Holy. Freekin. S***.

Iowa Hawk, in a rather entertaining manner, envisions the ultimate results of comparitivism on the Supreme Court. (via Normblog)

I don't regularly read Iowa Hawk. But I think I'm going to. (Also, I'm a homey of his and all).

T&Sen

Torture & the Senate, Updated:

There is an important update to the post on Torture & the Senate, below. Greyhawk calls it a 20 yard punt, but that may be an understatement.

2/2

A Bad Week:

I have put this off as long as I can. The families are now notified, and the obituaries have run.

Grim's Hall mourns the passing of four warriors from our adopted 2/2 Marines.

Corporal Nick Cherava.

Lance Corporal Shayne Cabino.

Lance Corporal Patrick Kenny.

Private First Class Jason Frye.

Lance Corporal Kenny leaves behind a sister, Katy, who has just completed Boot Camp. All of them leave behind friends and fellow Marines who will remember, and avenge, their loss.

HRH Mike

His Royal Highness, Mike:

Sovay sent me a story about the trueborn King of England, at least if you believe that kingship is rightfully inherited. Turns out, the fellow lives in the Aussie Bush:

A documentary team from Britain's Channel Four conducted extensive research and concluded Hastings' ancestors were cheated out of the crown in the 15th century, meaning he should rightfully be the British head of state.

"When the producer landed in Australia and said he was coming to see me he was very vague about what it was all about," Hastings tells AFP in his broad Australian accent.

"I thought he was drunk to be honest ... then he came here and laid out his evidence, it came as a total surprise to me, it left me stunned.

"I reckon I might send Lizzie (Queen Elizabeth II) a bill for back rent, the old girl's family have been living in my bloody castle for the last 500 years."

The documentary's historian Michael Jones found documents in Rouen Cathedral he believes show that Edward IV, who ruled from 1461 to 1483, was illegitimate because when he was conceived his parents were 200 kilometres (124 miles) apart.

Well, actually, there have been a few other families in there since 1461. Since King Mike I is a part-time historian, who volunteers at a museum devoted to his town's last armed robber, I assume he knows that.

Anyway, sounds like his house is more fun than the palace anyway:

He said the documentary makers brought copies of royal crowns and other regalia worth several hundred thousand dollars to Jerilderie

"The grandkids are pretty boisterous and were running around the house in the robes," he said. "(The program makers) were getting really nervous and saying 'um Mike, I think one of them's sitting on the crown'."

Well, that will happen.

LA-PC

Posse Comitatus:

R.M. mails to let us know that Legal Affairs is hosting a debate on Posse Comitatus. Our friends at INTEL DUMP will be carrying the pro- side of the argument, and have provided a place for reader commentary at the above link.

Torture

Torture & the Senate:

Greyhawk at the Mudville Gazette noticed that the Army leads the way on human rights, at least as far as the US Senate is concerned.

Interesting that in responding to claims that the Army has failed to provide guidance to soldiers the Senate has endorsed the published Army guidance to soldiers as the definitive response.

In other early media coverage, both the AP and Knight-Ridder have defined the measure as "a rebuke to the White House."

A DoD note on variation from FM 34-52 here. Explicit departures were authorized here. Beatings and other severe punishments were never authorized.

It is not an accident that the Senate finds in the military the chiefest defenders of the Conventions. The military is not the only organization that engages in interrogations in serious matters. However, it has something not present at the CIA or FBI: roots in a culture of honor that date back centuries. The FBI was formed under Hoover, and its roots are those he planted. The CIA didn't even exist until after the second World War. It quickly abandoned its commando roots, and became an organization of pure spies.

In 1949, however, with the world's ugliest war just behind them and every reason to expect an even worse one to come, military men and political leaders who had themselves been military men sat down to try to reinforce the walls that had crumbled so badly. They remembered the firebombings of Dresden and Tokyo, the Blitz, the horrors of Burma, and much more. They looked forward to a possible day when nuclear weapons might be fielded, or Soviet tanks roll across Europe. Against both the backdrops, the revision and extension of the Geneva Conventions seems like a small thing. Nevertheless, it has held. These are the rules of chivalry in war, in which all American fighting men are trained to this day.

That same field manual was where I looked for information, back when the news of Abu Ghraib was first breaking in the press. In those dark days, I was arguing in favor of preserving the Geneva Conventions. I still argue for it. The Army Field Manual, I noted, lists the relevant ones in an appendix.

What the Conventions seek to accomplish is to protect the innocent during wartime, as much as can be done. They do this by creating three categories. They have specialized legal names, but what they amount to is this: warriors, noncombatants, and bandits. Warriors are required to protect the noncombatants, in part by not taking refuge among them or pretending to be them. In return, if captured they are to be treated with civility even by their enemies. Noncombatants are to be protected. Bandits -- those who use the war itself, or the rules, as a means to advance their own agenda -- are to be destroyed.

As time passed, foolish men without understanding joined with cunning men of evil intent. The United Nations fell under their sway, and as a living organization, has become a force that defends tyrants, blocks attempts to arm peoples facing genocide, and spreads corruption. These same men also twisted the Geneva Conventions. Using language that sounded kind but masked a harmful intent, in 1977 new protocols were added to the Conventions. They extend to some several groups that were previously 'bandits' the protections due to warriors, even though they may hide under the cover of civilians.

The United States is not party to these. Nor should we be. They undermine the protection of noncombatants, which is the purpose of the Conventions. They blur lines best kept clear.

Today, many who think of themselves as well-meaning are likewise undermining the protection of the noncombatants. By extending the protections due to warriors onto criminals, you are extending the status of warriors onto the criminals. The logic of the Conventions requires that the innocent and the righteous be protected, and the vicious be destroyed. Protecting the evil was not part of the plan. It undermines the plan.

INTEL DUMP is opposed to the Senate's law on the grounds that the particular law is foolishly written. He notes that the Field Manual isn't nearly specific enough to be used as a source for a legal text, and adds:

Where the problem lies is in ensuring that the technique as used in the approach meets appropriate legal standards. The cure for that is not Congressionally-designed rules, but rather an architecture that places oversight and control points to ensure that techniques used during an approach are appropriate. The Army's getting there (all the major interrogation facilities include organic legal assets) and a Congressional push to enhance such an architecture is a better approach.

Froggy is opposed to it on the grounds that it will compromise effectiveness. His approach seems to be that scaring the hell out of people isn't torture. This sounds like an approach that would tend to blur into real torture at the margins ("You're just going to scare him, right?" "Pain is scary."). Special Operators, however, do their "operating" at times and in places when the support structure for the Conventions is not available, and under conditions of extreme danger in which the ethical issues are different. In ethics, a decision cannot be immoral when you have no other reasonable choice. That is something a court martial would consider, should it come up.

The Senate is acting well in attempting to reinforce the adherence to the Conventions. It is acting badly in enacting a poorly-written law that is likely to confuse the issue rather than clarify it. It is also acting badly by further blurring the lines that the Conventions drew between warriors and bandits.

Like Senator McCain, I want -- and I believe the military wants -- an America that is morally better than any foe it may meet. I think real strength rises from that, as he himself demonstrated in the POW camps. It has been my experience that there is no stronger defender of the Geneva Conventions of 1949 than the US military, and for good cause. They were written by brothers in arms, who understood and shared the same ancient code of honor.

Senator McCain is wrong, however, to attempt this legislation. Being morally better than our foes means more than refusing to do violent things. It means taking moral issues seriously. We have to recognize that, in life generally and in war particularly, you get more of what you successfully protect and less of what you successfully punish. We must keep an eye toward protecting the weak and the innocent, as well as the honorable and the just. We must work harder to punish the cruel and the wicked -- among our own forces, when they appear, and among the enemies of civilization whom we fight.

We must keep the lines clear between them. It is our enemy, not us, who benefits from the loss of clarity.

UPDATE: Greyhawk resolves the question I wondered about in the comments. McCain's law makes the Field Manual the law of the land, and 'doesn't set it in stone,' but allows the Army to revise it at will.

This amendment would establish the Army Field Manual as the standard for interrogation of all detainees held in DOD custody. The Manual has been developed by the Executive Branch for its own uses, and a new edition, written to take into account the needs of the war on terror and with a new classified annex, is due to be issued soon. My amendment would not set the Field Manual in stone – it could be changed at any time.

Emphasis added, and it needs to be added. Am I to understand that the Senator intends to delegate to the Executive branch complete power to rewrite American laws governing torture and detainees, and also classify those laws?

Are we to believe, Senator, that this is the road to the moral high ground?

MWL

"The Marine Wife's Life"

You might enjoy this young lady's blog. She's married to a corporal in the artillery.

Hat tip, of a sort, to Daniel, where I noticed she'd left a mention in his comments.

White Oak

White Oak Canyon:

This morning dawned clear and bright, but for the last several days we've had a constant downpour. It was yesterday, the fourth day of rain, that I decided to go hiking in spite of the weather.

I drove down to the White Oak Canyon, and found that the place was almost deserted. I was not surprised. The rain was limiting the number of people in the canyon in two ways. First, not everyone likes hiking in continual rain.

Second, the road was flooded out. I had to put the truck in 4x4 Low and cross a road that had become a ford (unlike the truck, which is a Chevy). The water was moving fast, and up over the tops of the tires, but the truck didn't seem the least bit bothered.

It turned out to be a beautiful hike. I encountered on the trail a pair of Rangers, who were checking out the fire road (no danger of a fire yesterday!) to see if it had washed out. It had.

If any of you are looking for a good hike, and you happen to be in the area, this is a very nice one. I actually didn't go out the canyon to the waterfalls yesterday, but did a section of the Old Rag instead. There are maps of the whole area at the NPS site, here.

NPR

Feddie on NPR:

Feddie of Southern Appeal has been interviewed on NPR. He's talking about the Miers nomination. You can listen to the piece here.

Miers, more

Miers Speaks:

Thanks to Southern Appeal for this one. She sat down with Specter. Boy, was he impressed:

"She needs more than murder boards," Mr. Specter, Republican of Pennsylvania, said in an interview, referring to the mock question-and-answer sessions most nominees use to prepare for their confirmation hearings. "She needs a crash course in constitutional law."

. . . .

Several Republicans, including Mr. Specter, said they steered clear of asking Ms. Miers questions about constitutional law. Mr. Specter, who said the timing of the confirmation hearings would depend in part on when Ms. Miers felt ready, said he initiated a discussion of the shifting standards the Supreme Court has applied in interpreting the Commerce Clause of the Constitution, but only to illustrate to Ms. Miers the kinds of questions she would face during her hearings.

"I did not ask her about it because I don't think she's ready to face it at the moment," he said.

Oh, that's gorgeous. Just what we were looking for in a nominee to the Supreme Court.

Snobbery

Snobbery:

Instalawyer has a piece up accusing Ann Coulter of being an elitist. The charge has somewhat wider application than just Coulter, however, so I wanted to point out something about it.

Now, I guess I'm not too surprised at Coulter's ranting about Miers's background. She went to an "elite" undergraduate school [Cornell], an "elite" law school [Michigan], she was an editor of the law review, she clerked for the Eighth Circuit Court of Appeals, and she worked for Floyd Abrams's "elite" law firm in New York City [highly-paid, hundreds of lawyers, most with pedigrees such as Harvard, Yale, Columbia, Virginia, Michigan]. Coulter's looking for a bird of a feather, and appears to take an immediate dislike to an appointee who has the wrong color feathers.

One thing I've figured out over the last 20 years or so: legal elitists tend to a pack mentality; they are most comfortable with people who have similar backgrounds. If I had been top 5% at American University, I might have gotten an interview with Coulter's former firm, had I been so inclined. It's unlikely they would have made me an offer, however. I'm just not in the same club, so to speak.

I know just where this guy is coming from. I once interviewed with the CIA -- actually, I had a second and a third interview with them. And they asked me, each time, to confirm that the school I had gone to for my graduate work was accredited.

"Of course it's accredited," I said. "It's a state university. Says so right in the name. Who do you think does the accrediting?"

"Well, I've never heard of it," they sniffed. And then, in the next interview, same question again: "I've never heard of this place where you got your degree. Are you sure it's accredited?"

"Do you suppose the Regents of the State of Georgia don't bother to accredit their own state universities?"

The look on their faces suggested that they supposed something rather like that; or, at least, that a school accredited by Georgia just wasn't up to snuff anyway.

What you have to understand, though, is that there is an objection to Miers that is the opposite of snobbery. There is an anti-elitist objection, too.

Miers is an elite because she's a crony. She's an elite because she personally knows important people. She also moves in high circles, and she's getting this job (if she gets it) for only that reason.

Most of us Americans get where we get through hard work and the procedure. Those of us who went to state schools, who have worked hard and honestly, we are just disgusted to see less qualified people advanced because they're buddies of the people in charge.

Julie Myers, the Bush nominee to head ICE, moved out of committee yesterday. She'll probably be approved. She's 36, and she's married to and related to important people, and her only other job qualifications are from other patronage positions she got by the same family connections. She's going to be the head of the Department of Homeland Security's prime investigative agency, and she is probably no more qualified than I am to do it. If I wanted a job with ICE, though, I'd have to go take the service exam, and become a trainee. My education and experience would probably qualify me for a higher pay grade than the true "bottom rung," but I would still have to start low and work up. The only reason I'd get to start anywhere but the very bottom is that I have already worked hard getting the education and experience.

So should she. But instead, she's going to run the place. People who have worked hard and gotten the kind of experience needed will really be making things work, but they'll be paid less than her, and they'll be pretending to be her inferior officers.

This Miers nomination is the same thing. It's not that she's not from the Ivy leagues -- fair enough. It's that she's not the best qualified. Not even close. She's Bush's buddy. She's never been a judge, OK. So maybe that's not by itself a disqualification. She's never argued a case before the Supreme Court either. She's not got a developed track record on Constitutional law. She's someone no one would have picked -- except that she knows Bush, so he picked her.

That shouldn't be enough for a top position, and the Supreme Court is as high as it gets in the legal field. It shouldn't be enough to be at the top of any Federal agency, but particularly not for one with a lifetime appointment.

This isn't the way America is meant to work. It's hard work and experience that's supposed to get you to the top. It's downright obscene to watch the people who have done more and worked harder passed over, time and again. These aren't small posts. ICE is a critical agency for preventing terrorist attacks in the US. The Supreme Court will be resolving the most divisive questions in our society. These posts deserve the best.

Roberts gave every impression of being just that. Good job on that one. He wasn't the kind of thinker I wanted, but his qualifications were so obvious that no reasonable person could oppose him. He deserved it, not because he went to the Ivy leagues (although he did), but on sheer merit.

If you know how to get it right once, you can get it right again. Back to the drawing board. Give us a real nominee.

S.Thai

Ugly days in Southern Thailand:

I've a post over at Bill Roggio's site on the topic. We seem to have entered a new phase in the insurgency there -- a much more dangerous one. I reflect that a certain fatalism may be necessary in counterinsurgency warfare. Even when you have the best kind of tools for the job, as Thailand has and as we often do not, there is only so much you can do to limit the spread. The enemy is active too, and they are also devoted and cunning.

Good Thoughts

Ad Astra

Those of you who will: Thoughts and prayers to USMC 2/2. Don't ask why. Just pray.

Atrios

It's Been A While...

About two years, in fact, since the last time I linked to Atrios.

Still, if you can look past his love of profanity, this cartoon does have a certain point to it.

Single-Six

Happy Birthday To Me:

As Fate will have it, important events tend to cluster around given dates at Grim's Hall. The Summer Solstice, for example. It happens also to be my wedding anniversary. Many years, it is also Father's Day. And, just to make things fun, our little boy Beowulf was born on the very same day. So, the coming of Summer brings a huge festival of gift-giving for all parties.

This is balanced by the Yuletide, six months later, when we try to get together with family and friends for another grand celebration. These are the two high points of the year.

However, there is also mid-October. My beloved wife and I were born precisely five years apart, to the very day. As there was a leap year intervening, our birthdays are one day apart: Mine on Columbus Day, 12 October, and hers on the 13th (Friday the 13th, in fact, was her original birthday). That means that this week I will be marking my... well, I can't tell you which birthday, now that I've told you the difference in my and my wife's ages, or I should be giving away the secret of her own. As we know, that is forbidden to all gentlemen.

Indeed, I got a package in the mail today from my mother. How thoughtful! I opened it eagerly... only to find three DVDs for her cherished grandson. Not so much as a note for me! Ah, well.

I normally forbid anyone from buying me gifts anyway, although there are one or two women who carry on doing so in spite of my firm rule on the subject. My wife is one, and Dear Sovay the other; and, as last year Sovay got me a catapult, I can hardly complain. If any of you are looking for the right gift for the man in your life, let me tell you, a catapult is definitely the way to go.

However, I now already have a catapult. So, instead of a new catapult, I decided to buy for myself a .22 revolver. Some of you may remember I bought a Henry Golden Boy over the summer, so that I could practice my riflemanship any day I had the time; and I have enjoyed it so much, I wanted a revolver as well so that I could practice handgunnery just as often.

I went down to the store today, and Lo and behold, what did they have? A used Ruger 50th Anniversary Single-Six, at a most reasonable price. The fellow who runs the place seemed rather surprised, in fact, to see just how reasonable his business partner had decided to be with the thing. As they were only produced in 2003, they are something of a collector's item -- although, all I care about is that it points and balances correctly, and has the same sights as a New Vaquero.

After I paid for it, I took it to the range. The experience was somewhat like firing a mortar used to be: the first shot was low and to the left, and low; the second, high and right; but the third and subsequent, right in the ten ring. The fixed sights are right on. It was just a matter of learning how to hold it.

I am happy with it. I don't know if my wife or Sovay will buy me any additional gifts, or if this will be the only one, but it is certainly good enough. Anyway, I flatly forbade the two of them to buy me anything at all. Not that either of them normally do what they are told.

Camp Katrina

Camp Katrina:

Spc. Phil Van T. sent a very nice letter to request that I direct you to his new blog, Camp Katrina. "I'm a soldier in the Army National Guard, and recently returned from mobilization for Hurricane Katrina relief efforts in new Orleans. We have created a blog, www.campkatrina.typepad.com, where soldiers can share their stories and pics from Operation Vigilant Relief. I was wondering if there was any way you could mention our site or link to it on yours?"

Sure thing, Specialist. It's always a pleasure -- and by the way, thank you.

Miers

Quite a Dustup:

Looks like the Hall had a fun time yesterday. Good! Just such a hearty exchange of views is what I have in mind for the place.

It was an impressive exchange. Although some have said that the blogosphere is rushing to uninformed opinion, in fact I think the opposite is true: the blogosphere is generating informed analysis, and distributing informed analysis that arises elsewhere.

On the third day since the nomination, I find that my sense that this nomination must be defeated has only hardened. I will attempt to explain why, both by argument and by distributing analysis, as above.

The strongest argument against opposing Miers is voiced by Cassandra, couched in terms of fairness combined with political savvy. She argues that, on the one hand, it is entirely unfair to judge Miers before her hearings; and on the other, that Bush is wise not to support "the base" in this matter because it is the middle, and not the base, that elects Presidents and wins control of the Senate.

After consideration, I must reject the first argument. This is a very serious matter: a lifetime appointment to the Supreme Court, at which the most contentious issues of the next few years will be decided. We must be prepared, as citizens, to drive our representaties in the Senate one way or the other. That will require sustained pressure over time, and time is short. Once her hearings have begun, they will last only a few days; then the Judiciary Committee will vote, and then the Senate as a whole. If confirmed, she would take office the same day.

If there is to be any hope of derailing the nomination, we must begin now. We cannot wait until the hearings.

I do not mean to say that we should be unfair. Rather, I mean we must honestly begin raising and considering the problems, and applying pressure to our Senators today and tomorrow, not during and after the hearings. It is the only hope for success, should it prove that Miers is as unqualified as she appears to be. The Senate is capable of ignoring the loudest outburst, for a few days, reasoning that 'the mob' will move on. It is only if we begin now that we will have time to make them consider their duty carefully.

As for the argument against extremisim, I share it. However, I would remind Cassandra that I share her irritation -- not with the term "RINO," which she feels is being wrongly directed at her -- but with the term "DINO," which has been wrongly directed at men such as Zell Miller and me.

What "the base" wishes to advance here is a judicial philosophy that is the political center, except that most people haven't really thought about it yet. The philosophy, simply, is that "when there is a disagreement about what the law means, the proper way to resolve it is by looking at what the people who wrote it intended it to mean. If we find that we no longer like that meaning, the legislature rather than the courts is the proper venue for changing the law."

This philosophy is, I think, destined to become the standard way of reading the law, simply because it is the only one that doesn't make the law into sands that shift underfoot. It is the only philosophy that restrains the power of the court.

Restraining the court's power is one of the most critical issues facing the Republic today, because the USSC has found itself above the normal checks and balances. They may strike down Congressional laws and Presidential orders as unConstitutional. They are the final appeal. There is no counterbalance.

Furthermore, USSC solutions are by their nature fundamental -- they touch every state, Red and Blue, with no distinction. This is because the foundation of their power to reach into every aspect of American life is the 14th Amendment's approach to civil rights. All Americans have the same civil rights.

These two facts have put us in a position in which the court's power must be checked, in order to assure the stability of the Republic. Barring a major Constitutional change, the only way to do it is by appointing justices who will interpret the law as the law was written, and not as they would prefer it or according to what they feel are current conditions. They must not remake the law to mean something it did not mean before.

This is why I feel that those who insist on a known judicial philosophy are right to do so. It is true that the Thomas confirmation was hideous; but it is also true that Thomas is the light of the court. We should want more like him. We ought to have the fight, if a fight is needed to get such Justices.

So much for reasoning. Now, for dissemination:

Feddie is calling for President Bush to withdraw the nomination. That would suit me fine; otherwise, I feel we shall have to defeat it the hard way.

His reasoning is largely drawn from David Frum, who I think is correct in this case. I believe Frum's points address the ones that Daniel was capably defending yesterday and so, like Feddie, I will refer to him.

Meanwhile, George Will reminds us that President Bush knowingly signed into law Campaign Finance Reform, having admitted that he did not think it was Constitutional. That being the case, we must be vigilant against further weakness of the spine in upholding the Constitution.

I feel we have a duty before us. We must do what we can to unmake this nomination, or to defeat it. Either the President will listen to us, or the Senate must: or else, we take our chances with the foundation of the Republic.

Professor Bainbridge nails it

PROFESSOR BAINBRIDGE EXPLAINS WHY THE MIERS NOMINATION IS SOOO BAD.

Read it here. Hat tip to Feddie over at Southern Appeal.

Commentary Problems

Joel, are you able to view comments? If so, I'll just reply in there to limit the back and forth to just one of us. Since I'm here though...

I would love to see Alberto Gonzales on the Supreme Court. Even though it would handicap some of the terrorism cases, its not going to be a permanent handicap. Combine his record with the fact that he's a Texan... and that goes a long way with me.

Gonzales?

Daniel,

I wish I could post this stuff in the comments section but the firewall will not let me do it. Nevertheless, I am surprised by your claim that you would love to see Alberto Gonzales nominated to the Supreme Court. Really? You think it would be good to nominate someone to the court who would have to recuse himself from all of the terrorism cases he worked on that will be comming in front of the Supreme Court? I don't think this is the time to handicap the court with such a nominee