21 December 2011


I have a complaint about the Republican majority in the House! As soon as the gasps and questions from my Sister and others subside, I will continue.

I want to ask the Republican leadership why they are letting the Democrats roll them like a San Diego lady of the night rolls a sailor on a liberty weekend?

To hear the White House and “Lyin’Harry” Reid tell it (and Nancy somebody, but nobody listens to her anymore),  “160 million working Americans” are going to find a tax bill for $1000 in the mailbox on January 2. (I try to listen to the White House press briefing every day—it is broadcast on POTUS on Sirius/XM satellite radio. Twice this week, I began to count the number of times Press Secretary Jay Carney said “a tax increase for 160 million working Americans.” I stopped at 35 each time. Today, he also declared that only economists who agree with the White House are really economists. Check the transcript.)  Now, everyone knows that the tax will be a few dollars every payday, and the decrease will be passed eventually and back-dated, but to hear Carney, and "Lyin' Harry talk, it sounds like the end of the world.

Tonight, I heard Lyin’ Harry’s cohort, Charles “Two-Faced Charlie” Schumer, on the PBS News Hour.  "Usually, when a bill is sent from the Senate to the House, the House is expected to take it up for a vote. But Speaker Boehner won’t do that.”

I waited for the reporter to ask Two Faced Charlie if it works both ways?  How many times has Lyin’ Harry refused to call up a House bill? I recall that when it was the debt extension, the President and Lyin’ Harry refused any two month extensions. “The American people need certainty,” they cried. “Only a one year extension will do.”

In fact, the President is on record as wanting a one year extension of the payroll tax cut, but “Lyin’ Harry” won’t bring that up because it’s his way or the highway.

But PBS isn't going to betray their liberal bias.  Surely there is someone in the media, other than Fox, who will tell the truth.  Not ABC, of course.  Carney's wife works for them.  But surely there is someone.   I’m not holding my breath.

16 December 2011


As the trial process begins for Private First Class Bradley Manning, charged with violations of three articles of the Uniform Code of Military Justice, the blatant ignorance of the media with respect to courts-martial is becoming evident. Those useful kidiots who are seeking to make him a hero or a martyr are misrepresenting the nature of modern military justice. For instance, in a POLITICO article written by Josh Gerstein, he butchered the facts about military law and procedure, seemingly to make a point against the system. PFC Manning is alleged to be the Wikileaks source of hundreds of thousands of pages of classified documents. His case is currently before an investigating officer appointed pursuant to Article 32, Uniform Code of Military Justice.

To understand the system, let's start with the basics.

The Uniform Code of Military Justice. The UCMJ is federal law, enacted by the Congress and signed into law by the President. Under Article I, section 8 of the Constitution, "The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval forces." The Code is comprised of some 144 articles which are codified under Title 10 of the United States Code at sections 801 to 941. (There are several amendments which added articles and were numbered as Article XXXa.) Included are the “punitive articles” (Arts 77 through 134) which define crimes under the Code. The others are definitional or procedural articles.

The UCMJ was enacted in 1950 as a single (uniform) body of criminal and procedural law for all of the uniformed services. Prior to 1950, there were two separate bodies of such law: the Articles of War (applicable to the Army, Air Force, and, when operating with the Army, the Marine Corps) and the Articles for the Government of the Navy (known lovingly as the “Rocks and Shoals,” i.e., something to be steered clear of).

The UCMJ was an extensive re-writing of prior military and naval law, meant to address, in part, perceived unfairness of the old systems as discovered when it was applied to a 12 million man citizen army during World War II. Two additions are particularly interesting.

Article 31 provided protection against self-incrimination and requiring a warning of that right before anyone suspected of an offense was questioned, presaging Miranda v. Arizona by over a decade. In fact, Miranda still does not come into force until a person is in custody, so Article 31 is actually broader than Miranda.

Article 32 provided a right that had been denied the Armed Forces since the adoption of the Constitution. The Fifth Amendment provides, in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. . ..” (Emphasis added.)Prior to the enactment of the UCMJ, charges could go to trial simply upon the oath of the accuser.

Article 32 requires that before a charge is sent to trial by General Court-Martial, the officer exercising general court-martial convening authority must first convene an investigation to determine whether or not there is probable cause to believe that (1) an offense under the UCMJ has been committed and (2) the accused committed it. The investigating officer is appointed by the GCM convening authority and need not be a lawyer

Courts-Martial. Courts-martial are as old as armies. The need for discipline meant that the crimes that were committed by soldiers, especially uniquely military offenses, mandated a system that could be employed at sea and in the field. Some things are crimes in the military that are not in civilian life. If a person comes to work late while working for General Mills, General Motors or General Electric, he cannot be sent to jail. If he works for General Petraeus, the stockade may be waiting.

Courts-martial are not standing courts. Each time charges are referred to trial by a convening authority, discussed below, a new court comes into existence and is authorized to adjudicate only the charges and the accused (defendant)named in the convening order. The convening order names the military judge, the trial and defense counsel, and the members of the court.

There are three types of courts-martial.

The Summary Court-Martial is a one-officer court. He is rarely a lawyer and acts as both prosecutor and defense counsel. A summary court can try only enlisted personnel and the maximum sentence imposable is limited to 30 days confinement, forfeiture of two thirds pay for one month, and reduction in one pay grade.

The Special Court-Martial is comprised of a Military Judge, not less than three members of the court who determine guilt or innocence, and if guilty, the sentence, and in practice, a trial counsel and a defense counsel. A special court-martial can impose a maximum sentence of confinement for one year, forfeiture of two thirds pay for one year, and a bad conduct discharge.

The General Court-Martial is comprised of a Military Judge, not less than five members of the court who determine guilt or innocence, and if guilty, the sentence, and in practice, a trial counsel and a defense counsel. A general court-martial can impose a maximum sentence of death, if allowed by law, confinement for life, and forfeiture of all pay and allowances, or any lesser permissible sentence.

Until 1968, the court-martial was quasi-judicial. Every commissioned officer received extensive training in military law and, thereafter, was deemed qualified to serve as a prosecutor (trial counsel) or defense counsel in trials by Special Court-Martial, the maximum sentence imposable then being forfeiture of two thirds pay for six months, confinement at hard labor for six months, reduction to the lowest enlisted pay grade, and a bad conduct discharge (“six, six, and a kick”). Three commissioned officers, none of whom had to be a lawyer, comprised the court, and the president of the court, the senior of the three, ruled on objections and motions.

General Courts-Martial used judge advocates as defense counsel, trial counsel, and the “law officer” who advised the members of the court on the law. However, the president still made the final rulings on matters of law.

The 1968 amendments provided that accused in most special and all general courts-martial had a right to lawyer counsel. A judge advocate would be detailed as defense counsel, and the accused could, if he wanted, retain civilian defense counsel. The trial counsel in a special court could still be any officer, but in practice, was also a judge advocate. Most importantly, the amendment also created the “military judge,” a judge advocate who had been certified by the Judge Advocate General of his service as qualified to serve as a judge and who had been specially sworn to act in that capacity.

A judge advocate is an officer who is a member of the bar of the highest court of some state and who has received special training in military law. Upon completion of that training, he is designated a judge advocate by the Judge Advocate General of his service and is specially sworn as a trial and defense counsel. In other words, contrary to some folks’ belief, a military lawyer is, indeed, a lawyer.

The other two principal actors in the military justice system are the convening authority and the staff judge advocate.

Convening Authority. The convening authority is a commanding officer or other person who, by service regulation, is authorized to convene a court-martial. Almost always a commanding officer, the convening authority is limited by regulation to the level court he may convene. In the Marine Corps, for instance, only a battalion commander (usually a lieutenant colonel) may convene summary and special courts-martial. Commanding Generals are usually the convening authority for general courts-martial.

In former practice, the convening authority had great leeway in determining the personnel of the court, but in modern practice, the military judge is appointed and made available by the regional judiciary activity, the trial counsel is designated by the staff judge advocate or local legal support activity, and the defense counsel is appointed and made available by the regional defense activity. The convening authority is still allowed to select the members of the court, subject to the standards set forth in the UCMJ.

Unlike in civilian criminal law, their is no such thing as prosecutorial discretion. Unlike distict attorneys and United States attorneys, the lawyers do not decide what cases go to trial--that is a command function exercised by a convening authority. Plea bargains must be approved by the convening authority, and he alone may limit the sentencing authority of the court.

After trial, the convening authority must take action on the record of trial. The most frequent actions taken are to approve the findings and sentence imposed, but he may, in his sole discretion,reverse any findings of guilty and may decrease any sentence imposed. Obviously, he cannot reverse a finding of not guilty or increase the sentence.

Staff Judge Advocate. The SJA is the principal legal advisor to a Commanding General and, when directed to do so, also advises subordinate commanders in the chain of command. The SJA has significant responsibilities when it comes to general courts-martial.

After an Article 32 investigating officer submits his report and recommendations, the SJA must give written advice to the convening authority regarding each charge and specification. His advice must specifically affirm that (1) the specification alleges an offense under the UCMJ; (2) the specification is warranted by the evidence indicated in the report of Article 32 investigation; and (3) a court-martial would have jurisdiction over the accused and the offense. He must also recommend the action that the convening authority should take, i.e., return the charges to the officer exercising special court-martial jurisdiction, or refer to trial by general court-martial, or refer the charges to a GCM as capital (or non-capital).

The convening authority is not required to follow that advice, but if he disregards the advice, he does so at his peril.

10 December 2011


On paper, the only two college football teams playing today have losing records. The team from "Crabtown" is 4-7 and the team that often plays "outlined against a blue-gray October sky" is 3-8. Doesn't matter.

Tonight one team will celebrate a winning season while the other will have to endure another 365 days with the memory of the loss of a single game. Today is Army-Navy.

Navy now leads the all-time series with a record of 55 wins, 49 losses, and seven ties, but that is irrelevant, for both teams will come ready to play. Each year, this game is a new season in and of itself. Today is Army-Navy.

Among the arcane knowledge that each plebe must learn and spit out on command is “How many days until Army [Navy], Mister?” The calendar starts anew tonight because today is Army-Navy.

The seniors will not be going to the NFL—they’ll go to a much tougher league where the opponents play by no rules and play for keeps. Some may be gone from this earth before the next Army-Navy game, adding their names to hallowed lists at West Point and Annapolis.

How important is this game? One morning as we stood at a morning Colors formation, the band ended with the ceremonial playing of Anchors Aweigh, followed by the Hymn. I was standing next to a Major who is an Annapolis graduate. As the band played Anchors Aweigh, Eddie, whispered to me, “I was 31 years old before I learned that the last words to that song are not ‘Beat Army.’”

How important to the Nation is the Game? Read this.

This morning they are comrades in arms. This afternoon, they will play their respective hearts out against each other . . .and then stand at attention for their own and their opponent’s alma mater. And each member of the team will know and sing his school’s song—how many players on other college teams can do that? And tonight they will once again be members of a bigger team. God bless ‘em all.

When he was Superintendent of the Military Academy, General Douglas MacArthur said of this game, “On this field of friendly strife is sown the seeds that on other days and other fields will bear the fruits of victory.”

SO, Gerry Owen, Army. Get up and get moving. Follow me.

Don’t give up the ship, Navy. Semper Fi.


02 December 2011


Oh, the 2012 campaign has started and, once again, the Department of Labor is doing its part for the President.

DOL announced today that in November, the unemployment rate had plummeted 4 tenths of a percent to 8.6%. Just what the President needed in order to bolster his flagging performance. There was a footnote, however, that was overlooked by his hypesters:

To get to there, DOL counted 100,000 new hires (just in advance of the Christmas holiday shopping season; I wonder how long they will remain employed?) and stopped counting over 300,000 folks who have been unemployed for so long that DOL figures that they have stopped looking for work. I repeat: 300,000 unemployed people are no longer counted as unemployed because a bunch of accountants and statisticians say they no longer count.

In fact, DOL does not count 2.6 million persons who “were marginally attached to the labor force,” explaining that “[t]hese individuals were not in the labor force, wanted and were available for work, and had looked for a job sometime in the prior 12 months, . . . ‘[but] were not counted as unemployed because they had not searched for work in the 4 weeks preceding the survey.” (Emphasis added.)

So, for campaign purposes, the DOL report was good news for David Plouffe and Barack Obama. Not so good for the 300,000 and the 2.6 million, but what does that matter in the grand scheme of presidential politics?.

I have long proposed that the Department of Education is unnecessary, is a federal usurpation of what is a local responsibility, and ought to be closed, along with Energy and another one that I cannot think of right now. I may be wrong. Maybe the President, his campaign staff, and their liaisons at Labor need to go back to school to learn how to count.

01 December 2011


This is a post that has been percolating in my junk box mind for some time. I first considered it in November 2008 and then again last year when Scott Brown was elected to the United States Senate. Now, as we enter the run-up to the 2012 general election, the pundits and prognosticators are once again considering whether or not one of the two parties can garner a “filibuster-proof” Senate.

Contrary to the popular belief in certain elements of the Democrat Party, filibuster is not an idea conjured up by George W. Bush. The filibuster dates from at least as early as the Roman Senate. As anyone who has ever seen Mr. Smith Goes To Washington knows, the filibuster was an art form in the early 20th Century. In fact, some of the most effective users of the filibuster in the recent past have been Democrat senators.

In 1946, Southern senators (Democrats all) blocked a vote on a Democrat-proposed bill to establish a permanent Fair Employment Practices Committee, an early version of what ultimately became the EEOC. The filibuster lasted weeks, and after a failed cloture vote, the bill was withdrawn even though there were sufficient votes to pass the bill itself.

In 1953, Senator Wayne Morse (I. Or.) set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. Senator Strom Thurmond (D.SC) broke this record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes. The bill ultimately passed. One of the most notable filibusters of the 1960s occurred when southern Democrat senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by undertaking a filibuster that lasted for 75 hours, which included a 14 hour and 13 minute address by Senator Robert Byrd. The Senate ultimately invoked cloture and the bill passed.

The filibuster in the Senate actually came about as a result of a rules change in 1806. Prior to that, debate could be ended by any senator who made a motion "to move the previous question." Such a motion was not debatable, took precedence, and, if adopted by the body, led to an immediate vote on the pending matter. (For any Presbyterians out there, yes, there were two votes. The first on the motion to move the previous question and the second on the actual matter under debate. Just like in your most recent meeting of the presbytery.)

No substitute means of forcibly ending debate was adopted raising the possibility of filibuster. (Interestingly, the House rules also allowed for filibuster until 1842, when a permanent rule limiting the duration of debate was created. This occurred, in part, because of the growth in the size of the House as population grew and more States were added to the Union.)

As a result, a senator, or a group of senators may speak for as long as they wish and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" (usually 60 out of 100 senators) brings debate to a close by invoking cloture under Senate Rule XXII. The procedure for "invoking cloture," or ending a filibuster, is as follows:

• A minimum of sixteen senators must sign a petition for cloture.
• The petition may be presented by interrupting another Senator's speech.
• The clerk reads the petition.
• The cloture petition is ignored for one full day during which the Senate is sitting. For example, if the petition is filed on Tuesday, it is ignored until Thursday.
• On the second calendar day during which the Senate sits after the presentation of the petition, after the Senate has been sitting for one hour, a "quorum call" is undertaken to ensure that a majority of the Senators are present.
• The President of the Senate or President pro tempore presents the petition.
• The Senate votes on the petition; three-fifths of the whole number of Senators (sixty when there are  no vacancies) is the required majority; however, when cloture is invoked on a question of changing the rules of the Senate, two-thirds of the Senators voting (not necessarily two-thirds of all Senators) is the requisite majority. (This is commonly referred to in the news media as a "test vote" because if cloture is not passed, modern practice is to simply not bring the bill to the floor for debate.)

After cloture has been invoked, the debate is tightly condensed:

• No more than thirty hours of debate may occur.
• No Senator may speak for more than one hour.
• No amendments may be moved unless they were filed on the day in between the presentation of the petition and the actual cloture vote.
• All amendments must be relevant to the debate.
• Certain procedural motions are not permissible.
• The presiding officer gains additional power in controlling debate.
• No other matters may be considered (on that track) until the question upon which cloture was invoked is disposed of.

After civil rights filibusters in the 1960s, the Senate adopted a "two-track system.” Before the introduction of tracking, a filibuster would stop all Senate business. Tracking permits the majority leader – with unanimous consent or the agreement of the minority leader – to have more than one bill pending on the floor as unfinished business. Under the "two-track system", the Senate can designate specific periods during the day when each particular matter will be considered. This in and of itself limits the most significant effectiveness of the filibuster, i.e., bringing the Senate to a halt.

Nonetheless, the parties, especially the Democrats, seem to be terrorized by the prospect of a filibuster. As a result, since the 1970s, cloture has generally become a pre-emptive rather than an offensive weapon, i.e., being used in deciding whether to call up a bill rather than being used in the middle of debate. And that puzzles me.

Why are the parties so afraid of filibuster? With a couple of exceptions, they are not successful in blocking adoption of the proposed legislation. I can think of two reasons.

First, during a filibuster, more of the people may actually pay attention to what is going on in Washington. They may actually agree with the dissidents and may contact their senators with requests that they vote with the filibusterers. I am almost certain that that is why Harry Reid opted to bring the House version of Obama-care up for a procedural vote rather than allow a filibuster (which became possible when Scott Brown was elected to replace Ted Kennedy) that might have led to defections in his own caucus.

Second, both houses of the Congress have adopted such short work weeks—usually Tuesday through Thursday—that a filibuster would interfere with the more serious concerns of most members: going home to raise money for the next election. Who wants to sleep on a cot in the cloakroom when he or she could be adding to campaign coffers.

We as citizens ought be appalled. If a proposed bill is so important to the good of the Republic, the filibusterers will look silly. (I almost wrote “look like idiots.” The I remembered Mark Twains’ famous observation, “Reader, suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.”)

And if it is so bad for the Republic that only the ruling class wants it, the filibusterers may arouse public sentiment and actually get the voters to give appropriate direction to their elected senators.

So, forget this cowardly abridgement of the kind of free speech we really need. Let ‘em talk.