearings will be conducted.

Congressional hearings are what members of Congress engage in when they have nothing else to do. Ostensibly the purpose of hearings is to learn about problems that Congress can solve through legislation. Since Congress no longer legislates, hearings are principally designed to enable those conducting the hearings to make headlines. If a hearing is especially successful it can be used to embarrass the person who is testifying. This is especially useful if the hearing is conducted by a member of one party and the witness is a member of the other party. If the embarrassment is really good, the person conducting the hearing may conduct lots of hearings on the same subject just for the sake of getting publicity.

The tragedy that took place in Benghazi has been treated by Republicans as a windfall. They are, of course, sorry that Christopher Stevens, the ambassador to Libya in 2012, and three other Americans were killed in that attack but they have not permitted that to deter them from holding 13 hearings and 50 briefings as of this writing and producing 25,000 pages of documents that will never be read by anyone should members of Congress ever decide the hearings should draw to a close. That will not happen for a while. The House Select Committee plans to hold more hearings in September. Since an independent investigation has extensively examined the event and shown what lapses were responsible for the event, the main purpose of the new hearings is to prove that Hillary Clinton is responsible for the death of the ambassador. Were she to announce that she does not plan to run for president, the committee would call off the hearings. Of course the Benghazi hearing is one of only many hearings that the Republican members of the House have conducted. Another was precipitated by the exchange of Taliban militants held for years without charges at Guantánamo for Sgt. Bowe Bergdahl.

In exchange for Sgt. Bergdahl’s release, the president authorized the release of five Taliban militants from Guantánamo without giving Congress 30 days’ notice as required by the National Defense Authorization Act. The president saw a small window of opportunity to negotiate the sergeant’s release and decided to get the sergeant through that window lest it shut before he could act. Commenting on the release Senator James Inhofe (R. -OK) said: “Our joy at Sergeant Bergdahl’s release is tempered by the fact that President Obama chose to ignore the law, not to mention sound policy, to achieve it.” Mr. Inhofe’s joy at the release of Sgt. Bergdahl is probably no less great than his joy at the opportunity to conduct yet another hearing to demonstrate that congress has a role to play in governing the country even without passing any laws. In addition it afforded Republicans a different platform than the Affordable Care Act from which to attack President Obama. There can never be enough platforms as they have repeatedly demonstrated.

Not all hearings are designed to attack the president. Some are designed to permit congressmen to demonstrate their wisdom and their grasp of important affairs of which their constituents may have been unaware because of the dumb things they so often say. One such hearing took place in June at a House Judiciary Committee hearing on religious freedom, a hot topic if ever there was one and one that beggared a hearing. Rev. Barry Lynn, executive director for Americans United for the Separation of Church and State was testifying before the Committee on the issue of the separation of church and state. The hearing gave Louie Gohmert, a congressman from Texas, the opportunity to get some important information in the public record. Demonstrating the same tolerance for those who do not subscribe to his religious beliefs as ISIS shows to those who do not subscribe to their beliefs, Mr. Gohmert asked Mr. Lynn: “Do you believe in sharing the good news that will keep people from going to Hell, consistent with Christian beliefs.” After Mr. Lynn expressed disagreement with Mr. Gohmert’s assertion the Congressman said: “So, you do not believe somebody would go to Hell if they do not believe Jesus is the way, the truth, the life.” His comments will come as a bit of a surprise to those who had not thought they were heading for hell because they did not share Mr. Gohmert’s religious views. Indeed, many people think the country is going to hell not because of its religious beliefs but because of the behavior of Mr. Gohmert and many of his colleagues in the United States Congress. Those who think that are right. Mr. Gohmert is wrong.

Thursday, July 3, 2014

Wayward Drones and Other Tales

Nor shall any person . . . be deprived of life. . . without due process of law. Fifth Amendment to the U.S. Constitution

It had been an exciting spring for the drones. Notwithstanding ongoing reports of civilians in Pakistan and other countries being accidentally killed by drones, there was some good news. Amazon announced that it planned to begin using baby drones to quickly deliver packages to purchasers. Although the FAA put a hold on that plan, it nonetheless gave the baby drones something to look forward to. Law enforcement agencies were increasingly beginning to use medium size drones to aid them in surveillance activities. And big drones were once again getting to fly over Iraq to keep track of where the insurgents were. All in all, things were looking up for drones. Then along came June accompanied by three reports that put the drones in bad odor. One was a Justice Department Memorandum written some years ago. Another was a report from the Stimson Center entitled “Recommendations and Report on the Task Force on U.S. Drone Policy” and the last was an investigative report by a Washington Post reporter.

The Justice Department memorandum was released pursuant to a court order telling the administration to release large parts of the Justice Department memorandum that explained why the administration thought it was OK to target and kill Anwar al-Awlaki in Yemen in 2011. Mr. Awlaki was an American citizen who the government believed had gone from innocent citizen to global terrorist. Notwithstanding the fact that the United States had the capability to target and kill him, the memorandum said that Mr. Awlaki’s capture was not feasible. According to the author of the memorandum, soon to be Federal Judge, David Barron, using Dickcheneysian logic, opined that because of the infeasibility of capture it was lawful for the government to kill him. That was accomplished in September 2011 when a drone strike in Yemen, a country with which the United States was not at war, killed him, together with another American citizen in the vehicle who was not a target of the strike. According to a report in the New York Times, that killing was the first time since the Civil War that the U.S. had deliberately killed an American citizen without a trial.

The Stimson Task Force on UAV Policy conducted an extensive examination of the use of drones at the present time. None of its conclusions was likely to give comfort to the drone family. The report observed that UAVs (drones) “have enabled the United States to engage in the cross-border use of lethal force against targeted individuals in an unprecedented and expanding way, raising significant strategic, legal and ethical questions.” It observes that notwithstanding the use of drones, extremist groups “have grown in scope, lethality and influence” in the Middle East, Africa and South Asia. Among its conclusions is that the use of drones may contribute to the erosion of sovereignty norms. It says that situations in which the United States believes the use of drones justified may not be shared by other sovereign nations who may later use them for their own purposes. In support of its conclusion it says: “Imagine, for instance, if Russia began to use UAV strikes to kill individuals opposed to its annexation of Crimea and its growing influence in Eastern Ukraine. Even if the United States strongly believed those targeted by Russian were all nonviolent political activists lawfully expressing their opinions, Russia could easily take a page out of the United States’ book and assert that the targeted individuals were members of anti-Russian terrorist groups with which Russia is in an armed conflict. Pressed for evidence, Russia could simply repeat the words used by US officials defending US targeted killings, asserting that it could not provide any evidence without disclosing sources and methods and creating a risk that terrorists would go underground. In such circumstances, how could the United States credibly condemn Russian targeted killings?”

Putting aside the morality of drone warfare the report by the Washington Post reporter discloses that there is something slightly whimsical about the behavior of drones when they are not engaged in killing people. Drones are flown by pilots who can be thousands of miles away from the drone they are piloting and among those pilots, pilot error is not uncommon. Several military drones have disappeared while at cruising altitude never to be found again. One drone crashed because the pilot failed to realize she was flying it upside down. Another crashed because the pilot pushed the wrong button on the control stick. The crews of two predator drones explained the erratic behavior of the drones in their charge by saying they had been “possessed” and plagued by “demons.”

One camera operator gave a chronically nervous pilot of a predator drone a helpful piece of advice while the pilot was waiting to take off: “Stop saying ‘uh oh’ while you’re flying. It’s never good. Like going to the dentist or a doctor. . .oops. What the f—-you mean oops?” According to the Post report, shortly after this exchange the drone “rammed a runway barrier and guardhouse. “Whoa” the pilot said. “I don’t know what the hell just happened.”

It would be interesting to know what the pilots who have accidentally killed civilians in Pakistan, Afghanistan, Yemen and other places say when they realize their mistakes. Probably something more than “oops” or “I don’t know what the hell just happened.” We will probably find out as the number of drones continues to climb and kill.