A REPLY TO PROFESSOR BEAU WESTON

One of the blogs I follow regularly is Gruntled Center. The author is William J. “Beau” Weston, PhD, a professor at Centre College in Danville, Kentucky . Dr. Weston is the Chair of Centre’s Anthropology and Sociology Program and is the College’s Van Winkle Professor of Sociology. A self-described “Democratic Party foot-soldier, and general busybody,” his blog is an interesting, thoughtful, well-written body of informal work, albeit, understandably, heavy on sociology. I commend it to thoughtful readers of any political persuasion. I write this introduction to assure Professor Weston of my respect for his writing and his approach to blogging and of my continued patronage of his blog.

That is why it pains me to say that his blog entry dated January 4, 2012—his most recent at the time I write this—ignores history and represents the worst of the writing associated with sociology and the other “fuzzy” sciences. I write this as one whose undergraduate comprehensive major was social science education, which included required a minimum of 45 hours of history, sociology, political science, and economics courses.

The blog entry, entitled “Obama Is Doing Something Wrong in Fighting Terrorists ,” caught my attention because on that point, the Professor and I agree. After reading the entire piece, however,I must say that that is the only thing on which we agree, at least on this topic.

His complaints are purely those of the left wing of his party, a group which apparently believes that the political world is rational and susceptible to reasoned argument. He writes

On his first day in office, President Obama promised to close the Guantanamo prison within a year. He did not.

Last year he ordered the killing of a U.S. citizen, Anwar Awlaki, by a drone attack in Yemen.

Last week he signed the defense bill which allows the indefinite detention without trial of suspected terrorists.

Each of these acts is wrong in itself and dangerous as a precedent.

To which I respond, “Whoa, there, Cowboy.”

The view from the ivory tower of the academy is, in my experience, often suspect, but in this instance, the three examples cited are just plain wrong. Those of us who spent large parts of our adult lives and professional careers facing down the enemies of our Republic have an entirely different view of life.

To his credit, he also writes

I normally support President Obama, so I have tried hard to understand why he did these things, and what principle or theory might lie behind them. I have not come up with a good account. National security, especially when dealing with terrorists, necessarily includes facts that can't be revealed to the public. Perhaps there are good reasons for these acts that are now hidden.

Here are my best guesses.

Let’s look at his complaints and his “guesses.” Guess No. 1 says

Some of the Guantanamo prisoners were so badly tortured under the previous administration that they cannot effectively be put on trial or released. Since their testimony was acquired by torture, it is worthless. The Obama administration ended the torture, but cannot undue what was done before.

As pleasing as it may be to the left-wing base of the Democratic Party to blame everything wrong with the world on former President Bush, they ignore the fact that we are dealing with fanatics who have no respect for Western history and culture. They are people who would, if given half a chance, eliminate the left as the first order of business. After all, the left espouses the very things that the fanatics hate the most—freedom of thought and expression, personal liberty, and freedom to worship, or not worship, as one pleases.

I also doubt that any of the Gitmo prisoners was “tortured” so badly that they cannot be exposed to examination. I do not often disagree with Senator John McCain, who really was tortured by the North Vietnamese and their imported Cuban torturer, but waterboarding is not torture. It is extremely unpleasant, terrifying even, but after it is over, the subject does not need to reduce dislocated joints or set broken bones.

No, these are just bad guys who need to be isolated from the world. Sam Yorty was once asked if he thought the death penalty deterred murder.

“No,” he replied. “You don’t kill a rabid dog to deter other dogs from getting rabies. You kill him so he doesn’t bite anybody.”

In the case of Gitmo, we have locked up a bunch of people whose dearest goal in life is to kill as many Americans as possible. The President—in fact, our constitutional system—acknowledges that the first order of business of any government is to “provide for the common defense” of its people. I remember seeing President-elect Obama coming out of his first full-fledged national security briefing a day or so after the election. He had a deer in the headlights sort of look. I “guess” he was thinking, “Damn! They weren’t kidding. It is a dangerous out there. Maybe Gitmo is not so bad after all.”

Then there is Guess No. 2:

A very small number of American citizens, such as Awlaki, have indeed become enemy combatants. Awlaki himself openly proclaimed this. Since he was in hiding in enemy territory, it was not practical to capture and try him as a citizen has a right to receive. The drone attack was the only practical way to fight that enemy, as we have with many other non-citizen enemy individuals.

On this we agree, but I do not see this as anything to apologize for. Awlaki was a leader of a confederation of sorts who openly declared war on his own country. Abraham Lincoln led our country in our bloodiest war against people who he always claimed to be citizens of the United States. We specifically targeted Admiral Yamamoto in WWII, because if he was dead, the Japanese cause suffered. The same goes for Awlaki and anyone else who takes up arms against the United States.

As the Professor acknowledges by implication, all Awlaki had to do to avail himself of his rights of citizenship was to submit himself to its judicial process.  He did not.  To quote the old Crusader in Indiana Jones and the Last Crusade, “He chose poorly.”

Then there is Guess No. 3:

When signing the National Defense Authorization Act, the president issued a statement that he objected to the provisions of the act that allowed for indefinite military detention and would not allow them on his watch. His opponents put this poison pill in the law precisely to embarrass the president. Since he had to sign the law in order to pay the troops, he accepted this compromise, while still rejecting this provision of the law.

This guess places me in a quandary. I like signing statements.   They have lengthy historical precedent dating back to the earliest days of the Republic. See, Presidential Signing Statements: Constitutional and Institutional Implications, at 1. (Congressional Research Service, September 17, 2007) [“Presidential signing statements are official pronouncements issued by the President contemporaneously to the signing of a bill into law that, in addition to commenting on the law generally, have been used to forward the President’s interpretation of the statutory language; to assert constitutional objections to the provisions contained therein; and, concordantly, to announce that the provisions of the law will be administered in a manner that comports with the Administration’s conception of the President’s constitutional prerogatives. While the history of presidential issuance of signing statements dates to the early 19th century, the practice has become the source of significant controversy in the modern era as Presidents have increasingly employed the statements to assert constitutional and legal objections to congressional enactments.” Id.]

By far, the most prolific user of such statements since 1980 has been President Clinton who issued 381 statements, two and one-half times as many as President George W. Bush. During his presidential campaign, candidate Obama rejected the use of signing statements. He was asked at one rally: "when congress offers you a bill, do you promise not to use presidential signing statements to get your way?" Obama gave a one-word reply: "Yes." He added that "we aren't going to use signing statements as a way to do an end run around Congress." A month and a half after taking office, President Obama issued his first signing statement.

As a proponent of checks and balances, I take the position that Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) has been misinterpreted since it was decided. In Marbury, the Court held that it has the power to declare a law enacted by Congress and signed by the President to be, nonetheless, unconstitutional. Such a right is nowhere mentioned in the Constitution, but neither has the decision been seriously doubted, at least in the past 150 years.

What has been ignored is that the three branches of the national government are co-equal. Even the Court acknowledges that by means of the presumption of constitutionality of every federal law that comes before it.

I tend to side with President Jackson, in his view that the President has an equal right to disagree with the Congress and the Supreme Court and to ignore their decisions on constitutional grounds, albeit at the peril of impeachment. In Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832 (1832), the Court ruled that Georgia, which was in the process of evicting the Cherokee Nation from lands within Georgia’s borders, could not impose laws in Cherokee territory, since only the national government — not state governments — had authority in Indian affairs. President Jackson had no desire to get mixed up in that issue and, famously, said “John Marshall has made his decision; now let him enforce it! ... Build a fire under them. When it gets hot enough, they'll go.”

My real objection to Guess No. 3 is Professor Weston’s assumption that “[h]is opponents put this poison pill [the indefinite military detention provision] in the law precisely to embarrass the president.”

I suggest that it was Congress exercising its Constitutional authority to make laws. (Putting the President in a tough political position was just a side benefit.)

The President’s Attorney General has made no attempt to hide his desire for a high profile trial for terrorist leaders—one that, as a former prosecutor, I know lurks in the heart of every district attorney. This is understandable from a bureaucratic turf war perspective. It is inexcusable from the perspective of national defense. In this case, Congress exercised its right to curtail over-reaching by the executive branch and the President has exercised his right to disagree. Now we must wait to see what, if anything he will do to follow up on his signing statement.

In summing up, Dr. Weston makes the usual mistake that idealists make in stating their view of the world. He assumes, as do college kids arrested for drug offenses in a harsh Orient, that the Constitution is applied and approved of world-wide.  He says

. . . I believe that President Obama has not done enough to fight these enemy individuals and organizations in a way that is in accord with American constitutional principles. This is my biggest disappointment with the Obama administration.

Our enemies will use any weapon that they can in their single-minded hatred for America. If they can use our own Constitution against us, all the better. The very rights that they and their supporters—both active and benign—claim for themselves, they deny to us and their other enemies.

As I said earlier, it is nice up there in the ivory tower. It’s a lot messier in the real world, and Beau Weston is an intelligent observer.  He ought to know better.

OF SISTERS, PICK UP TRUCKS AND DUFFY DAUGHERTY

Apparently, one of the delays in counting the last four percent of the caucus votes in Iowa was caused by a man who was driving his precinct’s count to the election center. The folks at Fox had a couple of laughs about it, but the mental picture stuck. The first question my wife asked me this morning was, “Did the guy in the truck get there?”

It was an interesting night. There were indeed clichés spouted, and the focus immediately shifted to New Hampshire.

This morning, however, the Romney camp must be channeling the ghost of Hugh D. Daugherty. Duffy Daugherty was the first observer to note that “A tie is like kissing your sister.” Rick Santorum, who was polling miserably until the last week or so, came within eight votes of taking the lead. That is not the image that a candidate who consistently polled at 25 percent and won 25 percent should want to take into the next round.

The Iowa caucus goes into the record books and now it is on to the Granite State where Romney has nothing to gain and a lot to lose. If “Sis” gets another peck on the cheek, Romney could be in trouble.

What is absent from this process so far is any noticeable desire on the part of the people to ask for real debate. With the exception of Paul, whose ideas range from interesting to absolutely wacky, few of the candidates of either party are talking about any solution to the Nation's woes other than "elect or re-elect me."

I am particularly concerned that the Newt Gingrich we saw in Iowa was not Newt Gingrich, author and professor. He has good ideas, but the process we have developed does not want ideas. Ideas are dangerous because they don't fit into the few minutes allocated between commercial breaks. Cat fights and mud slinging make for easy headlines and ratings.

The American people have been turned into a race that despises real intellectual discourse and needs any discussion to come in 15 minute blocks. Read the Lincoln-Douglas debates. Today, Abe and Steve would have been back home in Illinois in a flash. And that is frightening.

It is time for candidates to get the courage to talk honestly with the American people rather than play it safe. As Duffy Daugherty also said, “When you are playing for the national championship, it's not a matter of life or death. It's more important than that.”

A NOTE FOR, AND WINK AND A HAT TIP TO, MY FRIEND JODY HARRINGTON: I tend to agree with your prayer "For those oppressed by sports analogies," although I allowed literary license to prevail in the last couple of blogs. I'll try to find a new angle. "It's more important than that."

IOWA: IT'S OPENING DAY

It is January in a year divisible by four, and you know what that means, sports fans. “The Olympics,” you say? I say “nay. nay.”

Today marks the formal beginning of the 2012 presidential campaign, the greatest show on earth. Now some out there, especially those fans in Iowa and New Hampshire, may suggest that the season really started last summer, or even earlier. As one who believes that the first day of Spring comes in mid-February—when pitchers and catchers report—I sympathize, but, to be brutally honest, the past eight months have just been the Florida Instructional League for the boys and girl.

Now, I may have shocked some of the fundamentalists baseball purists. How dare I compare a mere political campaign to baseball, they wonder? Well, consider this.

I am reminded of the scene in Bull Durham when Crash Davis works with Nuke LaLoosh on his clichés. “You're gonna have to learn your clichés. You're gonna have to study them, you're gonna have to know them. They're your friends. Write this down: ‘We gotta play it one day at a time.’"

Nuke replies, “Got to play...... it's pretty boring.

Crash nods. “'Course it's boring, that's the point. Write it down.”

Thus, Nuke learns to respond with his stump speech clichés. “We have to play them one day at a time.” “I'm just happy to be here and I hope I can help the ball club.” “I just want to give it my best shot and the good lord willing everything will work out.”

Likewise, if you listen closely tonight and in the days to come, you will hear many of the following:

“The final score is the only statistic that matters.” [“Iowa is just one state. Wait ‘til the convention.”]

“We shocked the world today.” Santorum, Bachman, or Huntsman wins Iowa.

“They're in a must win situation.” [“(Insert candidate’s name) is going to have to pull out a win in (insert State) or he’s done for.”]

“Turnovers killed us.” Think Bachman on Concord, NH, or Cain on women, or Perry on “three agencies.”

“They made the big plays and we didn't.” [In every concession speech.]

“There is no tomorrow.” We’ll start hearing this one tonight for every candidate who decides to hang on for New Hampshire.

“This is a hard loss to swallow. I'm looking forward to the challenge. We need to turn it up a notch. We have to stay focused.” Listen for this one every time a front-runner comes in second (or worse.)

“We're just glad to get out of here with a win.” Any winning candidate who does less well than expected.

“We just have to put this loss behind us.” Ditto.

There is one you probably will not hear: "It ain't over 'til the fat lady sings." Politically incorrect--it discriminates against dancers and other non-vocally musical artists.

That being said, ready or not, sports fans, here it comes—the campaign of 2012. I have often thought that if we could charge admission for the next year, we could pay off the national debt.

To quote that eminent American philosopher, Charles Dillon Stengel, “You look up and down the bench and you have to say to yourself, 'Can't anybody here play this game?'”

Or, as his disciple, Lawrence Peter Berra, once observed: “It’s déjà vu, all over again.”

‘SCUSE ME, JOHN,ERIC, PAUL, HEY, ANYBODY?

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.

A PRIMER ON COURT-MARTIAL PRACTICE (PART I)

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.

GO NAVY! BEAT ARMY!

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.

Oh, yeah….GO NAVY! BEAT ARMY!

LIES, DAMNED LIES, AND STATISTICS REDUX

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.

LET ‘EM TALK

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.

NEWT GINGRICH FOR PRESIDENT

As one who has watched presidential elections since 1960, I have often muttered to myself, “Is this really the best we can do?” With the exception of Barry Goldwater, Richard Nixon, and Ronald Reagan, I have not been enamored of any candidate and have often regretted that there were no better options to vote for. (I was not old enough to vote for either John F. Kennedy or Barry Goldwater, but would have done so gladly. Kennedy because I was still under the sway of my beloved yellow dog Democrat Mother and Goldwater because he was right.)

After Nixon’s self-inflicted fall from grace, I was so angry with the system that I actually cast my vote in 1976 for Jimmy Carter, the single worst voting mistake I have made in my life. The man wanted written guarantees that no Iranians would be hurt before he would allow the failed rescue attempt in 1980, fer cryin’ out loud. My bad!

Over the years, I have wondered why Sam Nunn of Georgia, Scoop Jackson of Washington, and Joe Lieberman of Connecticut were not acceptable to lead the Democrats rather than George McGovern, Carter, or John Kerry (a particular despicable choice). The only time I ever felt any compassion for Kerry was in 2004 when my late brother told me that he would not vote for Kerry because “anyone stupid enough to fight in your (sic) war is not smart enough to be President.” (The sympathy for Kerry did not last long.)

On the Republican side, Jack Kemp, Pete Wilson, Paul Laxalt, and, until now, Newt Gingrich have been overlooked.

About 10 years or so ago, I happened on a class taught by then former-Congressman Gingrich which was running weekly on Saturday mornings on either C-SPAN or PBS. It was fascinating, and I began to read his books. Still, I lamented, this guy is too intelligent for the American electorate. He has actually thought through our national problems and has come up with pragmatic, responsible solutions.

This year, as it began to look as if the GOP had decided to settle for a pretty face and no spine, such as Mitt Romney or Rick Perry, I was unsettled at best. Why not Newt Gingrich?

And look what has happened! People are starting to listen, and when they do, they realize that Newt is speaking to them in words that make sense.

Oh, the naysayers will bring up a lot of irrelevant stuff in an attempt to derail this bid. He has had three wives. He can be a tough SOB to work for. He is a conservative.

He will never satisfy some people. If the American people had known about Jack Kennedy’s roving eye, perhaps Nixon would have been President in 1960. I am not a big fan of divorce, but it happens to the best of couples. All I can say on that point is that the Democratic Party better not go after him after insisting for years that Bill Clinton’s extra-marital escapades were irrelevant to his ability to govern. At least Newt married ‘em, and they were all well beyond the age of consent.

A President needs to be demanding. I’d rather a President who demands excellence from his people and who knows and tells the people what he believes in and stands for. We’ve got the alternative now—one who stands for whatever his most important supporters demand. I mean why would labor support a guy who thinks 20,000 good jobs in red states are less important than satisfying a bunch of tree huggers in birkenstocks?

With Gingrich, we’ve got 30 years of writing and thinking about issues that are truly important and are legitimate federal concerns: national defense, economic policy, and foreign policy. Thirty years ago, the current President was still a student at Columbia, and until 2004, he had never had any relevant experience in federal government. Even today, he reminds me more of Richard J. Daley than of Lyndon B. Johnson.

Newt is a conservative, but one who is an actual intellectual and pragmatic conservative. Witness his immigration proposal. At least, he wants what is best for America and not just for the hyphenated group of the week that will give votes in exchange for bread and circuses.

Newt Gingrich for President.

PS. Let the “hrumphhh’s” begin, Sis. 8>)

LET THE GAMES CONTINUE

Three news items converge.

First, US News & World Report reports that the President has set a new record. One year out from the general election, his job approval rating plummeted below that of Jimmy Carter’s. Carter, described by the article as “considered among the 20th century's worst presidents,” was at 51 per cent at this point, and no President in the past 60 plus years has been at lower than that one year out—until now. The President didn’t just squeak by Carter, either. He blasted him out of the way as he plunged to a job approval rating of 43 per cent.

So, what’s a guy to do?

Well, his party is rushing to help by proposing to cut taxes, but only if they can raise them. It seems that the Senate will propose to enlarge and extend the payroll tax cut first passed at the President’s request last year. However, they insist that before they cut taxes, they must first be allowed to raise income taxes on a few people by way of a tax surcharge. Sort of a John Kerry “I was against it before I was for it” moment. The target? Milionaires and billionaires, of course.

And they know that that is a loser, even with some of their own caucus. And that grand bluffmaster, Harry Reid already concedes that he will probably have to drop the surtax to get passage. Harry, bubba, we really gotta review that negotiation tactics class.

Obama is desperate for a win on an issue that his left wing base rabidly wants. So we are condemned to hear more whining from Reid, Pelosi, and Obama.

And no one in the media is calling the President on this. According to Politico ”The payroll tax holiday extension has been a top priority for Obama, who has traveled the country in recent days to try to drum up public support for it. In Manchester, N.H., last week, he hit Republicans for opposing tax increases in general but supporting a payroll tax cut extension.” Really? Did he mention that he is in favor of cutting taxes so long as he can raise them? That line was probably cut from the speech before it went to the teleprompter.

The bottom line is this: the President is willing to work with the Congress, just so long as he gets exactly what he wants. He gets to claim a victory on cutting taxes for the middle class and the Republicans get to betray the people who elected them. Just like wrestling with a pig--everybody gets muddy and the pig loves it.

Here's an idea: If the payroll tax cut is really a top priority, and if the President wants compromise, why not just offer the tax cut?

As we used to say in the old Corps, "Nevah hatchee." If he did that, then his base will claim that he has abandoned their ardent desire for a class war.

And expect it to continue. A man who knows how to be a candidate, but not how to be President, will hit the road again tomorrow. Obama 2008 will just merge into Obama 2012 and continue the medicine show, complete with snake oil salesman-in-chief.

According to Jay Carney, the Press Secretary, in today's briefing the American people expect the President to be constantly on the road visiting them. When asked why only battleground states were being targeted, and whether or not these are really campaign stops being financed by the American people, Carney suggested that the President has a duty to get out of the office and visit the people. Any help to the campaign is just a secondary blessing, I suppose.

I would suggest that what they really need is someone who leads. Heaven knows, I’m no fan of LBJ, but before the debt limit debacle last summer, he would have had the Speaker and Harry Reid in for drinks, threats, and a little wood shedding! For both of them! For all of his ills, he knew how to be President.

But the current White House is oblivious. So, get your popcorn, settle back in your seats, and watch the next round in this farce.