R. James

Did You Have a Friend?

So the old song asks, about the good Reuben James. But did you know who Mr. Reuben James was?

In the ensuing skirmish, Reuben James positioned himself between Decatur and an enemy blade, saving Decatur's life. For the rest of the war, James continued to serve Decatur aboard Constitution and Congress. During the War of 1812, he served on the United States, under Decatur, and on the President. On 15 January 1815, however, President was defeated by the British and James was taken prisoner.

After the War of 1812, Reuben James resumed service with Decatur, aboard Guerriere, and participated in the capture of the 46-gun Algerian flagship Mashouda on 17 June 1815. After peace was made with the Barbary states, James continued his service in the Navy until declining health brought about his retirement in January 1836. He died on 3 December 1838 at the U.S. Naval Hospital in Washington, D.C.

And that, brothers, is why -- even after the disaster of 1941 -- we still have a ship called the good Reuben James.

Ethics & Politics

Ethics & Politics:

As we were just discussing the other day, for both Plato and Aristotle the correct politics were a natural outgrowth of the correct ethics. The two things were natural in the sense that correct ethics was directly related to the nature of man; and correct politics was merely an extension of ethics to society. Once you know what the right kind of man is, you build a society that encourages and develops that type. This understanding is the foundation of Western culture.

Ethics and modern American politics are only very barely connected. In the last several posts, we've talked about the extreme social importance of having a Congress that can be trusted to watch over the secret programs run by the Executive -- and the fact that none of us, not the Executive and not the People, really trust Congress as it currently stands to do that. For now let us leave aside the question of whether Congress doesn't deserve it because its members are naturally corrupt, or because the fact that it hasn't been required to take moral responsibility for the programs through proper oversight. The point is we absolutely need a Legislative branch to oversee secret Executive programs. It is a critical function for the continued survival of the Republic. Without that, trust in government will break down to the degree that either the 'red states' or the 'blue states' will be on the edge of insurrection. Civil war -- let us be absolutely honest, Civil War and nothing else -- lies down that road.

The situation is not better at the state level, even relatively sane states like my beloved Georgia:

Teddy Lee just got fired as executive secretary of the State Ethics Commission. It is your loss - and a big one.
He was sacked by a bunch of politicians who couldn't bend him, fold him or intimidate him from representing your interests above theirs.... Ethics - like motherhood and apple pie - is something all politicians pay homage to, but that's about all they do. Perdue is touting new ethics laws that have just gone into effect, but the law has more holes in it than Bonnie and Clyde.

It's true also in Steel City Cowboy's state, where the government is actually trying to destroy the newspapers to punish them for stopping an illegal government pay raise.

For that reason, I gladly sign on to the Center-Right insurrection on ethics. We've come to the point at which ethics is a national security issue. There is no getting around it. It was one thing during the 'fat and happy' 1990s to play at ethics. No longer. We now need a Congress we can trust, so that the minority -- whether red or blue -- can trust its findings. Oversight has to matter, and it has to be honest and reliable.

We need ethics and politics to be rejoined, or the nation will not survive. It cannot survive, with half of its populace believing the most active branch to be in violation of its basic principles, and with no one that half can trust to engage in oversight. The matter has become critical.

GA politics

Politics in the Great State of Georgia:

I see that Feddie of Southern Appeal has joined the re-election campaign of Governor Sonny Perdue. The race is of interest to me. Although I am currently a citizen of Virginia by virtue of residing there, by birth and in my heart I am a Georgian, in exactly the way that Thomas Jefferson ("my country is Virginia") was a Virginian.

I haven't decided whom I'll support, mostly because the opposition isn't yet clear. I am, however, going to take a moment to point out that Sonny, in the picture he posted on the governor's homepage, bears a remarkable resemblance to another famous politician.

Hopefully, Sonny has a better platform (and a less wily opponent).

Moose Drool

"Moose Drool"

Anyone who happens across some of this is invited to send me some. It's apparently available in Minnesota, where I know for a fact I have at least one loyal reader who ought to want to send me some beer.

Blondes

"The Best Blonde Joke Ever"

I'm not sure I agree with Greyhawk, but it is reasonably clever.

NSA

This Seems Like A Problem:

I realize that (a) government secrecy is something that you've all heard me beat the drum about perhaps one too many times, and (b) there are good reasons for a certain amount of secrecy, particularly in national security matters. But how can this possibly be true?

The National Security Agency has warned a former intelligence officer that he should not testify to Congress about accusations of illegal activity at NSA because of the secrecy of the programs involved.

Renee Seymour, director of NSA special access programs stated in a Jan. 9 letter to Russ Tice that he should not testify about secret electronic intelligence programs because members and staff of the House and Senate intelligence committees do not have the proper security clearances for the secret intelligence.

Miss Seymour stated that Mr. Tice has "every right" to speak to Congress and that NSA has "no intent to infringe your rights."

However, she stated that the programs Mr. Tice took part in were so secret that "neither the staff nor the members of the [House intelligence committee] or [Senate intelligence committee] are cleared to receive the information covered by the special access programs, or SAPs."

The Washington Post has more on the question of how the Congress fails to oversee Executive Branch programs. It sounds as if this is a general failure of both institutions, the Executive and the Legislative branch: the Legislative for not insisting on full oversight and access to information on these critical programs, and the Executive for accepting the lack of oversight. I'm sure it makes things easier, but it's like permitting your drunken co-pilot to sleep through pre-flight: it's probably easier to get pre-flight done that way, but there's nobody checking your work. If the co-pilot is unfit, your job is to say so, not to try to do it all yourself. There's too much at stake.

The Department of the Navy shows the way:

The Navy has issued a new regulation heavily restricting the use of compartmented security classification to preclude or impede oversight of sensitive programs.

After an internal Navy audit begun early last year found that secrecy was being used to restrict Congressional, Defense Department and internal access to potentially controversial or even illegal activities, the Chief of Naval Operations directed a wholesale review of compartmentalization.

He is right to do so, and deserves praise for this course -- although the article raises other questions about the alternative he's proposing. "So here is a program for compartmentalizing information where the security standards internally are the same as an SAP, but the compartment is easier to establish and the program doesn't have to be reported to Congress!" Well, if that's what it boils down to, that's even worse -- although presumably the Navy wouldn't advise you not to testify to the Senate Select Committee.

We the People can't have full access to every bit of information, for practical and unavoidable reasons related to the need for some secrecy. Our representatives, however, have to have that access -- and they have to insist on using it, and use it well. They have failed to do so, and the Executive branch has taken advantage of their lapse rather than insisted on them doing their part. We must, as citizens, demand a higher standard from our elected representatives.

Evidence and Proof

Evidence and Proof
(also posted at Wilde Karrde)

During the West-ward expansion of America, many people found themselves in wagon trains traveling across plains and deserts. Occasionally, they found themselves trapped by winter weather far short of their destination, and went through extreme hardship before spring came.

One such party was the Donner party, which began travelling towards California in 1846. Trapped by snows in the Sierra Nevada mountains during the winter of '46-47, the party was forced to eat anything they could find, including their own pack animals.

There are also debates over whether the party ever resorted to cannibalism of their dead members.

Very recent research into the subject is outlined by David Nishimura at Cronaca. Historians cannot prove that the cannibalism did happen, but they can prove that human bones buried there weren't charred.

It is a case of absence of evidence. We don't have direct evidence to prove that survival cannibalism occurred. As David argues in his short post, this is not absence that no such cannibalism occurred. From his own research into other such claims, he knows that such events rarely leave evidence behind in the form of charred bones.

This simple discussion of a grisly subject reminds me of many other discussions that have been held recently. From the question of what happened to Saddam Hussein's weapons labs to the question of whether the President was right to order wiretapping of suspected terrorists calling friends in the United States, we are dealing with situations where there is absence of evidence on at least one side of the case.

However, the absence of evidence does not prove that that we have evidence of absence. This applies equally to questions about the legality of Top Secret programs, the historicity of survival cannibalism, data sent by CIA sources all over the world, and knowledge about another government's secret weapons programs after significant effort by that government to hide most of the data from the outside world.

The fact that we don't have direct evidence about the Iraqi weapons program does not mean that we have direct evidence that the weapons program never existed and was never a threat.

Likewise for the legality of wiretapping by the NSA. The fact that we don't have the evidence to show that the wiretapping was legal does not mean that the wiretapping was illegal. It means that the evidence is unavailable to us right now.

CON ST Troopers

Outstanding:

Connecticut State Troopers obviously draw on a pool of fine individuals.

Droid death

Androids Must Die:

Also from my sister, a list of 'get a human' shortcuts for many major corporate and government phone systems. Handling the finances and such things here at Grim's Hall, I've had a fair part of my life stolen by these computerized beasts. By all means, let's frustrate them if we can.

The Alito Nom

Alito, War Powers & International Law:

In deference to poor Cassandra, who wants more Alito, I'll point you to Mondo Alito at PajamasMedia, which has gathered a lot of posts from all sides of the debate.

Meanwhile, from the old journalism school, The Ft. Worth Telegram has a very useful roundup:

Sen. Mike DeWine, R-Ohio: This hearing is really our opportunity to fully and fairly evaluate your qualifications for the high court, but what I really want to do is give a lengthy explication of my feelings about Roe vs. Wade. The mere fact that Roe has been upheld for more than 30 years does not mean that it’s entitled to special deference. Is Roe Supreme Court precedent? Certainly. But in my view, it is not super-precedent or super-duper precedent. It is precedent. Nothing more. Now, I want to turn to another topic ...

Unfortunately, I haven't been able to find a transcript for Biden's war-powers question. It's one of the more interesting Constitutional issues, and a relevant one. The closest I've found is this account, which isn't thorough enough.

Though I am not a lawyer or a judge, I am a citizen, and one who believes firmly that the final right to interpretation of the Constitution lies with the People. As such, I think we all have every right to develop our own opinion of what the Constitution means and ought to mean, independent of what the courts and legislatures say it means. I'm glad to consider arguments from either source, but also from history and reason. In that spirit, let's examine the War Powers question.

Alito is correct to say that the issue is unsettled as a matter of Constitutional law. On the other hand, as a practical matter there is something of an agreement: almost every President of the 20th century 'went to war' somewhere without a formal declaration of war from Congress. Congress retains the power to declare war, and in fact the power to stop it -- by cutting off funding for military operations. Yet it has decided to allow the President a great deal of liberty in conducting military operations.

Even the War Powers Act, passed because of concerns arising from Vietnam, only requires the President to inform Congress. So, as a practical matter, yes -- the President could invade Iran tomorrow, so long as he informed Congress that he had done so.

The Supreme Court has not declared the War Powers Act to be constitutional or unconstitutional, because it has never been asked to do so. Neither the Presidents of recent years, nor the Congress, has desired a formal ruling that might go against them. They have chosen, reasonably, to conduct themselves by informal compromise.

Biden apparently asked if the President "can just go ahead and violate international law ("that's the administration's position," said Biden)."

The answer to that question, as I understand it, is that it depends on what is meant by "international law." If it refers to anything informal, or treaties we haven't ratified but which have been ratified by lots of other countries (e.g., the ban on cluster bombs), or the fact that lots of allied countries have similar laws 'so we should have one too,' etc., then neither the President nor Congress is the least bit bound by "international law."

If it means "formal treaties which the United States has signed and ratified," then the US is bound by them unless -- I would argue, and support any President or Congressman who acted on this understanding -- that treaty violated one of the protections of the US Constitution, such as freedom of speech.

However, even then there is a lot of room. What happens if the US acts in a way it feels is consistent with the treaty, but (say) France and Russia feels is a violation? That's a question I would like to see addressed by Alito, if anyone feels inclined to ask a real question. To some degree there's a domestic analogy in the NSA spying -- if the President and the US Justice Department feel it's legal and constitutional, to what degree does that merit deference from the Supreme Court?

My sense is the answer is, "To no degree in cases of rights; to some degree in cases of power; to a great degree in cases of international opinion."

The Supreme Court is meant to be independent of the other branches. If the President, the lawyers at the Justice Department, and the majority in both houses of Congress agree on a point, the Court should take note of it. However, if it is deciding a case that influences the fundamental rights of US citizens, it ought to be willing to decide in favor of the rights of citizens even if there is near perfect unity among Congressmen and the President's men. If the Court is convinced that fundamental rights are being violated, it ought to set the matter straight in spite of every other branch of government.

In cases where rights are not an issue, but the powers of government are, the opinion of the President and the Justice Department should be taken into consideration along with the sense of Congress. However, they should be of no more weight than the opinions of state-level justice departments, in Federalism cases. If the Federal Government and Texas disagree about whether something is legal, they ought to be equals before the court.

If a case of "international law" came before the Court, the fact that the President and Congress believed they were doing right should have great weight. France or Russia's opinion should have no standing at all. The Supreme Court should consider only the question of whether the President or the Justice Department's interpretation holds water, and is consistent with the Constitution.

There is an underlying principle here, which is this: that the Constitution exists for a purpose, and that purpose is "to secure the blessings of liberty to ourselves and our Posterity." Fundamental rights are absolutely essential to the blessings of liberty, and protecting them must therefore be the first business of the Court.

Ensuring the success of Federalism is important to the blessings of liberty, as it allows for different people, who will have different understandings of what liberty is and how they want to live, to have the chance to live according to their lights. Balancing Federal and state power is therefore an important concern of the Court, and it should give equal deference to both sides.

Finally, the ability to decide for ourselves as a People is one of the fundamental blessings of liberty. We have won it, and we have defended it; and this government was instituted in part to protect that blessing. The Court has no business handing away any part of that liberty. It cannot give, as a gift to any foreign nation or entity, what they have neither the right nor the power to claim.

Both Right

They're Both Right, Of Course:

Althouse snarls at the Durbin-Alito go-round:

Durbin accused of Alito of seeking out ways to decide cases against the little guy and even tried to connect a decision of Alito's to the recent mining disaster. Alito defended himself in his usual way: I decide cases according to the law. That case relating to mining was about the statutory definition of "mine," and the above-ground pile of coal at issue in the case did not fit the definition.

Durbin just repeated his accusation: There's a pattern, a pattern of decisions, you know, the crushing hand of fate. (Crushing miners underground?) Durbin sounds a litttle dimwitted saying this, but his point is one made by some of the smartest people in the legal academy: I don't care what your excuse is for any given case that you might want to explain. I will just retreat to my observation, based on every case you ever decided, that there is an overall pattern of siding with the big guy.

Alito's last response to Durbin, as the time is running out, is the assertion that there are many cases where he has sided with the little guy -- not enough to alter the pattern, the pattern, you know -- and a description of one case where his decision favored a schoolboy who had been bullied because of his perceived sexual orientation -- doesn't matter because there's still the pattern, the crushing-hand-of-fate pattern...

Here's how I suggest the judge-so-accused answer the question:

"Senator, you're right. A lot of the time, I am forced to rule against the little guy. No doubt about it -- most of the time.

"But that's because I'm a judge, and the role of a judge is to apply the law, not to write the law. All I can do, if I'm an honest judge, is apply the law as it is written to the facts of the case. And, sadly, the law usually favors the 'big guy' over the little guy.

"That's a problem, Senator. But it's not a problem for judges. It's a problem for legislators. So tell me, Senator -- what do you intend to do about it?

"Because these aren't the only hearings going on right now in D.C. There's another set going on about lobbyists and influence and bribe-sucking legislators. The answer you're looking for about where this pattern comes from, that answer is going to be found in those hearings, not these."

Kids & Cancer

Kids & Cancer:

A number of you read the site of long-time Grim's Hall reader and commenter Lizard Queen, which you can find here. You probably saw her recent piece on the her cousin Marshall, who died of cancer at the age of ten.

Well, today my sister sends a link to the website of a friend of hers, who is an oncology nurse. She -- her friend, not my sister -- is taking donations to shave her head, with the monies going to St. Baldrick's. She has a modest goal of a thousand bucks, and a cute little girl with leukemia who's agreed to do the cutting.

CEN Cares

CENTCOM Cares, Part III:

USCENTCOM sends a request that I point you to their press releases for today. I'm happy to do so. Lest anyone care to think of this as 'another military attempt to propagandize etc. etc. etc.," notice that there is a press release on a death of a detainee at Abu Ghraib in addition to the good news.

Good Reading

Good Reading Today:

Via The Donovan, don't miss this article on hand-to-hand combat training for amputee veterans. It used to be that an amputation meant that the Army considered you crippled, but no longer: increasingly, even amputees are being returned to duty if they wish to go, as many do. That being the case, you have to develop a plan for keeping them combat-effective.

One of the examples in the article has actually been rendered blind. The interesting thing about the Army's move to Brazilian jiu-jitsu as its main hand-to-hand technique is that it largely eliminates the problem of blindness -- at least, once you come to the point of the grapple. Jujitsu, more generally, does -- BJJ isn't unique in this. With training and practice, you can learn to touch a person anywhere on his body, and know exactly how every other part of that body is oriented with your eyes closed. Even the most subtle shift in the location of any part is detected.

Now, if the army would just get on with developing those cybernetic limbs with built-in weapons we've been promised...

To counterbalance that story of martial virtue and courage, we have this story from the Daily Telegraph, via Yourish:

The commanding officer of a nuclear submarine berated his officers with such fury that his face became "gorged with blood", reducing subordinates to tears, a court martial heard yesterday.

Capt Robert Tarrant, 44, bullied and humiliated his officers while at sea on the submarine Talent, yet behaved impeccably in port, it was alleged.

His conduct led to him appearing before a court martial at Portsmouth naval base, where he denied five charges of ill-treating four officers and one rating under his command through repeated, unjustified, verbal abuse.

His "rants" could last for up to 20 minutes, it was alleged. He would place his face 2in away from the target of his rage and shout. One officer was physically sick, it was claimed.

Obviously this British Royal Navy officer missed his calling. He should have been a USMC Drill Instructor instead. Yelling at your subordinates until tears run down their cheeks is considered the height of accomplishment in that line of work. Indeed, it's quite broadly admired as a skill. My father -- who was an Army Drill Sergeant -- used to tell with awe the story of the time they had a Marine DI with them and one of the recruits did something especially stupid with a rifle.

These are literally matters of life and death, rifles and submarines. You can't touch your subordinates to express your displeasure, not even when they do something that could get people killed. Now, apparently, you shouldn't fuss at them either. At least, not in the Royal Navy.

Recess

Recess:

At Red State, Stephen Den Beste is wondering if the Democrats in the Senate are playing a gambit:

[M]aybe the Democrats are using obstruction and delay of SCOTUS nominees as a way of goading Bush into using recess appointments to fill SCOTUS positions. If they can do that, it's a qualified victory for the Democrats. For one thing, it would make Bush look like he isn't willing to fight it out in the Senate despite his party having a majority there.

For another thing, it holds out hope that if the Democrats can move back into the majority in the Senate, that they would have even more leverage over the kinds of candidates who could be approved. I don't think it would break the hearts of Senate Democrats if one or more seats in the Supreme Court actually remained vacant (or were filled by recess appointments) going into the 2008 election cycle because then they could make that a major issue in the campaign.

I certainly agree that Bush is in danger on the recess appointment issue. He has used it recently in cases where it is apt to draw fire from left, right, and center alike. The left is opposed because they oppose Bush generally, and because Myers a crony rather than a qualified appointee; the right, because Myers isn't a qualified candidate to deal with either immigration or customs issues, which are both serious national security concerns; the center, because Myers represents nepotism and political favoritism over merit, and promotion by merit is a classic American value. It very well may be that obstructionism, not only on SCOTUS but on any candidate, could lead to a campaign issue of the type that SDB envisions.

On the other hand, the problem is that obstructing everyone takes the bite out of the tactic. As SDB himself says:

A lot of the rhetoric you saw about Roberts, and now are seeing about Alito, isn't really about them. Turning women back into second class citizens, rolling back civil rights for non-whites, eroding our right of privacy, strengthening the imperial presidency, instituting a Christian theocracy in the US, etc. etc. is really about the Republicans -- or how the Democrats would like everyone to view the Republicans.

That's right, but it's also transparent. The script against Alito and Roberts sounds so similar because there really isn't anything particularly negative to say about either candidate, yet the Democrats in the Senate feel obligated to oppose them vigorously for reasons of fundraising. If there were real areas of concern, we would be hearing about those instead. In the absence of a real issue, you get "fill in the candidate's name here" boilerplate rhetoric that lacks any real power because it is obviously not serious. Boilerplate sounds and feels like boilerplate.

Thus, the other side of the gambit SDB posits is a real risk of breaking down the credibility of Senate Democrats with middle Americans. SDB says they have nothing to lose by playing this out, but in fact they have. Credibility is the currency of the modern world, as The Defense Science Board pointed out in its advice on "strategic communications":

Power flows to credible messengers. Asymmetrical credibility matters. What's around information is critical. Reputations count. Brands are important. Editors, filters, and cue givers are influential. Fifty years ago political struggles were about the ability to control and transmit scarce information. Today, political struggles are about the creation and destruction of credibility.

If the Democrats in the Senate brand themselves as "knee-jerk opponents of anything the President does," they could actually end up in a situation in which the President could recess-appoint even SCOTUS nominees without suffering at the polls. The danger of boilerplate opposition is that it undermines faith in the honesty of the opposition. Middle America could end up saying, "Well, you weren't playing fair anyway; what did you think the President would do? Just accept never having an appointment ratified?"

The danger of opposing every nominee with this kind of radical rhetoric is that you end up not being able to oppose the real bad nominees. There's no credibility left for opponents to use, and thus no power. Indeed, this is true even on occasions like Myers' nomination, when "the opposition" includes a number of people who wouldn't normally be in the opposition. The public becomes used to ignoring "the opposition," and so ignores whoever happens to be in opposition on any given occasion. The statements of the opposition are interpreted as the usual background noise, even on occasions when the speakers aren't the usual opposition and the statements aren't the usual boilerplate.

The result would be a critical breakdown of the "advice and consent" function of the Senate, and with it a serious weakening of the Constitutional separation of powers. It appears we are already at the point that recess appointments for director-level assignments can be used without political negatives by the President, even when there are serious qualms about the candidate being proposed. It is not impossible that even the SCOTUS could come to fall into that category. It is not impossible that even genuine bad actors could end up being approved in cakewalks, or by recess appointment.

I think the gambit is a much riskier undertaking than SDB believes. If you worry about the creation of an imperial presidency, you ought to be thinking about how to improve the credibility of the Senate. We can begin by telling our Senators to shut up unless they really mean it.