The Declaration of Independence

Source: Our Founders, linked from Indiana University School of Law

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us, in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Ruling through fear

The first sentence, from the Yahoo! article: "The White House said Thusday that dangerous detainees at Guantanamo Bay could end up walking Main Street U.S.A. as a result of last month's Supreme Court ruling about detainees' legal rights.

Then, to further drive in the point, lest we didn't get it clearly enough, White House Spokesperson Dana Perino states: "I'm sure that none of us want Khalid Sheikh Mohammed walking around our neighborhoods."

All of this is in reference to the Supreme Court ruling in Boumediene v. Bush, which did not release any detainees at Guantanamo Bay. Instead, what it did was allowed those detainees the rights of habeas corpus, a Constitutional guarantee, where they could challenge the legality of their detention before a court instead of an ISRT. But that's not what's important, at least, not to the White House. What's important is that we have something we can use to attack the "Activist Court," and prey upon the fears of Joe and Jane American, who may believe (and I'm sure there are already several blogs echoing this charge) that all the detainees there are terrorists who have tried to kill Americans or will absolutely do so the first chance they get.

Here's the thing, though. The detainees are challenging the sufficiency of their detention - they are in fact saying they are innocent. And they might be. And if they are innocent, then would anyone really have a problem with them walking down Main Street U.S.A.? And more to the point - if they are innocent, then at some point they would be freed anyway, presumably, and then would be free to roam across America. Unless, and this could be the case, the White House intended to hold them until they died and just never give them the opportunity to walk across America. But that's OK, because they get three squares a day, medical care, and get to read from the Qu'ran, so they should be happy.

What I find interesting is the timing of the article. The attack on our sense of security, what one might refer to as a "Rovian" tactic, comes right on the heels of the announcement that a former Karl Rove assistant will be taking charge of day-to-day operations of McCain's campaign.

You see, you can't attack a candidate as being soft on terror until you remind people that we're just a moment away from a "Mushroom Cloud." I'm not saying that the two incidents are connected; I'm just noting there's a very interesting timing in the press release and the appointment of a 2004 campaign staffer...

About Joe Horn's Grand Jury

To put it simply, here's why Joe Horn's case did not get past the Grand Jury: It was not a trial the D.A.'s office could win.

It's really that simple, though to understand why takes some explanation.

The purpose of a grand jury is to determine whether or not sufficient evidence exists to try a case. How much evidence is needed? Not much - this is not a guilt/innocence hearing, it's a procedural hearing that determines whether or not the charge will go to trial. This means that the standard of proof is lower, much lower. In fact, the defendant is not authorized to present evidence in his or her defense at a grand jury hearing, though sometimes they are allowed to do so.

What happens is that the D.A.'s office presents the case to the grand jury in it's best light. The grand jury considers the information, and, under most circumstances, presents an indictment (this is because generally the D.A.'s office will not present before a grand jury unless there is enough to secure an indictment).

Sometimes, however, a grand jury is convened for a case that the D.A.'s office does not want to try. Why would they do that? Consider a situation where there is no real crime, but there is a lot of public outrage. Or, consider a situation where there may be a crime, but it's pretty clear that the person being charged did not commit the crime based on what the D.A.'s office receives in evidence but the People have already made up their minds in the Court of Public Opinion. In situations such as these, the D.A.'s office will bring the accused to the Grand Jury and present a case, not necessarily a strong case, not necessarily a weak case. Sometimes, they might allow the accused to present evidence or tell his or her side of the story. The grand jury hears the evidence, and determines what the D.A. already knew - that there is little to no chance of a conviction for violation of the law, and rejects the indictment.

This is almost certainly what happened in Horn's case. The D.A. saw the evidence, knew the odds of successfully getting a conviction, and determined the potential reward (conviction) was too hard to reach to justify the expense of a murder trial. It also knew the public outcry if it (the D.A.'s office) simply dropped the charges. Letting the Grand Jury refuse the indictment helps keep the "rabble" satisfied that they at least tried, and then the outrage can go to the process - injustice happened because the "system" is "broke."

SNL- Blizzard Man

This probably shouldn't be funny, but it is.

Furniture shopping

Last year, we bought new sofas, because our old one and our recliner were pretty much dead to the world; the cats had scratched them all to hell, the kids had written, spilled food and drink on them, and they just did not hold up well to the rigors of being the the Binjo Ditch.

So we got new sofas 6 months ago. And the cats have scratched up the side of one of them. I hate our cats. But I digress.

We went to the Dump for our furniture. I would say that the Dump was pretty good. The sales staff was a little more sharkish than I like - when I say I'm not interested in buying, that means I don't want you to keep haranguing me; you let me shop, and when I am ready to talk, I will seek you out. But the prices were really good. We liked the quality, and the furniture has held up well to the kids, though the damn cat scratched up the back of the one; stupid damn cat. But I digress.

We're currently shopping for a bed for the Princess and a futon for the gameroom. We are probably going to find our way to the Dump tomorrow to see what they might have to offer. We actually went to the Room Store today and saw the same sofa combo that we bought last Christmas for about $300-400 more than what we paid. The service after purchase was excellent, too. We were happy with the sales staff and the delivery.

Anyway, that's what's going on at the Bingo Ditch today. Time for some sleep.

Advice for the July 2008 Bar Examinees

It's almost July; the exam is coming up in about a month. Some of y'all may be getting stressed, particularly about practice exam/simulated MBE scores. First off - the simulated MBE is to give you an idea of what the exam is like and to kind of remind you that this is coming up. Keep studying your rules of law, and you will be fine.

Remember, the exam is there to test how well you can spot issues, state the rule and apply it (this is your IRAC in action). You have to be able to keep your thoughts organized - take your time and let the answer come out. Don't panic. So long as you've studied, you should be fine. The exam is designed to be difficult, but passable. The idea is that you need to put in the effort to prepare for it. Remember that, and remember that you already learned most of this in law school and you're just refreshing your mind while studying for the bar, and you should be fine. You still need to actually study, though. That part is tough to pass by...

I can't tell anyone "how" to study for the bar exam. Everybody learns their own way. I can tell you what worked for me, if that gives you a launching point for your own preparation after BarBri ends.

Photog and I studied together. We went to BarBri together, then went to the school and studied together. One thing that helped us was that we were able to find a room where we could speak to each other without worrying about disturbing others. This way, we could go over practice questions and exams and discuss the answers to reinforce what we were learning. We actually chose the International Law Society office at STCL because we knew we would be able to study and still have things to take the focus off our stress.

We would start the day by doing about 30-50 multiple choice questions, either from the Barbri software or questions from other exam sources. We would read 10 questions, we would both come up with answers individually, then we'd share our answer. If the answers did not match, then we would "sell" our answer to the other before we checked the answer (on the software we usually did this one question at a time). After we checked our answer, we made sure we understood the reasoning for the answer, particularly if we got it wrong, or if we got it right but only because we guessed the correct letter. Attention to detail counts here. Read each word in the question and answer. Then we'd take lunch.

After the MC questions, we would start on the essays (should be the yellow book). Again, we'd read a question, come up with an answer, explain the rule of law, and support our position. For these, we usually were pretty close with our answers, but our reasoning might differ slightly, except in the situations where we simply had no idea about the topic of the question (this will happen - make sure you make note of it and keep going - don't get bogged down). We would do this for 3-5 hours, usually getting through 3-6 essays (don't worry about speed, which will come, worry about getting the rules down). Then it was time for coffee and coca-cola breaks.

Then, depending on our energy level, we would consider going over the Procedure and Evidence questions - you want to do these a couple times, just to make sure you're comfortable with the questions - there's a limited number of questions that they can ask, so you should have little trouble getting these in your head.

One of the things that we had to do was keep something around to occupy ourselves - we had toy swords and a Nerf ball that we would bat around, and a yardstick we would balance from time to time. I find that I need to keep active while I'm studying, it helps me focus. This is certainly not for everyone and if you are studying with anyone, make sure that your study partner is of similar activity requirement.

Finally, keep your sense of humor, don't get discouraged - you know the information, you just need to practice getting it out. Like I said before - the exam is there to challenge you, not to try to fail you. If you ever need any bad jokes to ease the stress, I may know one or two.

So, we're homeowners

We closed today. The process was rather painless. The 2 1/2 hours of work, though, were not. I'm pretty sure every angry client that we have called today and asked to speak to me. But I digress.

We have a really nice 4, 2 1/2, 2 in a MPC north of here. It's really beautiful, the neighborhood is nice and quiet, and the previous owners took great care of the place - it had been purchased as a foreclosure and they renovated it like mad.

Eventually, once we're all moved in, we'll have a little get-together, perhaps I'll make Bulgoki and even let cat bandit have some. I'd tease her, but she's in the middle of bar prep, and that's a rather stressful period for any law school grad, so instead, I'll wish her good luck.

The Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Supreme Court held yesterday that Washington D.C.'s ban on handguns served as an unconstitutional infringement on the right to keep and bear arms. There are those who laud the decision, thinking it is essential to helping us defend ourselves from our government and/or those who may enter our homes. There are others who think this is absolutely the wrong decision, and that the Framers could have never intended that there would be an absolute ban on regulating firearm ownership.

I think this is the right decision. More on why at a later time.

Soon to Come

A recap on the Supreme Court decision overturning capital punishment for child rape.

But not tonight. I'm tired and don't feel up to reading the opinion.

Long story short - I agree with the Court's decision, though I don't know what the opinion is or how they got to it - in other words, I like the outcome, though I can't say whether or not I like the path leading to it.

Yu-Gi-Yoh!

To many children in America, and probably the world, Yu-gi-yoh means a customizable card game and/or a television cartoon showing people playing a customizable card game. However, Yukiyo in Korean translates literally as 6 2 5. This is in reference to June 25, the day the Korean War began. On this day, 58 years ago, North Korean (DPRK) soldiers crossed the 38th Parallel and invaded the South. After 3 years of fighting that saw about 900,000 Chinese, 520,000 North Korean, 400,000 UN and ROK and 155,000 US soldiers killed or wounded, the sides agreed to a cease-fire (not a peace treaty) and remain at war, separated by a small demilitarized zone. Several incursions and soft invasions have occurred since that time, but at no point has the invasion recommenced.

One of my most vivid memories of my time in Korea was when an elderly Korean gentleman stopped me and thanked us (the U.S. soldiers) for helping to keep him and his country free.

Take a moment to think about those who gave their lives answering the call to protect those who could not protect themselves from a real and existing invasion, protecting them from the yoke of tyranny.

Stress Level picking up

We've had a busy couple of weeks. We are scheduled to close on Friday, which means one stressor will be past us, immediately replaced by new stressors - namely, buying furniture, moving, setting up daycare, and getting utilities started.

Work is picking up as well. Deadlines don't change, but psychotic (in the literal sense) clients can - they move, they don't answer calls, they leave cryptic messages that nobody can decipher, etc. On top of that, we're inundated with calls right now from clients who are busy asking for attorneys to answer questions that the paralegals are perfectly capable of answering (and have already, in many cases). The problem is, the clients many times don't listen to what anyone says unless the person talking is a lawyer. Even then, in many situations, the clients won't listen, but by that time they've wasted several peoples' time, not just one. But I prattle on.

I hear tell that genetic engineers are working on a Canteloupe/Cauliflower hybrid. They're going to call it a Melon-Cauli.

Presumed Innocent

Let's pretend for a moment that you are a detainee in Guantanamo Bay. Let's also presume that you are not an enemy combatant. Let us further assume that there is no dispute between yourself and the U.S. government that you have never fought against the U.S. government and there is no evidence available that you intended to do so.

Would you feel vindicated simply because your status as an enemy combatant was thrown out at trial? Or would you rather have had the Constitutional protections in place to challenge your detention from the outset?

There are bad people at Guantanamo Bay. There are enemy combatants. There are terrorists who want to attack the United States and her allies. That is not in dispute. What has been in dispute is the mode of classifying individuals as enemy combatants. There are about 270 there now who had been so classified under the CSRTs that were recently declared unconstitutional. Prior to the CSRTs, the number of detainees was over 400. The necessary implication, of course, is that people are not "enemy combatants" simply because the Government said they were; and the CSRTs did go to some degree of protecting them at that end. However, that the protections afforded were insufficient to meet habeas corpus (the right decision, FWIW), the status of the others who DO challenge the validity of their detention is an issue; and that at least one of them has won a victory against his classification, whether it be related to Boumediene or not, shows there is still a LOT of room to go.

I could not imagine being detained indefinitely as an enemy combatant by a nation that conceded it had no evidence of my being or intending to engage in combat against it. Thank goodness I do not live in a nation that does that (in theory).

Rest In Peace

George Carlin passed away. He was 71.

He may be best remembered for his "7 dirty words" performance. I first remember him from Bill and Ted's Excellent Adventure. I also am a fan of his performance on Dogma.

He was a hard working actor, and his humor will be missed.

I'm not sure you need the context to appreciate the humor of this statement:

"So I said to myself, 'Am I having a heart attack? Nope, it's just a pimple.'"

Tag!

It's been a while since I've been hit with a Meme. I can't actually say as I remember the last one that got to me. Therefore, it was a bit of a surprise when Bookworm stopped by and tagged me, though a welcome one. Here are the rules:

1. Link to your tagger and post these rules on your blog.
2. Share 7 facts about yourself on your blog, some random, some weird.
3. Tag 7 people at the end of your post by leaving their names as well as links to their blogs.
4. Let them know they are tagged by leaving a comment on their blog.
5. Present an image of martial discord from whatever period or situation you'd like.

Let's get started:
1. I've gone skiing one time. I'm pretty sure I dislocated my thumb, though I never went to the doctor about it. I spent the day with a giant tear in the crotch of my trousers, and didn't realize until about 30 minutes before we left the park.
2. Technically, I have traveled to or through 26 states. I say technically, because I don't know if you can count Colorado (at the Denver Airport), Nevada (at the Las Vegas airport, though I was there long enough to lose $20), or when I "went" to Maine - we were trying to go to my friend's friend's house for a party in New Hampshire, took a wrong turn, and crossed the bridge into Maine, turned around and went right back.
3. I am a Plaintiff's lawyer by trade, but not necessarily by desire.
4. My wife and I were writing partners in English class in 1987. We didn't know we would end up married at the time.
5. I once thought I killed a cat by driving over it on the way to an ice skating rink with my sister and two of our friends. The laughter from the fact that we didn't feel a bump and therefore thought we dragged the cat on the road was not intentional, but more circumstantial. On the way back home, nobody said anything for about a 2 mile stretch where we were expecting to see cat guts all over the ground. The laughter that came from not seeing anything was huge, and full of relief.
6. Sometimes while in law school, I wondered if I was going to school for the same reason Bernice bobbed her hair. I think I had a different motivation.
7. I am an 8 year veteran of the Air Force.

Now, the image of martial discord, from my trip to New Orleans last year in January, a picture I took in the lower 9th Ward:


For those I tag, I'm going to go with the Family and Alumni +1 approach:
1. One Step Sideways
2. Raise Your Hand If...
3. Jack's Mama
4. Rambling Photos of a Life Lived (who's been rather busy living life, and may not have time for twaddle like this)
5. Red Hot Mamma
6. Cat Bandit
7. Vim and Vinegar

Ahhh, Discovery

One of the problems with denying information is that eventually, the information will come out. Ford had the Pinto memo (a cost-benefit analysis comparing the price of paying wrongful death claims for the Pinto against the cost of fixing the defect). Nixon had the Pentagon Papers.

The current executive branch, or what's left of the leadership from 2002, has its own information - such as the advice of a CIA lawyer advising that "if the detainee dies, you're doing it wrong," or that torture is a "matter of perception."

My understanding, as I was taught during Basic Training, was that if it was torture, we didn't do it. Torture was something "they" did. We were above it. We didn't interrogate outside the accepted practices of international law or try to find loopholes in the Geneva Conventions, because we were better than that. We were the standard bearer, the shining example for the world to follow.

There was no perception. There was no tipping point for right or wrong based on survival rate. But that was before detainees were guilty by suspicion, before civil liberties and the Constitution could be put on hold in the name of "security." Before Bush and company.

I wonder, will any of these individuals go to jail like Lynndie England? Or has the scapegoating already taken place?

Pure Chance

Stories of "what are the odds" always interest me. This one, involving the 1997 Michigan Football season is no exception. The sign stealer from Northwestern and one of the student managers for Michigan who caught on that someone was stealing signs met in Colorado, where neither was native, article from the Detroit Free Press. Definitely an interesting read.

Knowledge

You might think that what you know is simple to define - that is, the information that you are able to recall from memory or experience, or something to that effect.

Of course, as with so many things, the legal definition of "knowledge" differs from what one might consider a more conventional definition.

Legally speaking, there are different types of "knowledge." There's "Actual knowledge" which is what you know directly and clearly. There's "Personal Knowledge," which is knowleedge gained through firsthand observation or experience (as opposed to beliefs based on what others have said). There's imputed knowledge, such as the presumption that the agency is aware of the dealings of its agents.

There are other types of knowledge, but what I want to focus on is Constructive Knowledge. Constructive knowledge is the type of knowledge that one using reasonable care or diligence should have, and therefore is attributed by law to a given person. Basically, what this means is that it's stuff that you "should have known," that the law determines you are responsible for, even if you don't know. One example of this would be warnings. Every year, several letters are sent out by pharmaceutical companies to doctors all over the country. These letters contain warnings that certain medications have been linked to some side effect that was not listed in the Physician's Desk Reference, or that was unknown when the FDA granted approval. This letter, known by some as a "dear doctor" letter, serves to give these doctors constructive knowledge of the side effects, in theory.

Why do I waste so many words to mention this? Because this concept of constructive knowledge, or "should have known," has applications all over. An enlisted person cannot avoid liability for violating the UCMJ or a military or base regulation simply because he or she didn't "know" about it - they should have known. If you are driving in a town you've never been to and see a purple traffic light, the purpose of that color is described in the town, and you are presumed to know what it means.

The same should hold true for our military. When military lawyers warn the Pentagon that interrogation techniques they are looking into may be illegal, then the DOD should know that they need to tread carefully, and to look into the legality of the issue, rather than dive in with reckless disregard for the law. This knowledge should also be imputed to the leadership of the DOD, such as the Secretary of Defense, the President, and others. It's no wonder Senator Lindsay Graham (R-S.C.) referred to this situation as follows: "The guidance (administration lawyers) provided will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation's military and intelligence communities." We're talking about liberty, and sacrificing oversight concerning legality and individuals' liberties because there is a "high degree of urgency," as Pentagon office of general Counsel William "Jim" Hayes stated is wrong, particularly in light of his trite explanation that he was unaware of the concerns over legality (see "knowledge" - above).

Someone should have to answer for this, and heads should have to roll.

Suspending the Writ

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (Constitution, Art. I, Sec. 9, Cl. 2).

Some people don't seem to understand what this means. I have read and heard more than one person suggest that because Al Qaeda attacked the World Trade Center in 2001, we are under invasion. This is not true. But even if it were true, it would be a moot point, because the public Safety would not require suspension of the Writ (to this point, the Government didn't even offer the invasion theory as an argument in favor of denying the writ to the detainees, rather they merely said the Constitution doesn't apply to those detained by our Government).

Let's see if we can break this down a bit, so you can follow along at home. First, we need to consider the argument - that we have been invaded. While one can easily point to the words of the President and those who support him on this war on "terror" and show that we are fighting them abroad so that we don't have to fight them here, let's delve a little deeper. Black's law dictionary (seventh edition, which is the most recent edition I have) defines invasion as: 1. A hostil or forcible encroachment on the rights of another (not applicable to our discussion), 2. The incursion of an army for conquest of plunder (definitely applicable to our discussion), 3. Trusts. A withdrawal from principal (metaphorically speaking, and also not pertinent to the discussion). It should be clear from the plain language of the definitions provided that the second definition is the one with which we should concern ourselves.

There are two prongs to this definition - the first includes the incursion of an army. 19 individuals hardly qualifies as an army, though they are tied to a network with a common goal, so perhaps, in the light most favorable to the apologists' position, one could construe Al Qaeda as an "army," though this is a stretch, because traditionally, armies have been tied to a country. The second prong, "for conquest or plunder" is the key to the definition. It is quite clear by the nature of the attacks (suicide missions) that the attackers did not intend conquest (Conquest, according to Black's Law Dictionary, is "An act of force by which, during a war, a belligerent occupies territory within an enemy country with the intention of extending its sovereignty over that territory. [emphasis mine]), and, just as clearly did not plunder (see "Pillage - the forcible seizure of another's property"), as they did not seize the property (Seize: "To forcibly take possession"). Looking at the legal definitions of the terms involved in an invasion, it should be glaringly apparent to everyone involved that the attacks on 9-11 did not serve as an "Invasion" of the United States.

Not that it would matter, even if it did. The Suspension Clause notes that the Privilege shall not be suspended "unless in times of rebellion or public invasion the public Safety may require it. (emphasis mine). Who determines what qualifies as a situation where the suspension is "required?" Well, anyone who has taken Constitutional Law should be able to tell you who the interpreters of the Constitution are, as denoted in Marbury v. Madison. The Court, of course, gets to decide what the Constitution means. And the Court has decided when the public safety may require the suspension of the Writ. In Ex parte Milligan, 71 U.S. 2 (1866), the Court addressed the concept of when the public safety may require suspension. In a nutshell, suspension is justified when there is such a breakdown in the region that the legal system can no longer function, thereby requiring martial law. The purpose of this is to limit the arbitrary use of executive power. It does not take a genius to see that there has been no breakdown of the legal system in Guantanamo Bay, short of the denial of basic legal protections for the detainees by the Government holding them, therefore, there is not backing for the premise that the Writ should be suspended.

This, of course, was known to the Government during oral arguments, which is why it was not brought up before the Court to decide, and the argument presented was merely that the Writ didn't apply. The majority of the Court disagreed, and (as I've said previously) rightly so.

Above the Law, for the God's Will

Pastor Gus Booth has moxie. He is a pastor at Warroad Community Church in Minnesota. He deserves praise for devoting his life to spreading the Lord's word and preaching from the Good Book.

That said, the pastor needs a lesson in humility. The United States grants tax-exempt status to churches. One of the conditions for that status is that the churches do not engage in politicking from the pulpit. Pastor Booth knows this, yet has determined that it is his place, his right, and his duty to inform his congregation in sermon that no Christian can vote for Barack Obama or Hillary Clinton. I was unaware that God was a Republican.

What's more concerning, in my mind, is that he seems to believe that not only is it his obligation, but that the good people at Americans United for Separation of Church and State operate to "intimidate" individuals such as pastor Booth into remaining silent on the issue. This is rather misguided.

Nobody is telling the pastor that he cannot have a political opinion. Nobody's telling him that he cannot share that opinion. The issue lies with pastor Booth's attempt to have his cake and eat it, too. As the top official of his church, his salary is paid by tax-exempt contributions. One of the conditions of that tax exempt status is that you do not engage in politicking. If the pastor wants to engage in politicking, then he needs to give up his tax-exempt status. If he does not want to give up the tax-exempt status, then he needs to hold his tongue. You have to take the bitter with the sweet. This protects the government and the church. Too often that dual benefit goes unrecognized, and that is unfortunate.

Highlights from Boumediene v. Bush

The PDF of the decision is available here.

It's too simple to say why the Court ruled the way it did in one or two sentences. You need a little more. I'm going to go through some of what I consider the highlights from the majority opinion here.

The issue of the case is whether the petitioners (individuals classified as enemy combatants by our Government who are being held at Guantanamo Bay, Cuba indefinitely) have the Constitutional privilege of Habeas Corpus. The holding is that the petitioners do have this privilege, and that the Military Commissions Act, Sec. 7, is an insufficient substitute for this privilege.

Habeas Corpus, for those who are unaware, is the right to challenge the validity of one's detention before the court (Black's Law Dictionary, 7th edition). This right is guaranteed under the Constitution in Art. I, Section 9, Cl. 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Taken in strict constructionist terms, this may seem to be all the reasoning one might need. However, there is more to what constitutes what is Constitutional than simply reading the plain language of the Constitution. One must also consider stare decisis - previous rulings by the Court interpreting the Constitution, and consider how the law in question compares to the laws previously ruled upon.

After conceding that the State was authorized to detain those captured and classified as Enemy Combatants for the duration of the conflict (Hamdi v. Rumsfeld 542 U.S. 507 [2004]), the Court set out to determine how and whether the law applied. First, the Court noted that these individuals were all captured, some on the battlefield, others in such locations as Bosnia and Gambia, and noted that none of the individuals petitioning the Court were citizens of a nation with whom the United States was now at war. The CSRT (the "alternative" to habeas review authorized under the MCA) had reviewed these individuals' petitions (the petitioners were not authorized legal counsel in these - it's not a trial - and they were not able to view much of the evidence presented against them - Democracy in action).

Now to get into the decision - The Court had to first determine whether the MCA served to deny federal court jurisdiction for habeas proceedings - which it did - and then the Court had to determine if this law was valid, thereby requiring the petitioners' cases be dismissed. In otder to determine the validity of the claim, the Court had to consider which of two possible reasons the Petitioners were barred from seeking Habeas relief: their status as "enemy combatants" as they were designated by the U.S., or because they were housed in Guantanamo Bay.

The Government's position was that these were non-citizens who were designated enemy combatants, and they were housed outside the United States, therefore they have no Constitutional Rights. Another way of putting this is "We get to designate what these people are, and we designated them enemy combatants. We did this because we think that Eisentrager [339 U. S. 763 (1950)] will allow us to deny them Constitutional rights." This justification should give Americans pause, because it basically says that the Executive Branch can designate whomever they want "enemy combatants" and deny them right to challenge their classification, to view the evidence that led to that determination, which goes against one of the fundamental tenets of our nation - that we were distrustful of the Government's power of the People.

The Court referred to the Magna Carta in its support for the importance of the Suspension Clause - that No man would be imprisoned contrary to the law of the land (Art. 39). It also cited Blackstone, who stated that the Habeas Corpus Act of 1679 (which established the procedures for issuing the writ and served as the model for the Colonies' habeas statutes) was the "stable bulwark of our liberties." The Court tied these, and other concepts together -

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.

Justice Kennedy's opinion also points out that the Suspension Clause existed in the original draft of the Constitution - predating the Bill of Rights - providing even more evidence of the importance of the Writ to the Framers.

So the Writ is important to America. How does this apply to foreigners? Well, the Government said that the Writ has no application to individuals classified as enemy combatants and held outside the United States (see Eisentrager). The difference, the Court notes, is that Eisentrager deals with individuals held in German prisons, whereas the detainees at Guantanamo Bay are held on a U.S. government facility in a U.S. territory under complete U.S. control. Generally speaking, citizenship of the individual seeking relief is viewed as more of a non-factor based on American and British precedent, see e.g., Sommersett's Case, 20 How. St. Tr. 1, 80-82 (1772) and generally Khera v. Secretary of State for the Home Dept., A.C. 74, 111 (1984).

The Government argued that the Writ does not apply because, like Scotland and Hanover with respect to England (where the writ did not apply), Cuba has its own court system. This is a false analogy, though, as the detainees, while technically on Cuba, are held in a U.S. Territory and are not authorized access to Cuban courts, whereas prisoners in Scotland and Hanover were. In terms of sovereignty, the Court notes that there are two types - De Jure sovereignty (which is what Cuba holds over Guantanamo Bay), and De Facto sovereignty, such as that held by the United States over the same. The Court held that De Facto sovereignty controls questions regarding habeas standing, which makes sense.

This is one of the reasons supporting a rejection of Eisentrager. Another is that relying solely on Eisentrager would mean that the Court reversed its position from the Insular Cases, where it said that questions regarding extraterritoriality needed to be viewed individually based on the circumstances. Further, the prisoners in Eisentrager had already been tried and convicted (this is important to the Court in distinguishing the cases) and they did not challenge their status, as the detainees are.

The meat of the decision, indeed the lines that I've heard the most over the past couple of days, come from this next section. The Government claimed that it has no jurisdiction over Guantanamo Bay because of the lease treaty of 1903, and thus the Constitution has no effect there. Because of the importance of the Court's answer to this, I will include the complete text from the opinion here:

The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited," but are subject "to such restrictions as are expressed in the Constitution." Murph v. Ramsey, 114 U.S. 14, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Courts recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. (emphasis mine)

Basically, Eisentrager does not apply, and the detainees are entitled to habeas relief in U.S. Courts because there are no other courts in which they could challenge the validity of their detention.

The Court did touch on the question regarding suspension of the Writ, and noted that there is no invasion or rebellion, the requisites for which the Writ may be suspended under the Constitution. The case law the Court cited shows incidents where habeas was intended to be streamlined and strengthened, not diluted as the Government sought to do in Boumediene.

Given the length of the majority opinion, I will look at the dissent in a future post. Again - I agree with this decision and find it good for our Nation.

Helter Skelter

One of the Manson family murderers has the chance to be released. California has a law that allows inmates who are terminally ill to petition for release to be cared for by their family members at their expense. It is through this law that Susan Atkins may be entitled to get out of prison.

Susan Atkins was one of the members of Manson's "family" who killed Sharon Tate (an actress) and others at Manson's direction. Details about the crime can be found at Professor Douglas Linder's famous trials website here.

I understand the desire to be compassionate. But there are circumstances where I think compassion needs to come from a source other than the state. This is one of those situations. Don't give her the dignity of a release - show the People of California that her life sentence meant what it said.

A Victory for Liberty

The Supreme Court ruled today that Guantanamo Bay detainees may challenge the validity of their detention in U.S. Courts. This is a good thing for those who love liberty.

Basing most of what I am about to write on my memory from National Security Law and ConLaw, I will try to explain what I understand as President Bush's (and Congress) intent was in the law that was overruled. In essence, the law that was challenged denied habeas corpus to the detainees at Guantanamo Bay.

The President was probably relying (as he had in Hamdan v. Rumsfeld) on the premise that because the detainees were being held outside the United States - that is, they were in Cuba - that they would not be subject to habeas corpus - that the Constitution and the laws of the United States would not protect them. Since this failed in Hamdan (executive order), he created tribunals that would review the detention process. This review does not meet muster for what is required in a Habeas petition. Justice Kennedy commented on this in the Opinion (quoted from - Lyle Denniston at SCOTUS Blog): "[The Suspension Clause] protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periouds of formal suspension, the Judiciary will have a time-tested devise, the writ, to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty. [Those who wrote the Constitution] deemed the writ to be an essential mechanism in the separation-of-powers scheme." Justice Kennedy also noted that the political branches of government do not have "the power to switch the Constitution on or off at will."

President Bush stated that he "strongly agree[s] with those who dissented. And their dissent was based upon their serious concerns about US national security."

There are a couple things wrong with this. First off - it betrays the argument that we hear most often in favor of conservative-appointed justices - that they follow the Rule of Law. President Bush seems to argue that the justices he appointed, as well as Thomas and Scalia rule according to how they feel. This is exactly what Conservative refer to as Judicial Activism, and it strikes me as odd that the President would argue in favor of supporting the decision of Justices who let their opinions determine how they rule as opposed to the law and, particularly, the Constitution. Second, this decision should be one that President Bush applauds, because it holds one of his basic tenets on the war on terror undisturbed - that "we will not allow this enemy to win the war by changing our way of life or restricting our freedoms (emphasis mine).

Preserving habeas corpus review for those detained by our Government can be viewed as nothing less than ensuring that our freedoms are not restricted. This is a good ruling.

Nelson at the Liberal Journal has also posted on this topic.
Thanks to Just Wondering at Vim and Vinegar for linking to this post.

For more information on this matter, look at Melissa's post at WriteChic.

Shifting Goalposts

After 9/11/2001, President Bush declared war on "terror." Terror, and terrorist and terrorism, is an interesting idea - how does one define "terror?" How does one frame a war on terror? It's not a tangible enemy such as war against "Germany." In a situation such as the war on "terror," what we find ourselves fighting is an idea; a "terrorist" to one person is a "freedom fighter" to another, so it's sticky even to say who we are fighting against.

When one has such difficulty in defining what the enemy is, then it's no doubt going to be difficult determining how to define victory against that enemy. Here's where the concept of shifting goalposts comes to play. One the one hand, "victory" in war has traditionally meant the eradication of the enemy, or its unconditional surrender/capitulation. The latter cannot happen in a war against an idea, and the former is something that is only won when every member of that idea is defeated, which is an impossibility spawned by the definition.

This is the conundrum with the war on terror. You see, when we declared "war" on "terror," the Commander in Chief of our military stated that we would "conquer" the enemy; that we would win. Less than two years later, however, the President stated that the war on terror was not a war we could "win." Then, in 2005, the selfsame head of the Executive Branch stated that we would not settle for anything less than "complete victory."

Now, I'm not entirely sure how one can achieve "complete victory" in a war that we cannot win, but I would assume that it has something to do with shifting goalposts. These days, it's not about whether or not you "conquer" the enemy, especially if the "enemy" is whoever you say he is. Instead, the key is to redefine the parameters of the operation in such a manner that you can claim "victory" under the new rules (such as some are suggesting the NBA has done with referees in instances in the 2002 playoffs with the Lakers against the Kings and in 2005 with the Rockets against the Mavericks), or at least delay acknowledgement of the impossibility of reconciling the goal from the statement until such time as you can shift the blame for the inevitable failure on to someone else.

And people wonder why the President is being predicted to be remembered as a failure. When the defining piece of your legacy can be viewed as nothing less than a failure (and the absence of victory, however impossible to achieve, makes it exceedingly difficult to view it as otherwise), then that title is a difficult one to shake.

Wednesday is Haiku Day

Haiku haitus
Has hit the Binjo Ditch, just
No creative time...

As always, I look forward to your submissions.

Whatever "It" is

I'm not feeling it.

Reforming Tort Reform

I have had a couple conversations over the past few days with individuals regarding tort reform. One of the individuals was in favor of capping liability. Another was opposed to capping liability. The general idea behind Tort Reform is that frivolous lawsuits and a litigation-happy nation drain businesses of their funds, driving people out of work and driving up the costs of products. This also, the hypothesis goes, results in mom and pop corporations being forced to close because they cannot afford the liability for the harms that they have caused.

More often, though, the companies involved are not mom and pop corps, rather, they are multinationals who can well afford the cost of litigation and even factor that in to their business plan. For example, let's say there's a pharmaceutical company designing a new drug to treat some ailment. Research and Development of a drug can cost tens to hundreds of millions of dollars before the FDA approval is granted. The company, of course, cannot sell the drug until the approval is given, so the impetus is on getting FDA approval as quickly as possible to recoup that expenditure as rapidly as possible. The best way to do this is to cut corners. This can come in many different forms. The most obvious is to not do complete research on side effects. Another method of cutting corners is under-reporting findings, burying a 2 paragraph blurb about a serious side effect 800 pages into a 1000 page document. A third avenue of cutting corners is to under-represent or misrepresent your findings. A good example of this would be the Ford Pinto case, where the company knew of the risk of death from rear-end collisions, calculated the cost for paying out the wrongful death cases, compared that to the cost of recalling and repairing the defect, and opted to continue to sell a product they knew could (and would) kill people in a cost-saving maneuver. The problem with these methods is, eventually, the truth will come out. It's a calculated risk, though. The side effects might not manifest themselves for (say) 10 years after the product entered the stream of commerce. By then, though, the company has made millions, or even billions selling the product, not only recouping the original investment, but allowing the company to reserve hundreds of millions of dollars for the inevitable litigation that they know is coming (and since they prepare for what they know is coming, the argument that plaintiff's firms drive up the cost of medication is virtually nil).

Of course, these companies are for-profit companies, which means they owe a fiduciary responsibility to increase shareholder value. One way to do this is to expand the sales of their medication. How does one do that? They market the product for purposes it was not originally approved for. In the pharmaceutical realm, this would mean off-label marketing, or marketing for purposes other than what the FDA approved the product for. The companies will hire other companies to write off-market friendly literature which they can then distribute (think of the tobacco companies with their doctors who could show no definitive link between smoking and lung cancer), knowing that people will trust the literature and expand the use of said product.

The problem with capping liability, besides the fact that it would free up more profit for the company, is that often times those injuries caused by the knowing misrepresentation or under-representation of the company will cost more than what the liability cap might allow. If I take a drug and develop lymphoma as a result, the treatment for that, and the cost of medications will continue indefinitely. Capping liability per plaintiff would essentially punish them for relying on the misrepresentations of the company as to the safety of their product.

There's more to tort reform than this, such as the trend towards arbitration vice litigation with a minimum injury requirement before one can even make a claim for recovery, but this post has gone on long enough.

This Day of Days

Take a moment to remember this - the anniversary of the invasion of Normandy. Remember, and thank those of every era who served, and particularly those of the Greatest Generation, who gave more than anyone else could truly understand.

For Love of Country

I'm not so naive as to believe that everyone who goes to the Olympics does so simply to compete the best they can for their country, even if I think that should be the major driving force. However, I do believe that one aspect of the Olympics is that you are representing your country. I remember, about 16 years ago, hearing about some American guy who decided he wanted to compete for the Suriname team, even though he could produce no evidence that any member of his family had ever hailed from Suriname. I remember thinking there was something just wrong about that. As happens so often in time, history repeats. In the most recent situation, WNBA player Becky Hammon, spurned from her U.S. team (she's a U.S. resident and citizen), has chosen to play for the Russian team. I know that the Olympics formally lifted the ban on professional athletes back in 1992, but isn't it a little soon to allow Olympic free agency? As an Olympian, you are a representative of your nation; for two weeks, you are that nation. From a purist standpoint, representing a nation that is not yours simply because you wanted to go to the Olympics and were deemed not strong enough a component for your country's team runs contrary to the spirit of patriotism that should, at the very least, be a part of each Olympian.

For what it's worth, because I've heard others claim that nobody complained when Hakeem Olajuwon played for the Dream Team - he didn't do so until after he became a United States citizen. In other words, he represented his country. Apples and oranges, people. He did the right things to get on the team. He wasn't motivated primarily by selfish ambitions.

Number 11

The Detroit Redwings won their 11th Stanley Cup last night. I've not been following hockey as much since I moved to Houston, in part because I have no cable and am unable to tune in to most games, but also because there are no NHL teams in Houston, so local coverage is nil.

A couple comments about the finals. First off - the Redwings were phenomenal. They were precision-like in their execution, and they played as well as one could expect a champion team to play. Second, and many people are going to be saying this - Sidney Crosby was outstanding. It's clear that he is well suited to serve as the face of the league. His determination and dedication to his team and his game were things that all sports fans admire. Third - the NHL needed these finals. Over the past three years, the Stanley Cup was won by Anaheim, Carolina, and Tampa Bay. None of these venues are traditional hockey areas, and their stories, though they did play against Canadian teams, are not ones that will drag in the casual fan. The NHL needed Detroit vs. Sidney Crosby just like the NBA needed Magic/Bird in the 1980s. The next thing that needs to happen is that Detroit and Pittsburgh need to meet in the finals again next year. I'm not just saying this because I want the team I root for and the player who has won me over as a fan in the finals again, but because it extends a story line that draws in viewers and makes observers fans.

I just hope Pittsburgh can keep their core team together and Detroit's goaltending can stay consistent enough for this to happen.

'Tis a Gift to be Simple

According to researchers, stupid flies live longer...

Me Singing A Whole New World Disney's Aladdin Nick Pitera

Pretty interesting.

Conversation With the Princess

This morning, as I mentioned in my previous post, we ate breakfast at the Guenther House in San Antonio - by far one of the top 3 restaurant breakfasts I've enjoyed in Houston. We had a bit of a wait to be seated. Fortunately, the house is right on the San Antonio River, with a pretty nice-sized seawall attached, so you got a good view without too much risk of getting wet.

The Princess had been looking over the side at a couple mallards that were swimming about. She walks over to me and asks me if I've ever eaten duck. "Yes, Princess, I have."
"Oh, then those ducks probably don't like you."

After asking Mom the same question and receiving a negative reply, it was back to watching the ducks swim.

I guess I know now why ducks don't come up and start casual conversations with me.

Town Pass

We spent this weekend in San Antonio, where we met the Photogs, Red Hot Mamma, and her underling for breakfast at IHOP followed by a day at Sea World. Fun was had by all. The Boy and the Princess were both tall enough to ride multiple rides, and Photog was like a kid in a candy store amongst the magic and wonder of the park. Our day started less than gloriously, as we had to spend about 30 minutes in line waiting for the 4 families in front of us to buy their tickets. What struck us as odd was that the Photogs and ourselves were able to get through in about a combined 3 minutes.

After this, we hightailed it over to watch the Cannery Row Caper. The Sea Lions are perhaps my favorite part of the park. Next up was the Log Flume. The best thing about the log flume, in my opinion, is that it's a ride that everyone in the family can enjoy. There are a couple drops, but more importantly, the Apple can go on as well. And he did. And we rode. And the Apple had a Kool-Aid grin as wide as the Guadalupe River. His enjoyment (along with the Boy and the Princess's) made the line completely worth it.

Following the log flume, we took a quick break for the children and spouses to catch their breath while the big boys went on the Great White. This is quite possibly my favorite roller coaster in Texas. Photog and I went on it, expecting Underling to show up while we were in line. Except there was no line. So we got on and went through it on the front row, which was great for me, and possibly even more fun for Photog. We get done and get out to where the families are and hear that Underling has gone to get on the ride, so Photog and I run off to catch him. We get a second ride (completely worth it), and then it's time to cool off. The Penguin encounter is perfect for a fourth stop because it's nice and cool. It was around this time that I realized that I was a bit tired, and possibly a little dizzy from the roller coaster. So I sat for a few minutes while everyone else enjoyed.

This year was the first year that The Boy was big enough to go on any roller coasters. He was just tall enough to ride the Steel Eel. This roller coaster is about 1.25 miles long (I'm completely making up a number here) and goes up and down and up and down. There are no inversions. Yet this thing scares the snot out of me. I'll do any ride in the park - except this one. But the Boy was undaunted. He had not been on a grown-up roller coaster before and he wasn't going to let anything like the actual possibility of the coaster crashing into the earth and 75 miles an hour stop him. So Mrs. Photog and I opted to take the Princess and the Apple over to the kid's area while everyone else had their ride. The kids had fun, particularly after they found the sandbox. This was great for me, because I got to sit while they played.

Long story less long, the kids played some more, we saw the Shamu show (pretty good, especially the part where they had all the active duty and former military members stand up to be recognized - thank you Sea World, it's schmaltzy, but welcome), and then we ate supper. Supper passed, and the team opted to take in the ski demonstration, which was fun for all, and gave the Apple the chance to fall asleep. I kept an eye on him while the rest of team BabyLawyers went on the Rio Loco. Rio Loco resulted in a splitting of the teams, as Red Hot Mamma and Underling went to the Lost Lagoon for some swimming-type fun and the rest of us went back on the log flume, then over to the dolphins. The Boy, Underling, Red Hot Mamma, Photog (I believe) and I all got to pet one of the dolphins that came up. This was an amazing thing for me - I'd never touched swimming sea life that I wasn't preparing to eat before, and The Boy has an experience he'll be able to talk about for years.


We then walked through the shark tank; which we all loved, and finally, it was off to the Journey to Atlantis. Here's the deal. You get on a car that seats 16 people. You go up about 3000 feet (or 100 feet, as the case may be), turn around backwards, go down a nice little backwards slide, then turn around forwards for a blind drop 100 feet into a giant splash pool. This was the best ride of the day, not just because it was a nice twist on a good ride, but because there was literally no line the whole time, so Photog, The Boy, the Princess, and I were able to ride 4 times in less time than it took to ride any other ride in the park once. We were all giddy. And tired, as by this time it was about 9 p.m.

So we packed up and went back to the hotel, where the kids bathed and fell pretty much immediately to sleep.

The morning saw us getting breakfast and preparing for the drive home. We took the opportunity to have breakfast at a non-chain restaurant - namely the Guenther House Restaurant in the King William section of San Antonio. This was nice. This was (is?) the home of the Pioneer flour company, and there's a nice restaurant there with the museum. The food was outstanding, including the best biscuits and gravy I've had in Texas. I'd go back to San Antonio just to eat breakfast there again - it was outstanding.

Then a nice drive home, with a stop at Buc-ee's for some fudge and beaver nuggets, and now it's time to recuperate before work (and jury duty) tomorrow.

I think next year we will consider a season pass, as there's just enough stuff to be able to do over again to make it worth the extra 12 bucks.

It's Been a Few Days

I know, I've kept you all in suspense with what's going on in the land of Steve. We've been busy with homebuying stuff. Work has also picked up. We've been setting the MDL and preparing for depos for the ITG. The job I was hired to do for 8 weeks has now surpassed 8 months. I'm not complaining.

The children finished school today; The Boy did all right, though his English scores dropped each quarter this year, which is disturbing. The Princess did very well on her final report card, which was nice to see, as she had been a bit of a pill.

Scott McClellan has written a book where he's decided to vilify his former boss. The White House is playing it off as a person dealing with personal issues and denying that any of the things occurred. This is to be expected, but, really, if stuff was said behind closed doors, how would any of us know? That's what makes this interesting for people who aren't me.

We need a Futon with frame and a Computer desk for the new house after we close. My wife has offered to dance a jig for extra funds. I'll make sure she has a hat to toss change in.

In Memorium

I spent 8 years in the Air Force. I am proud to have served. I followed my father, my grandfathers, and my great-grandfather, all of whom donned a uniform and swore to defend this country against all threats - foreign and domestic.

Today is a day to remember those who served. It's a day to put aside all differences, even differences in approach to the military or the use of the military, and pause for a moment before the big family barbeque, or before you go to that big furniture sale, or buy your new car for one dollar down to thank those who put their own wants aside to defend your liberty. It's a day to remember those who serve, those who served, those who fought, and those who died. This is a day to remember Americans.

There are hundreds of days to be petty, political, pontificating, or imprudent. There are scant few dedicated to putting aside all our differences and focus on what unites us all - the flag and those who defend it.

Thank you.

There is another option

People. You don't have to vote for Bush - I mean, McCain - or the Democrat. You have options. You have the Libertarian Party. And the Libertarians have Bob Barr (republican congressman).

Perhaps it's time to let the big dogs know that we want something different.

These are my kind of people

Not just figuratively.

I've mentioned before that one of the things that appeal to me about the Methodist Church is it's willingness to encourage people to think for themselves, to find their own conclusions. It comes as no surprise to me, then, that the Methodist Church would pass a resolution stating that "[t]he promotion of religion or any particular religion in the public schools is contrary to the First Amendment." What is surprising, though, is that at the conference where this resolution was passed, the Methodist Church actually passed THREE resolutions expressing support for evolutionary science.

I think part of why I identify so readily with the Methodist church is that they seem to get what I get. You can keep religious instruction/coercion out of school and still remain a spiritual, religious person. Just because the word of God is not preached in school does not mean that He does not enter through the hearts of those who believe in Him. The strength of one's faith should not rest in the presence or absence of that faith's instruction in a government building. If it is, then perhaps the change needs to occur in you first.

In other news, I moved into an office yesterday. I now have a view.

Heinous, simply heinous

Ok, I get it. People don't like Detroit. If you drive south from Detroit, you get to Canada. There's a lot of crime. Coleman Young was mayor. Kwame Kilpatrick is mayor. Unemployment is rampant. The auto industry is dying. It's lost population constantly for decades. It's got the Detroit Lions.

But in terms of *real* professional sports teams, there's some pretty good tradition there. Detroit is the home of Cobb, Greenberg, Kaline, Trammel, Whitaker, etc. It's where the Bad Boys reigned, and where team basketball is still on the map. It's Hockeytown. And during the Stanley Cup finals, Hockeytown is Octopi on the ice.

So the fact that the league would decide to throw a $10,000 fine on the team because Al Sobotka swings it over his head as he's taking it off the ice just screams wrong.

Now I'm upset.

Graduation Day

The Princess is graduating Kindergarten today.

We couldn't be more proud.

Homeward Bound

And we have a K.

We will not waive any express or implied warranties, including the implied warranty of fitness for a particular use.

The deal sounds all right - I think the seller is getting a slightly better deal than we are, but it's a nice house on a quiet street a block from the park/tennis courts/pool, so we're happy.

All things considered, we did well. It's got enough room for the family; we might be able to expand if need be (the garage is connected and we might be able to close that off and then build a second garage in the backyard).

We should be closing by the end of June; we'll start moving in that weekend and hopefully have the transition in sleeping quarters by Independence Day.

Now we get to have fun with HOA's, hiring maids, switching schools, buying a lawn mower, a bed for the Princess, and a new desk for the family lawyer. Can't wait!

Diving Headfirst Into the 21st Century

I got my iPod shuffle in the mail a couple days ago. It's my first foray into MP3 players. I bought it with blood - literally.

Anyway, as I was registering my iPod and getting it set up to play music, I had to sign a few terms and conditions. I read through them and noticed the following, which is one of those terms that you think should go without saying but still needs to be said:

THE APPLE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE APPLE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

I'm not sure how many people are going to try to operate a nuclear facility with an MP3 player, but I wouldn't put it past McGuyver.

The Polyphonic Spree - Light and Day

It's catchy, but I'm still not convinced this isn't a cult of some kind...

More Hate directed towards CSI Miami

I confess. I missed the first half of the season finale. This is not necessarily a negative, though it does make it more difficult to give a complete recap. Still, let's review a few of the things I did catch last night. This may be out of chronological order, but seeing as how nothing on CSI Miami makes real sense the way it plays out anyway, we should be all right.

I think I tuned in with Adam Rodriguez's character (The Jaw) using his handy dandy computer to lift a partial fingerprint off of a spent shell casing. Fortunately, only one person has ever handled this particular casing, and therefore they were able to get a good match in about 7 seconds on their magical computer fingerprint-matching database. It takes me longer than that to open a picture from my My Pictures folder and it's located on my computer. I need some good Miami PD funded computer software and hardware. Anyway, the guy the fingerprint belongs to is an ammunition salesperson, and he just happens to have inspected that particular casing in his inspections before the bullets are shipped overseas. This was revealed after he was searched in his place of business (a Terry patdown is probably unnecessary here).

While this is going on, Callie Duquesne, the Smirker, is busy inspecting some of the bullets they recovered from the crime scene. She pours the solution to clean the bullets and just starts cleaning the first one when the phone rings. In a very believable series of events, The Smirker puts down the bullet and then places the Q-tip on the Petri dish with the solvent and answers the phone. As she is on the phone, some unseen force of nature wills the Q-tip off of the petri dish and it rolls towards the bullet, striking the bullet. This is just enough force to send the bullet rolling along the table, which apparently is on a significant enough incline to get it to roll completely off the edge. Then, the bullet completes 1.75 rotations and lands PERFECTLY on its percussion cap with enough force to discharge the bullet, which then goes straight up into the fluorescent light, knocking the light down onto the table and setting the entire table on fire. It's like the perfect storm.

After the fire is put out, The Jaw asks the Smirker how many bullets there were (3) and how many were compromised (2) and then sets out to find the missing slug. Fortunately, the third slug was found underneath the table that had caught fire, cozied up next to one of the wheels (apparently it didn't discharge when it fell off the table or when it was presumably heated by the fire). Even more fortunately, they were able (after safely discharging the bullet in their bullet discharger) to determine that the bullet was filled with black powder, but with no stabilizer, and that it was made in 1969 in a Soviet Bloc country, which is illegal for someone to own/sell.

This realization then gives El Poseur reason to execute a search warrant at the ammunition dealer's place of business. Except, instead of Knock and Announce, El Poseur stands behind our suspect with his pistol drawn and bearing straight on the back of the guy's head (the front after he turns around to see the police in his office). Lo and behold, they find the handgun, and the suspect confesses. They take him out of the building and start on their way towards the police cars to drive him to the police station when - and this is completely possible - a driver in a Lexus drives by, sticks his right hand out of the passenger window, shoots ONE BULLET from at least 50 feet away and plugs the suspect square in the heart. This bullet is no ordinary bullet, though, it's a fused alloy shell. The great thing about the fused alloy shell is that it works two different ways. If it strikes something cold, such as a bullet-proof vest, it does not break apart, rather it stays together, piercing the kevlar. However, if it hits something warm, such as a person, the bullet's alloy will split apart, operating more like a shotgun blast and creating several exit wounds. Strangely enough, though, the heat from shooting the freaking bullet does not generate enough heat (even though heat was what led the bullet in the lab to go off into the light earlier in the show) to break apart the alloy. Apparently gunfire is something slightly less than 98.6 degrees, though the shells that landed on me in boot camp felt considerably warmer.

Long story short, they track down the guy who is selling these weapons and he gets locked up. He then sends a message via phone that he wants El Poseur taken care of "just let me know when it's done." El Poseur at this time is stepping off of a small jet (maybe a Lear jet?) at the airport with his sunglasses on. As he stands on the tarmac, he takes his glasses off; I'm not quite sure why he needed the shades on in the plane but not on the runway, but hey, he's the star, so he gets to get his way. Suddenly a gunshot rings out and EP falls, a bullet hole in his shades.

Is El Poseur dead? Of course not; we're not that lucky, but we won't know until the fall, when we learn who shot EP. (Perhaps it was Jonathon Torgo, who apparently got the text message on his phone that EP was taken care of. Oooh, plot twist!)

Rallying the Base

The Republicans as a party are in fairly dire straits. After losing control of Congress, they now look to lose the White House and potentially find themselves in a Veto-Proof minority on Capitol Hill.

They desperately need a hot button issue to wrap themselves around to rally the base. Fortunately for them, California exists.

For those who don't know, California's Supreme Court recently held that the state's Gay Marriage ban violates the state's Constitution. This is just the ammunition a high-speed, devoted Republican Congressman needs to be able to jump headfirst into the election cycle. In this case, it's Georgia Congressman Paul Broun, who has declared his intent to introduce an amendment banning Gay Marriage. The rationale? In Congressman Broun's opinion, "There is simply no basis for the suggestion that homosexual 'marriage' is a right protected by the United States Constitution." I first read about this proposal on The Moderate Voice here.

This is merely posturing. The Congressman knows that this proposition has virtually no chance of getting through a 2/3 majority Congress, and even if it did, 75% of the states would not agree to it. But, the goal is not to change the law. The goal, rather, is to get the issue out there for the Religious Right to get fired up about them damn libruls and hopefully go out and stop 'em before this country really goes to hell by treating people equally.

Dues That To Me One More Time

I just paid my annual bar dues today. That was a nice check going out. I swear I just did this some five months ago. So much for annual.

Time to go to work and earn that dues money back!

Duty, Breach, Causation, Damages

Those are the four elements of a negligence case. Each of these must be proven in an attempt recover on any claim for negligence. For example, a shopkeeper might have a leak on the roof and, even though he knows that it's dripping onto a puddle on the floor, he fails to even put up a sign. A few days (or hours) later, someone who does not see the puddle steps on it, slips, falls, and injures himself. The shopkeeper has a duty to keep the floors dry for customers. He failed to do so, thus breaching his duty. The customer slipped on the floor, suffering injuries.

Now, there are other claims that fall under inherently dangerous items - things that are going to be hazardous no matter how much care is used while handling them for their intended use. This would include items such as dynamite.

One family in New Jersey, has decided that Aluminum baseball bats qualify as well. An item that is dangerous, no matter how much care is being used while using them. They will file suit against the maker of the baseball bat, the store that sold the bat, and Little League Baseball for allowing the bat to be used in the game where their child was critically injured after being hit by a ball he pitched to a boy using the bat. The article is silent on whether the family is suing the batter. The crux of the argument is going to be that the game would be safer if the players used only wooden bats.

I understand the need to blame. I do. And I can only imagine what it must be like to deal with a child who has suffered such an unpredictable injury. They most certainly have my deepest sympathies and well wishes. But, I'm wondering how the family is going to get past summary judgment on this. I just don't see a causal connection. It was a freak accident, and there's absolutely no way (that I'm aware of) to show that their son would not have been injured had the batter been using a wooden bat (We're talking nanoseconds of difference in reaction time here for a batted ball to travel 60 someodd feet). This is a tragic accident, but at the end of the day, sometimes accidents just happen.

Late Spring Swelter

Texas is already getting hot. I don't care for hot. I've always felt it was easier to warm up than it is to cool off.

We've been looking at houses. Our lease is up in July and we're more or less ready to be done with apartment living. The good news is that we think we've found the right house - it's got everything we need and plenty of yard space for the pets - I mean children. Even The Boy liked the house, which is high praise.

We'll see how the bidding goes; we think we can get a little bit better than they've listed, though the listing is fair for the area. It'll be interesting to see how it all pans out.

The Hidden Costs of the Iraq War

It's not just men and material. It's more than equipment, family time, bonding, child births, Christmas, or that. It's golf. (source: the Politico, from Yahoo)

That's right. The President no longer golfs, due to the Iraq War. He felt it in bad taste that he would go and play a game on the government dime while scores of thousands of American soldiers are fighting an insurgency/civil war of his creation. What a sacrifice.

Think of those poor Country Clubs who are losing out on the dues the President would have been paying to golf. But, we do need to maintain solidarity with the parents of those young men and women who have died for a war whose motive has changed over the years.

I'm curious, though. When is Jenna Bush or her new husband going to don a uniform and serve over there, or anywhere? How about George P. Bush? Maybe, just maybe, if some of these folks serve, then the President can feel just in working on his short game again.

Terrorism in Texas

That's what the FLDS letter discussed in this Religion Clause Blogspot post makes reference to. The letter that was reportedly hand delivered to President Bush at his daughter's wedding.

I somehow think that other than having the letter posted on their website (available on a link in the above link), that this is going to fall on deaf ears. And without going into too much analysis, due to time constraints, perhaps they're right to complain, but the inflammatory language is definitely not helpful to their cause.

Busy Busy Busy

Tomorrow's forecast appears to be busy. We've got a lot to get ready for in preparation for trial next Spring. Speaking of Spring, I'm going to be looking at houses tomorrow evening after work. We have a couple that we're pretty fond of; I just have to look at them to determine which ones look most promising, and which ones the Spouse will be most fond of (let's face it - her opinion is the one that matters most). That said; we have done a bit of preparation in anticipation of the purchase and have an idea of the area in which we want to live and the price range in which we want to look. This will make things go a bit more smoothly.

The kids have 3 weeks left of school, then they're done and we get to go to San Antonio for Sea World so that Photog can play. The kids might have some fun too, but this trip is all about the wide-eyed wonder that can only be truly appreciated by watching someone else experience it.

We're excited. And Anxious.

Happy Mother's Day

I looked at my clock and realized it was just past midnight.

I'm tired as can be, but I can't sleep.

Things are starting to pick up steam in our lives; we're looking at houses to buy, though we're probably about 20k away from what we'd really like. I'm getting busier with trial prep for my firm, which is significant because I was initially hired to review records for 8 weeks to finish a settlement. Rumour has it I'll be moving into an office here shortly. The Boy is finishing third grade while the Princess is enjoying her last 3 weeks of Kindergarten. The Apple is anxious as can be to start school himself.

The Missus (Happy Mother's Day, dear) is thinking about getting herself a realtor's license so that she can get herself a promotion at work; which I encourage.

However, all of this going on at once is a bit of a blow to the system, and I think part of the insomnia right now is due to that. I'm not opposed to change; I just prefer it happen gradually, not unlike Continental Drift. Anyway, I need to get some rest here pretty soon, because the kids will be up in 5 hours, and the Wife gets to sleep in today.

Pot Heads

Kids are enterprising, when they want to be. When The Boy was three years old, he fashioned a makeshift ladder out of shelves and a sit 'n spin to be able to reach the top of the armoire upon which we put his toys in time-out.

Now combine the ingenuity of a child with the mental power of your average pothead. They want to smoke their pot, but apparently are bored with the puff puff pass approach to getting stoned. What could be better? I know! Let's use a bong! OK, now, what can we use for a bong? An empty Pepsi bottle? A flashlight casing? No, those things are too hard to come by. Instead, let's dig up a grave, steal a skull, and use that for a bong. Not surprisingly, the teens were charged, according to KPRC news in Houston.

The Chase Vault

I'm not much for superstition, except when I'm being superstitious. But I do enjoy a good ghost story/unexplained mystery. And I think the story of the Chase Vault, definitely qualifies.

Moving On Up

So we're going to buy a house. We got pre-approved last Friday, and we spent the weekend shopping. There are a couple, three houses we like; one in this area - only about 2 miles from here, with a different school for the kids, but they'd keep the same daycare and pretty much the same daily routine. The other two are closer to the Woodlands, probably about 15 miles away, but with higher rated schools and younger homes.

We're looking forward to owning again. It's rather tough to go from house to apartment, especially when you move from house to drug/gang/cockroach infested apartment.

But at least we're (relatively) convenient to the mall, medical care, Downtown and the Galleria, and pretty good dining.

Decisions

What a Load of Crap!

Apparently the NBA has decided to give the MVP award to Kobe Bryant. I've long considered the MVP award to be a bit asinine in a team sport, but most years you can look and see at least one person who was the key cog in the team's success.

But that person isn't Kobe Bryant.

There will be apologists; there always are. They will say "but look at what he's done!" Or, "He deserves it because he's the best not to win one," or something of that nature. Then there will be the people who look at it from a pseudo-technical aspect: "He's the best player on the team that was the best in the toughest division," or some such crap. It's all a load, and it's all just justification to let a me-first, screw those around me, I need to be the center of attention narcissist allow other people to pay attention to him for a little bit.

I remember the All Star Game in Philadelphia some 10 years back where Bryant was named MVP of the game and the crowd booed. Kobe was asked if it upset him at all, and he said yes. He thought that they should show him some respect because he did so well, and because he's from Philadelphia. It doesn't matter what, if anything, he gave them, it matters what he's owed. And that's the rub with him. It's about Kobe. It's not about winning (really), it's about being the focal point of the winning team. He'd rather lose and be the star than win as the Ed McMahon.

"But look at this year - he was a teammate and they did better!" You're right. He was a teammate, and they did do better. But that was after all other options were gone.

"But he didn't have good enough teammates before to win." This actually is an argument against Kobe winning the MVP. How can someone legitimately be considered the player most valuable to a team's success when he's the constant? It was the addition of role players such as Gasol and Fisher (whose calming presence and legitimate third option is more likely what triggered the team's success, and by extension makes him more legitimately the Most Valuable Player to his team's success) that made that team better, not Kobe Bryant. He had more success because of those pieces of the puzzle, not vice-versa.

Kobe is a good basketball player. He's not a good teammate because he's incapable of grasping the difference between being a good basketball player and being a great team player. Sure he showed the potential this year, but are baby steps really worthy of Most Valuable Player honors?

I think not.

Complete Separation of Powers

Look it up. The Constitution says nothing about oversight of the Vice President. We all know, that as a strict Constructionist would see it, that if it's not in the Constitution, then the Founding Fathers would not have intended it to apply. Therefore, we should presume that Vice President Cheney's lawyer is right when he says Congress has no authority over the vice president.

Come to think of it, this is great, because it means that the Vice President can get away with basically anything, and it's all legit. Who wants to be President and be subject to checks and balances when you can be vice president and be a pompous ass?

I just don't understand where in anyone's mind they can seriously consider the hypothesis that the understudy to the most powerful office in the United States is not subject to oversight from the other co-equal branch of government.

So now, we have a vice president who can claim executive privilege, who's not part of the Executive Branch, and who is not subject to oversight. And the one we have is Dick Cheney, who selected himself to be Vice President after a thorough search of all possible VPs out there in 2000. Perhaps he was right, because who else could concoct such tommyrot?

I actually first read about this at Vim and Vinegar's outstanding blog a few days ago, but reading the news today, it caught my eye again. Read her post for a more in-depth analysis of this.

Rude, Not Criminal

I try to tell my children not to point. It's tough, though, because I point. So I figure the best I can do is convince them to not point with their middle finger.

I may have to rethink my position, though, if they can be arrested for pointing. Perhaps the veteran's shirt ("If you run, you'll only die tired") had something to do with it, but, quite frankly, I read the article, admittedly not knowing the situation behind it (did he say "kapow," for example?), and think - how is this even close to a criminal act? This is thuggery on the part of Island Lake Village's trustees.

Morning preparation

I spent some time this morning trying to get the Apple dressed for school. I told him to put on shorts. "I don't want those brown shorts." I showed him another pair. "I don't want those brown shorts."
"What shorts do you want?"
He points.
"Which ones?" I don't see any shorts in the direction he's pointing.
"Those ones." He points again.
"The cat is not shorts."

Congratulations to the Spring 2007 Texas Bar Passees

You can find your name here.

South Texas finished 4th in the state. Good Job.