What One Wandering NeoCon Lawyer Can Do

June 22nd, 2008

The problem with neocon lawyers isn’t that they’re horrible per se. Some of these men and women are technically brilliant. The problem comes from the lack of a single fundamental principle or overarching concept of law that guides these lawyers. John Yoo, and men and women like him, are driven by the axiom that the “end justifies the means.” Thus, no matter what the damage to ordinary Americans, the law, the courts, or the military, if torture would “accomplish” the victory, then it should be used.

Damage?  Our use of torture against our opponents insures that torture will be used against the men and women of our armed services.  The legal concept of “illegal enemy combatants” creates a whole class of person beyond the reach of even the most basic of procedural protections.  Western Europe quite rightly sees this as a human rights catastrophe.  It significantly contributes to the ill will directed by many nations against us–we are no longer civilized.  The courts have been largely swept aside as functional checks on Executive Branch authority.  The Fourth Amendment is a thin shadow barely visible in the constitution; and the Fifth Amendment is on life support.  As a result, ordinary Americans are much less free than they were eight years ago.   And much less safe also . . .

Of course, that reveals the second neocon weakness–they’re not very good at reaching goals by any means.

Frogfoot over Persia

June 21st, 2008

Su-25K Frogfoot. Ironically, these aircraft were originally purchased by Iraq for use against Iran. Seven fell into Iranian hands in 1991 at the beginning of the First Gulf War when their pilots (along with a majority of the Iraqi Air Force) voted with their planes and sought internment in Iran over combat with Allied fighters. Apparently, the aircrafts fearsome ground attack reputation led the Iranians to not return them. Two others were downed by F-15s near the Iranian border along with two escorting MiG-21s.

Like the A-10 which has similar specifications, the Su-25K is essentially a heavily armored platform for a 30mm cannon and innumerable hard points. It first saw action in Afghanistan.

Unlike the A-10, the Su-25TM (and a follow-on variant, the Su-34) are still in production. The Su-25K is the export variant. Apparently, the Russians don’t feel that an aircraft with these sorts of close air support credentials is obsolete; unlike the USAF which shudders to fly anything without afterburners and swept wings. A-10s are kept in service by cannibalization and by remanufacturing, but there are no new A-10s and it is most unlikely–given the USAF’s distaste for this aircraft–that anymore of its type will ever be constructed.

Those who will likely face us in future conflicts are well aware of these trends; which is why they buy aircraft like the Su-25 as fast as they role off the assembly lines.

Why the “W” and Cheney will Never be Impeached

June 21st, 2008

It is ironic (intentional?) that the farce that was the Clinton impeachment has created such a distaste for impeachment as a process that some Congresspersons pursuing impeachment of Cheney and the “W” in the House privately opine that the necessary votes are not on the floor unless something truly notable occurs.

Moreover, with a ruthlessness only Ralph Nader and Bismark would appreciate, the Democrats have come to the realization that the “W” and Cheney have flopped so glaringly in leading this country that the cheapest way to run against any Republican candidate is to first run against the “W” and Cheney. For reasons that escape me (but probably involve genuflecting to the Moral Majority), Senator McCain has made this tactic even easier by binding himself closely to the military and economic policies of this administration.

I can only conclude that the Republican hate machine is so confident in it’s ability to personally destroy Senator Obama that even a mere mention of the issues will never appear.

Dr. Rice and the Impulsive Need to Spear Iran

June 21st, 2008

To illustrate just how far over the deep end (and plunging to crush depth!) Condi, Cheney, “W” and all the rest are:
“There are few nations in the world with which the United States has less reason to quarrel or more compatible interests than Iran.”
Who said it? Henry Kissinger in his book Does America Need a Foreign Policy? : Toward a Diplomacy for the 21st Century.

Now, the Neocons have long advocated a foreign policy with roots more in keeping with President W. Wilson who believed America needed to engage in a crusade to spread democracy far and wide. “Spheres of influence” conveys an atmosphere of restraint and rational thought (as in un-cooked intelligence estimates) that wouldn’t find America pushing its best and brightest out to the “point of the spear.” Dr. Kissinger has heated some of his rhetoric up, but fundamentally he remains an advocate of thought before force–not vice versa.

So, Althought Dr. Kissinger’s book was written before 9/11, it’s comments–especially concerning Iran–remain valid. The only way the world changed after 9/11 was in our tolerance (actually, the lack thereof) for the Taliban in Afghanistan. Regrettably, in total disregard of appropriate military and geopolitical theory, we have failed to destroy the Taliban, we have diluted our efforts everywhere on a whim, and we have changed places with the Taliban as the most disliked rogue state. The only way we could magnify our failure is to spread this war farther.

Iran is peopled by citizens who actually like Americans. It is true that the leadership of Iran is another matter, but it is also true that this self-same leadership is running into the limits of their power. Even more so than Cuba, if we really wanted a democratic ally in Iran, all we would really have to do is complete normalize relations–the desires of the populace would do the rest. But it appears that the Neocons need Iran now (as they needed Cuba in the Cold War) as the hated face of radical fill-in-the-blank. The saber rattling will continue.

And so, onward we march to infamy . . .

Disney/ABC and the Gold-Plated World of the “Path to 9/11″

June 21st, 2007

We have come a long, long way from time when content produced by entertainment networks could in any way be considered: 1) politically neutral; and 2) factually accurate. Neo-Conservatives have long railed that the “liberal media” has distorted both the news and the facts. I will give this to the Neo-Cons-they are partially right. Distortion of the news and the facts is now accepted practice in the entertainment industry. However, the motivation for this distortion has nothing to do with some supposed “liberal” bent of the major networks, and these entertainments networks no longer are “media” in the sense that any sort of responsible journalism is taking place. They are pure, money making enterprises that are as cold, calculating, and loose with the truth as an Enron accountant.

The “Path to 9/11″ is a perfect example of the corporate desire in the entertainment industry to put profits over anything else. As the Germans would say: “Gelb uber Alles”-Gold (Money) over Everything (the World). This epitaph should be etched in the boldest relief on the entrances of all the private networks’ corporate headquarters.

It used to be standard practice when making any sort of documentary about still-living people to provide these persons with a pre-production copy. After all, as CBS found out during the litigation over its Westmoreland documentary, you might get sued by a public figure if the assertions you make are not backed by the facts.

Apparently, Disney/ABC is blissfully unaware of the several million dollars CBS lost in defending that action, for no member of the Clinton administration portrayed in “Path to 9/11″ has been provided such an advanced copy. However, Rush Limbaugh has a copy, and I’m sure if you flash Moral Majority or Neo-Conservative credentials, you could get one too.

While it would be easy to right off the protests of members of the Clinton administration as partisan politics, respected historians, starting with Arthur Schlesinger, have come out against the “Path to 9/11″:

We write as professional historians, who are deeply concerned by

the continuing reports about ABC’s scheduled broadcast of “The Path

to 9/11.” These reports document that this drama contains numerous

flagrant falsehoods about critical events in recent American

history. The key participants and eyewitnesses to these events

state that the script distorts and even fabricates evidence into

order to mislead viewers about the responsibility of numerous

American officials for allegedly ignoring the terrorist threat

before 2000.

(Letter to Robert Iger, by Arthur Schlesinger, et al.) The truth is a dangerous thing. The careful observer might even learn what it is. But it is impossible to be careful on a steady diet of Disney/ABC.

A Missile Shield is an ABM or It’s Worthless

June 21st, 2007

Since Ronald Reagan, the Republican Party has been welded at the pelvis to “Star Wars” and its promise of a MAD-Free world-at least for the United States. Although many technologies have received exceedingly generous funding to date, only missile systems are anywhere near mature enough for fielding. President “W” Bush, feeling the zenith of his powers immediately after the 9/11 assault, immediately wedded “Star Wars” to a new role-saving us from nuclear terrorism. The technological problems are, if anything, even more daunting, and once again, only missile systems are anywhere near being fielded.

Missile defense systems are a relatively old idea in nuclear weapons history. The Shrike and Sprint ABM system of the late 1960s was also advertised as the panacea that would remove the threat of MAD-Mutual Assured Destruction. Fortunately, the U.S. and the U.S.S.R. signed an ABM Treaty rather than fully deploy their respective systems.

Signing the ABM Treaty was the right thing to do then, and reaffirming it (instead of abrogating it like the current Administration has done) would lead to a more stable world. Continuing on the Administration’s current course will ultimately compel both Russia and China to re-join the thermonuclear arms race in a measure counter-measure duel that is anything but stable. Moreover, it will have zero net effect on nuclear terrorism.

It is seductive to avoid MAD, and even more seductive to do so in the name of “fighting terrorism.” However, the technical problem for a major nuclear exchange and any ABM system remains the same one as it was with Shrike/Sprint-target saturation. The Russians are quite right to point out that they can modify or field new weapons that will easily overwhelm (by shear numbers and by countermeasures such as decoys). The same is true of all the other nuclear powers.

Also, these systems always have weak spots. Most ground launch systems don’t do well against relatively low trajectory weapons like those launched from ships or submarines-there simply isn’t enough time of flight for the ABM system to react and destroy the weapon before it detonates at its target. Other technologies (lasers, etc.) have their own weakens too. Any opponent is going to seek to tailor its delivery platforms to exploit those weaknesses. Operating on the blind faith, as this current Administration does, that no one will ever discover what those weaknesses is flat self-deception.

These systems also are nearly worthless to fight terrorism. Name one terrorist group (besides the North Koreans-who after all are a nation state), who have an IRBM or an ICBM at their disposal to launch a “Weapon of Mass Destruction” at us. Reality is that terrorists would use other delivery platforms that don’t rely on missile technology, but are also by definition immune to the “Shield.” Delivery platforms such as general aviation aircraft or placing the weapon in a shipping container.

North Korea isn’t even a good excuse for the “Shield.” Here the problem is threat analysis-who would the North Koreans want to target with one of their limited number of nukes. I submit that it doesn’t take much historical or personality analysis of North Korea to realize that Seoul and Tokyo are considerably more likely targets of North Korean aggression than we are.

So what’s wrong with junking MAD? MAD simply means that rational actors on both sides of a nuclear exchange wouldn’t employ their weapons because there would be no winner-the political aims that would be supported by using nuclear weapons would be valueless because much of both countries in such an exchange would be exterminated. But when you throw in an ABM system, the simple calculus of MAD becomes a complex and ever-shifting calculus of measure counter-measure. Both sides in a potential exchange, as they grow more confident in their ABM systems, begin to make calculations on whether “victory” is possible in an exchange (by intercepting more warheads than your opponent-preferably all of them). Such a calculus is inherently unstable because it changes fluidly as tactics, technology, and politics change. We should very much fear living in such a world.

As a result of our Administration’s ignorance of these realities, they will directly and/or indirectly bring about a nuclear exchange in my lifetime. Just what I wanted to leave my children . . .

Why Johnny Still (after all these years) has Trouble Reading

June 21st, 2007

Boys face a large number of challenges to learning early in their lives that make school more difficult than it should be. I will address seven reasons why boys struggle more than girls in elementary school.

I. Few Adult Role Models. If you go to any typical elementary school, you will be struck by how few male teachers (excluding P.E. teachers) there are compared to the proportion of boys in the school population. This imbalance, meaning many schools have no male teachers, sends a powerful message early on to boys that women and girls are successful in school and boys are not. There is a strong bias that men teach high school and woman “nurture” in elementary school. Until this preconception in hiring practices is sent to the waste dump of history, it will be one reason boys will continue to struggle in elementary school.

II. Behind Girls in Maturity. On average, boys are about 2-4 years behind girls in social maturity. The net effect is that boys are almost inevitably the trouble makers in female-led classrooms. This means that the female teacher’s primary focus with many of her male students is discipline. At the same time, because her girls on average are less of a problem for her in elementary school, teachers can spend more quality time with female students.

III. Social Expectations are Stricter. Boys grow up in a straight jacket of social expectations in which they are quickly pigeon-holed into one of the many sports, into aspiring to be machinists and the like, or into going into one of the traditional male-dominated service professions like police, fire, or the military. Right away, you’ll notice that none of these are particularly academic in character. In fact, boys receive a lot of messages growing up that academic learning will hurt performance if you want to be, say, a professional football player. This creates a built in incentive early on to tune out female teachers.  It hurts even more, when the truth is out–exceptional academic ability is often found in outstanding performers in every field of human endeavor–including sports.
Meanwhile, until girls reach puberty, they’re less under the social microscope. In elementary school, girls get to experiment and challenge themselves much more than boys do. After puberty, the roles are reversed, but that is another topic.

IV. Peer Pressure Stronger to Consider Schools as Hated Places. If you go onto a playground at a public elementary school during recess, and you ask a group of boys if they like school, inevitably they will all say that they hate it. Male peer groups in school teach boys early on that school is a jail that you escape from; not learning anything in. School takes away from time that could be better spent on the practice field, the baseball diamond, or the court getting ready for the pros. Never mind that any particular boy’s chances of making the pros in any sport are infinitesimal. At this age, boys don’t really have a conception of what a vanishingly small chance is, and the media they watch and listen to make professional sports sound just like Horatio Alger stories of old.

V. Take a Little Longer to Read Proficiently. Through grade four, the best readers in an elementary classroom are almost always girls. Dyslexia and other reading/learning disorders follow the “Y” chromosome much more often than the follow the “X”. A boy afflicted with one or more of these conditions has a near vertical wall of achievement to scale to become proficient readers-and many never make it. With the relative lack of maturity that the average boy has, comes a short attention span that hinders his powers of concentration and impairs his mastery of decoding essential to reading. Reading isn’t “cool” and so there is peer pressure to avoid an activity viewed by boys as “girly.” Finally, how often does a little boy see his dad read? Unfortunately in this country, young boys often have no good academic role models at all in their lives.

VI. TV/Video Games. The correlation between reading and academic success is very high by any measure. But reading is an activity that takes time and repetitions. Neither time nor repetitions are available after young boys spend between 4 and 6 hours combined watching TV and playing video games. With the 6 hours he’s already been in school, literally half his day is gone and he’s now ready to eat a lot of fatty food and get some sleep to repeat the cycle again. No time equals no reading equals no academic success.

VII. The Culture of Defeat. If you listened to Rap music day and night, you might stop reading too. First, it’s yet more time taken away from reading since the iPod at maximum volume playing Snoop Dog’s latest siren songs is not conducive to the concentration needed to also read. Second, the very lyrics of these pieces paints a picture of reality for boys that states the following pillars of “truth”: 1) you’ll be dead before you’re thirty; 2) nothing they teach you in school will help you on the streets; 3) school is a prison, and you won’t be a real man until you graduate from a real prison; 4) violence solves all problems quickly and neatly; 5) women and cars are play things with about equal standing in life-they are items to be acquired, driven hard, and disposed of for a new model; and 6) if you want to be really cool and make big money, go to jail and walk out just like me-the big rapper. If you listen to boys on elementary playgrounds today, you will be surprised and shocked by the depth to which boys have internalized these values. Moreover, boys see that these are mainstream pillars of “wisdom” also internalized by all of their sports heroes.

Rather than face up to these realities and change the environment, the culture, and the expectations of boys in elementary school, we almost literally throw them under the bus.

Guantanamo Bay is a Ship’s Anchor Around Our Necks

June 21st, 2007

There is a well-rehearsed bias that claims that liberals are “soft” on what ever matter Republicans want some leeway on at the moment. I am a liberal, but I am not “soft.” Guantanamo Bay is a prime example of what is wrong with our counter-terrorism efforts and why the Republicans have dragged this nation head long, against all odds, into losing the fight against terrorism.

One justification for Guantanamo Bay is that it is needed for “intelligence” purposes. If that is so, our intelligence is years out of date. For if we depend on the knowledge of men incarcerated at Guantanamo, we our fools. If the prisoners tell us the truth, events will already have overtaken what little they know. If the prisoners lie, we really don’t have a context to measure their knowledge against. It is therefore useless as an intelligence asset.

Another justification for Guantanamo Bay is “justice.” That would be fine if we adjudicated them rapidly, but reality is far from justice. If Guantanamo were Nurenburg, Goering would have died of old age instead of killing himself on the eave of his execution. And at least the Nazis got some semblance of due process. If you’re Arab and incarcerated it’s just too bad. Ironically, the military tribunals that were supposed to facilitate rapid processing have done just the opposite. At least in a traditional federal criminal court, there would have been a speedy trial rule compelling the trial to move forward within 180 days. No such luck if you’re a prisoner at Guantanamo. I like my justice served “cold” with a swift dose of due process. Convict or acquit, jail or execute the guilty, release those acquitted. It sounds pretty simple, but the fiasco at Guantanamo is not serving out justice, just expensive time.

The final justification for Guantanamo Bay is “safety.” Minor problem-Guantanamo Bay and are other misguided actions in the world have, by the latest intelligence estimated, increased recruiting for world terror. We’d be safer if Guantanamo had never been.

So is this “soft?” Only if you consider recruiting Arabic and Farsi speakers (instead of driving them away in fear or into the arms of our enemies), “soft.” The reality is that our intelligence “challenges” have a decades-long history of neglecting human intelligence resources while over-spending on signal intelligence. The best strategy would be to “penetrate” these organizations with willing Arabic and Farsi speakers and then “devastate” them at the time and place of our choosing. This would be the razor-sharp edge I would deploy against terror. Instead, we play a deadly (for our troops) game of blind-man’s-bluff in the streets of Iraq.

Is it “soft” to try accused criminals and punish the guilty while releasing the innocent? Only if you completely despise the rule of law. In which case, the terrorists have already won.

Is it “soft” to seek the implementation of a program that really tears the heart out of terrorist organizations? Only if you’re a Republican too feeble to realize how close to the abyss our President has dragged us.

To the contrary, it is “hard” in the Republican sense to engage in acts that the rest of world calls torture. “Hard” like re-bar. “Hard” like a plank. “Hard” like a Belgian Sheep Herder licking at someone genitals. It will take decades for us to recover from Republican “hard.”

Opt-In Registration for Organ Donors Makes Sense

June 21st, 2007

There is a shortage of suitable donated human organs in both quality and quantity. This shortage ranges from blood and skin to kidneys and hearts. Now a capitalist would say that we could create a “market” in these organs and that would increase the supply, but very few people in the Western world believe that it is ethical to do so.

It is not necessarily true that a person’s organs decay with the body after burial. In the United States, because of the funeral industry, most Americans are buried embalmed. In the process of embalming, many organs are destroyed or removed in the preparation of the corpse. Many, many people would be surprised with how little of the deceased actuals gets buried. The rest just gets disposed of at the discretion of the mortician.

When you couple this with the death rate on our nation’s road ways, a tremendous amount of usable tissue and organs is simply going to waste. Opting out on organ donation registrations would certainly improve the supply.

Opting out is not at all unusual in daily life. The doctor does not ask “would you like a blood transfusion” after your auto accident. Rather, the emergency room doctor will give you that transfusion unless you declare you have religious objections to receiving a transfusion. On the TV, no one asks you if you want to opt out of commercials. To the contrary, you need to buy additional hardware so you can “bleep” them out. And at the funeral parlor, no one will ask you if you want a Catholic funeral mass. They only way you’ll get one is if you demand it and make arrangements with a priest yourself.

At least with organ donations, you could simply indicated your desire not to with a check mark on a form. Surprisingly, that simple check mark is the major cause of our organ shortage. People are filled with misinformation about organ donation, but many are not per se against it. They just can’t be bothered. So like the robbery victim lying in the middle of the road, organ donors wait for the Good Samaritan to come, but for many he comes too late.

The Futility of Mandatory Prenuptial Agreements

June 21st, 2007

Prenuptial agreements carry such power to gravely wrong a weaker party to a marriage, that most courts will go out of their way to void them.

This tendency to become void creates unique problems for prenuptial agreements. First, attorneys with any functional neurons are loath to draft one since the affect on their malpractice insurance is second only to writing wills. To make it crystal clear, attorneys regularly get sued for malpractice over both prenuptials and wills. The reasons for this are obvious. Both marriage/divorce and death are emotionally charged events. People who are disappointed during these life-changing events tend to be very, very disappointed. In fact, they tend to be so disappointed that they are willing to take out a big chunk of change to pay another attorney to “get even.”

So, you might inquire, why not just skip the attorney and draft it ourselves? Well, here we come to the favorite reason judges void prenuptial agreements. It is common in many states that a prenuptial agreement will be void if the weaker party to agreement has not been expressly given the opportunity to have a lawyer review the agreement. In fact, just recommending “go see a lawyer” isn’t good enough for most judges. The courts expect that an appointment with an impartial attorney be made at a time convenient to the weaker party. If he/she blows off the appointment, shame on them. But if the stronger party doesn’t set him/her up with appropriate counsel, the prenuptial will hit the trash can “void.”

Secondly, the weaker party has enforceable rights by statute and/or by common law in most jurisdictions, and most courts are going to treat any agreement as “illegal” or “pseudo-illegal” since it is an attempt to deprive the weaker party of his/her guaranteed share. For example, in all community property states, the weaker party’s share defaults to 50%. Even in separate property jurisdictions, most of them have adopted some form of the model divorce code that provides for “quasi-community” property that effectively creates nearly a 50% share in most cases. Any prenuptial agreement that strays far from these legal guarantees is going to be voided.

Third, the courts will work hard to find a lack of consideration being exchanged by the parties for the prenuptial agreement. To put it another way, generally the stronger party gets all the benefit, and the weaker party carries all the risk. Since such agreements tend to be strong armed and not negotiated at “arms length,” the courts are again loath to enforce them. Moreover, because of the emotional state of one or both parties at a marriage (somebody is usually very, very happy), the courts will sometimes say that no “meeting of the minds” on the agreement was possible.

So what about all those prenuptials you hear about? Well, the rich and the famous really do live in a different world when it comes to dissolution law. Generally, the courts rationalize by saying that both parties were knowledgeable enough and had enough of their own resources to make such an agreement fair. But even then, a prenuptial agreement is a risky document barely worth the paper it is written on.

In the real world of ordinary people, prenuptial agreements are worthless. Requiring them in all marriages will have the opposite effect intended. Instead of streamlining divorce, it will create one more matter for both parties to throw huge sums of money at while venting their rage. It will also create guaranteed income for any attorney with no malpractice insurance and only half a brain.