Inside the Beltway Drama: The Running of the Interns

Buzz Feed Politics has a nice humorous little piece (with streaming audio and video) on the little people in the drama of getting the news out about breaking U.S. Supreme Court decisions.

Next Steps In Same Sex Marriage Struggles

The next steps in the ongoing efforts to secure same sex marriage rights will mostly take place at the level of state constitutional amendments or litigation to declare state constitutional amendments already in place to be unconstitutional through litigation.  But, there are a few exceptions.

Options short of constitutional amendments to secure same sex marriage:

Four fairly socially liberal states are obvious targets for action short of state constitutional amendments:

* New Jersey, which has statutory domestic partnerships and no state constitutional ban or express statutory prohibition of same sex marriage, could simply amend its laws by statute or interpret them judicially. 

* The situation is similar in New Mexico which has no express ban of same sex marriage but no express authorization for it, and no domestic partnership or civil union legislation on the books.

* Illinois, which has civil unions and a statutory provision that marriages cannot be same sex, could amend its statutes.

* Pennsylvania has no state constitutional ban on same sex marriage and could amend its state statutory prohibition.

There are three other states where a mere statute could allow for same sex marriage, but prospects of passage in these far more socially conservative states are less strong: West Virginia, Indiana, and Wyoming.

Strong prospects for state constitutional amendments:

Colorado, Nevada and Oregon all have same sex marriage bans, but also have civil union legislation on the books and are fairly socially liberal.  These states also allow state constitutions to be amended by initiative, which eliminates the need for a bipartisan consensus to propose a change.  These states are the best prospects for state constitutional amendments.

Possible new civil union jurisdictions:

Alaska, Arizona, Montana, Missouri, Tennessee, and Mississippi have state constitutions that ban same sex marriage and may be more difficult to secure state constitutional amendments in than states that have civil unions, but may be jurisdictions where civil union statutes could be adopted.

Other states:

Nineteen others states have state constitutional bans on same sex marriage and civil unions.  One of those, Wisconsin, does have domestic partnership legislation (recognizing same sex couples in a manner not comparable to marriage).

Of these Wisconsin, Michigan, Ohio, Virginia, Florida, Louisiana, and Arkansas are relatively socially liberal or moderate compared to the others and might be favorable venues for mounting efforts to amend state constitutions.  Prospects for state constitutional amendments in the other twelve states, which are fairly socially conservative seem bleak at this time.

A nation divided:

Yesterday's U.S. Supreme Court decisions took care to avoid a federal constitutional requirement that same sex marriage or civil unions be allowed by states.  The momentum of gay rights gains and changing public opinion is likely to bring the divide to roughly 50-50 when the dust settles in a few years domestically, although momentum internationally may continue.  But, once that point is reached it may be very difficult to shift the balance politically.  Absent federal constitutional law challenges, the issue will reach an uncomfortable deadlock, unless public opinion continues its rapid evolution on these issues even in socially conservative states.  Multistate corporations which will be required to have non-discrimination policies in some states where they operate may be one important driver of this trend, the military which has integrated in respect to sexual orientation, may be another.

If a deadlock is reached, full faith and credit issues as sane sex couples and their children who marry in one state and move to (or conduct business in) another may predominate.  It is likely that couples married in one state who live in a state that does not recognize same sex marriage will still be considered to be married for federal law purposes, but that state law need not recognize these unions.

Big Day Tomorrow For Gay Rights At SCOTUS

The U.S. Supreme Court will rule in two key gay rights cases tomorrow morning (at about 7 a.m. MDT).  I am writing now in the event that I don't get a chance to do so tomorrow morning and as a preview of tomorrow's decisions.

One of the cases concerns the validity of the provisions of the Defense of Marriage Act's provisions prohibiting the federal government from recognizing same sex marriages recognized under state law.  The Obama administration now concedes that this law is unconstitutional as the lower courts have held, but other parties have claimed standing to litigate the argument that the law is constitutional in the U.S. Supreme Court. 

The procedural issue of the standing of those parties to litigate the constitutionality of the act could resolve the matter (if they lack standing to defend it, the law will be held invalid).  On the merits, one of the main issues is that the definition of marriage for federal law purposes is a state law matter not within the jurisdiction of the federal government.  The conventional wisdom expectation based upon oral arguments in the case is that this part of DOMA will be declared unconstitutional by the US Supreme Court on some ground, although the exact grounds are less clear.  But, of course, the U.S. Supreme Court sometimes surprises us.

Advocates for gay rights are fairly unanimous in hoping that SCOTUS will strike down the portions of DOMA pertaining to the federal government's recognition of same sex marriage, which is particularly imperative now that gays and lesbians can serve openly in the military.

The other gay rights case to be decided tomorrow concerns the constitutionality of California's Proposition 8.  A federal trial court and the 9th Circuit Court of Appeals have held that the Proposition, which repeals same sex marriage in California, is unconstitutional. 

A variety of rulings on the merits or on standing issues in this case (which the usual government officials have refused to defend), with varied forms of practical impacts, are possible.  For example, a ruling could conceivably (1) reverse the lower courts and uphold Proposition 8 in California (which would not impact same sex marriage legislation elsewhere), (2) could invalidate Proposition 8 in some manner that does not have precedential effect in states other than California, (3) could invalidate laws banning same sex marriage in the 9th Circuit, (4) could invalidate laws banning same sex marriage nationally, (5) could invalidate laws banning same sex marriage in any jurisdiction that has previously had legal same sex marriage, or (6) could invalidate laws banning same sex marriage in any jurisdiction that has civil unions.  (I will spare my readings in this short preview post, an explanation of precisely which rulings on which issues would give rise to which outcomes.)  Like the DOMA case, this one presents both standing issues and merits issues, which is one of the reasons that so many outcomes are possible.  It was not at all clear how the Court would rule in this case, which is the hottest case of this year's term, based upon oral arguments in the case.

There is not a consensus among gay rights advocates over what outcome is most likely or best advances the cause (other than a national declaration that bans on same sex marriage are unconstitutional, which seems unlikely, based upon the oral arguments in the case).

Chief Justice Roberts is believed to be the author of the majority opinion in one of the cases, and Justice Kennedy is believed to be the author of the majority opinion in the other (based upon opinion writing assignments in other cases so far this term). 

A Roberts opinion invalidating DOMA on federalism grounds, and a Kennedy opinion reaching some sort of compromise middle ground outcome in the Proposition 8 case seems most likely. 

A third, far less high profile federal statutory law case unrelated to gay rights will also be ruled upon tomorrow morning.

Disappearing Civil Jury Trials In Texas

In 2012, there were fewer than 1,200 civil jury trials in state district courts in Texas. That’s only a 1 percent decline from 2011, but a 64 percent decline from 1997, when there were 3,369 jury trials.

The federal courts in Texas have seen an equally significant decline. U.S. district court judges conducted 360 civil jury trials in 1997 but only 135 last year [a 63% decline].

These jury trial rates are at a forty year low for Texas.

In 2012, the population of Texas was 26,403,743, and increase of 36% from the 19,439,337 people who lived in Texas in 1997.

Adjusted for population growth, the decline in jury trials in Texas over the last twenty-five years (which has been almost identical in federal courts and in state district courts) has been about 74%.  The fact that Texas is more or less typical of the nation, and that the downward trend in jury trial utilization has largely leveled off (declining only 1% from 2011), doesn't make it any less notable.  And, despite its reputation for faith in juries, Texas has about 25% fewer general jurisdiction court jury trials per capita than my home state of Colorado.

By comparison, there were 83,596 active lawyers in Texas as of November 6, 2009.  

Assuming that the average general jurisdiction court civil jury trial involves four lawyers (two for each party), the average Texas lawyer participates in just two or three civil jury trials as a litigator in an entire career (although, obviously, some lawyers will participate in far more civil jury trials, while transactional lawyers, criminal lawyers and lawyers who handle predominantly small claims collection cases or divorce cases, may never participate in one).

In 1997, in contrast, the average number of career civil jury trials for a Texas lawyer would be about ten.

Statistics on the mix of U.S. civil jury trials by case type from sources not particular to Texas suggest that about 75% of civil jury trials involve personal injury lawsuits.

It is also worth noting that the jury as an institution is still far from dead in the United States. 

Juries are the predominant means of resolving contested felony cases and juries are quite commonly employed to resolve quite minor misdemeanor cases.  

Also, despite the fact that civil juries are far less common than they used to be in the United States, the United States used civil juries more frequently in the United States than any other country on Earth (with Canada as a close second).  In the United Kingdom, where the institution originated, for example, civil juries are far less common than they are in the United States - they are available in only a handful of kinds of cases.

Norwood, Colorado Is Pro-Rape

In Norwood, Colorado, a small town near Telluride, the locals think that boys who rape other boys are heroes that they buy T-shirts to support, and boys who get raped by the peers and their families who report the incidents to the authorities should be persecuted. 

The three upperclassmen boys who committed the rapes as part of a wrestling team hazing ritual plea bargained down to misdemeanors and were only prosecuted at all because the event took place in Denver rather than on the Western Slope.

No joke.  People in small town America have a lot of really perverse and hateful morals that Norwood, Colorado typifies.  It is hard to express just how evil the people of Norwood are in words.  Jocks who commit crimes are evil squared.  These boys deserved several years in prison each.  I don't want monsters like these boys walking my streets.

Even more disturbing is that the adult coach for the team, Robert Harris, knew that two of his sons were involved and dismissed his sons' acts as acceptable conduct:

Two of the attackers were sons of Robert Harris, the wrestling coach, who was president of the school board. . . .

In February 2012, the boy [who was attacked] rode the bus to Denver as the team manager, in charge of videotaping the older high school students at the meet. After the coaches and wrestlers left the bus to weigh in, three older and bigger boys pinned the younger boy down, bound him with the tape, pulled down his pants and assaulted him, according to the principal. His parents were at a hotel, awaiting the start of the meet. . . .

Just before the meet started, the principal's older son heard the attackers laughing about the assault on his brother and told his father.

"I was shocked beyond belief, and I was mad," the father said. "I do believe I was madder than I have ever been. You're trying to protect your kids, and then something like this happens."

The father sought out his son, who told him what had happened. He then confronted Harris, the head coach, who at first said nothing had occurred, according to the father. In subsequent conversations, Harris said: "This happens 1,000 times a day around the U.S.," the principal recalled.

According to the source story at Bloomberg:

[O]ne of the accused students pleaded guilty to sexual contact without consent; the other two pleaded guilty to third-degree assault. They received varied sentences that included probation, community service and restitution of about $2,500 apiece.

The principal’s contract was up for renewal. After extensive negotiations involving lawyers from both sides, the board renewed his contract and put him on paid leave while it reached a settlement.

The principal was offered another job in a town 200 miles away that pays half his previous salary. The family moved and he enrolled his children in a new school.

Harris was reappointed Norwood’s wrestling coach. He was given a letter of reprimand for leaving students unsupervised on the bus, Crews told police.

Apparently, however, at some point, Bobby Harris was replaced by Dirk Hardman as the head coach for the school's team.

The Daniels Fund awarded a scholarship to Brent Robert Harris in 2012, which was announced the same week that two of his younger brothers were arrested in Denver, charged with multiple serious felonies, and then freed on a $25,000 bond each.  He went on to attend the Colorado School of Mines. 

Earlier this year, Talon Harris, another of the four sons, who was one of the rapists (consistent with the TTH t-shirt language for the shirts made to support the rapists "TTH being the first initials of the three rapists" also here), was back at the state wrestling competition at the scene of the crime from the previous year, near Pepsi Center again and came in third place statewide in division 2A.

A couple of months later his brother Hayden Harris, also one of the rapists, won a third place finish in a different state competition on behalf of the "Norwood Wrestling Club".  Hayden appears to be the one who pleaded guilty to the sex offense as opposed to the third degree assault charge and may have deserved this status, although we may never know if that was what really happened.  He may have claimed the most culpability when it became clear that charges would be pressed, because as the youngest of the three rapists he faced the least serious consequences if convicted of all charges.

Why Harris, Sr. (he goes by "Bobby" rather than Robert; picture on page three) wasn't charged with crimes like failing to report child abuse himself and removed as a coach is a mystery (he resigned from the school board a few days after the charges were filed by the Denver District Attorney's office).  He is a true monster who is just half a step removed from the pedophiles who make child pornography.  In any sane community, he would be utterly disgraced and run out of town with his rapist sons, and Harris Construction, the business of which he is a proprietor, would wither.  But, that isn't what people do in Norwood.  (A report on his race for the school board position in 2007 is reported here and provides some background information on the adults involved in this incident.)

Also high on the list of Norwood monsters is Jessica Bicknase, the mother of the third rapist, who made t-shirts supporting the boys instead of taking her son to the woodshed.  Presumably, Timothy Armintrout, the third rapist (as reported by Grand Junction, Colorado's KREX Channel 5 and by Denver's KDVR Fox 31), is her son.  Mr. Armintrout was also back at the scene of the crime outside the Pepsi Center earlier this year competing in the state finals for division 2A wrestling with Norwood wrestling teammate and fellow rapist Talon Harris.  Their pictures can be found here.

(It probably bears mentioning that I believe that the secrecy imposed on juvenile justice proceedings is a very bad policy that harms the public in multiple ways.  The potential future victims of these three rapists need to know to be afraid of them if they encounter them in the future.  These perpetrators in particular, having escaped a criminal justice punishment commensurate with their very serious forcible rape crimes, also clearly deserve, at the very least, to have their reputations tarnished for the rest of their lives as a result of their actions.  It is appalling that their conditions of probation have not even required each of them to give up wrestling competitions, given the circumstances.  The leniency afforded to these three boys and their father and the school superintendent in this case is stunning.)

David Crews who is the superintendent of schools and imposed a mere one day, in school suspension on the boys that didn't take the conduct seriously, also deserves serious scorn (although the fact that two of the boys were the children of his boss didn't make it easy for him to do the right thing).

Harris, Crews and the school district all ought to be sued for civil rights violations, at the very least.  David Crews is still the superintendent of schools despite committing a serious crime when he failed to report this incident to the police, but Harris is no longer on the board of the Norwood Public Schools whose mission statement, ironically is to "provide a safe learning environment and build respectful individuals", something that the district clearly isn't anywhere near achieving. 

It isn't clear if CHSAA, the governing body of high school sports in the state, took any action in response to this incident.  The incident wasn't mentioned in either of the reports prepared by their wrestling division after the state championship that year, although in fairness, the incident may not yet have been reported to anyone at CHSAA at the time.

This isn't just an anomaly.  It's Western Slope culture.  Consider this story from a year and a half ago from the judicial district that includes Norwood:

The man who was the Republican District Attorney for the 7th Judicial District in Colorado (Delta, Gunnison, Hinsdale, Montrose, Ouray and San Miguel counties, basically the Western Slope to the south of Grand Junction and North of Silverton) when he was arrested in September 2010, Myrl Serra, has pleaded guilty to "criminal extortion and unlawful sexual contact involving three women," felonies punishable by up to twelve years in prison and requiring registration on the sex offender's registry. Sentencing is set for January 19, 2012.

The criminal extortion charges allege that he demanded "sexual favors from women in his office." The sexual contact charges were supported by preliminary hearing testimony in which "one of the women testified that Serra cornered her inside his office in April 2010, grabbed one of her breasts and forced her to touch his genitals." 

These kinds of Western Slope values (and similar ones about mixed race families and children) are the reason that my wife and I moved from Grand Junction to Denver in 1999 after having lived there for three years, and we have never regretted it.

If I had stayed at the firm where I worked at the time in Grand Junction, I probably would have been on the defense team defending these creeps if they had been sued, since we handled Western Slope claims for the governmental equivalent of an insurance defense funds for local governments in that territory.  We were defending litigation involving a similar, but far less egregious case involving conservative, small town Western slope perverts in public office while I was working there.

Incidentally, Telluride's paper reported the story in May of 2012 (via Randy Cassingham's blog).  Some of the details added in his account are that:

Despite legal requirements to report the incident, the school's superintendent admits officials did not do so; the boy's parents called police when he got home and told them what happened. With that, the three boys were suspended from school — for one day. School officials also "discussed" whether the victim should have been suspended too. . . .

In an editorial titled Do the Right Thing, the Telluride Watch newspaper noted that "it is widely acknowledged that similar incidents, clearly crossing any reasonable line, have occurred in Norwood in the recent past, making it impossible to shrug this one off -- extreme as it evidently was -- as an isolated incident."

I call that escalation. When school officials didn't do anything about it, they tacitly agreed with what was going on -- and naturally it got worse.

But here's where it gets really ugly. The CBS station in Denver reported (and the Watch reprinted, here), that the alleged victim's father is a school official. Worse, Norwood School Board President Robert Harris doubles as head wrestling coach at Norwood schools, and has four sons on the team!

In the same story, the paper notes that at a meeting to discuss the case, 70 people showed up, and "The crowd seemed to be separated by an unseen cultural divide wider than Gurley Gulch, which separates the Hitchin’ Post from Two Candles, Norwood eating and drinking establishments patronized by conservative and liberal members of the community, respectively." . . .

The newspaper reports (here) that "A receptionist for Norwood School District attorney Darryl Farrington was instructed to not put a reporter's message through to his voicemail," and that "In addition to Norwood, Farrington lists Telluride, Ridgway and Ouray districts among his clients." 

At the time, the CBS news report noted that this was considered normal in Norwood's sports programs (something also confirmed by the Telluride newspaper):

“After the incident at State Wrestling, we are now hearing about a number of other “taping incidents” from past years- a possible culture of hazing. The district is now investigation the new claims that have bubbled up,” said Dave Crews in a statement.

A Western Slope NBC affiliate reported on the surreal parents meeting held at the school on the day that the DA charged the Norwood rapists.  It's hard to believe how many really bad parents can be concentrated into a town that has a population of under five hundred.  Denver Post affiliate 9News also reported on the story.

Prior to this incident, the Norwood Public Schools were mostly known for another act of small minded and backward small town ignorance in a 2005 book banning incident by previous superintendent Bob Conder (confirmed here by a TV news station)

But, the Denver Post didn't think it was newsworthy until Bloomberg picked it up and never did any reporting of their own, even though the Denver police prosecuted the case in the Denver courts, and the story was covered by more than one Denver TV station.  As the Bloomberg story illustrates, it is amazing how much of a story can be developed from a little headline if you make the effort to sleuth out enough of the facts.

Gay Conversion Organization Shuts Down And Admits It Was Wrong

For once, a Christian organization did the "Christian thing" by ceasing to hurt people and admitting that they'd screwed up and hurt people in the past when it comes to their treatment of gays and lesbians and transsexual people.

Exodus International, an organization founded to “help” LGBT people not be gay anymore because Jesus, will now cease to exist. And it’s not because they lost their lease, or got shut down for being horrible; no, their president, Alan Chambers, has just outright said (paraphrasing), “We were wrong, we’re hurting people, Jesus said love everybody, we are really sorry, bye now!”

From here.

The paraphrase accurately represents what is said in the actual text of the apology, reprinted at the link above, from the organization's president:

Please know that I am deeply sorry. I am sorry for the pain and hurt many of you have experienced. I am sorry that some of you spent years working through the shame and guilt you felt when your attractions didn’t change. I am sorry we promoted sexual orientation change efforts and reparative theories about sexual orientation that stigmatized parents. I am sorry that there were times I didn’t stand up to people publicly “on my side” who called you names like sodomite — or worse. I am sorry that I, knowing some of you so well, failed to share publicly that the gay and lesbian people I know were every bit as capable of being amazing parents as the straight people that I know. I am sorry that when I celebrated a person coming to Christ and surrendering their sexuality to Him that I callously celebrated the end of relationships that broke your heart. I am sorry that I have communicated that you and your families are less than me and mine.

More than anything, I am sorry that so many have interpreted this religious rejection by Christians as God’s rejection. I am profoundly sorry that many have walked away from their faith and that some have chosen to end their lives. For the rest of my life I will proclaim nothing but the whole truth of the Gospel, one of grace, mercy and open invitation to all to enter into an inseverable relationship with almighty God.

Wow!

Coming Soon: A Nation Not At War

In 2015, barring entry into an unforeseen new war in the meantime, the United States will be a nation no longer at war.

The End of Thirteen Years Of Conventional War Fighting

The war in Afghanistan will be over, assuming that President Obama and Congress continue to honor a commitment to the Afghan government to withdraw its troops by the end of 2014.  The United States will not have any troops engaged in conventional war fighting for the first time since shortly after September 11, 2001.  The parallel eight and a half year long Iraq War in which 4,487 U.S. solders were killed and 32,223 were seriously wounded, began on Thursday, March 20, 2003 and ended on Sunday, December 18, 2011. 

U.S. conventional military involvement in Afghanistan will have lasted thirteen years, although the number of U.S. troops committed to that conflict was much smaller than the current 66,000 or so (out of a total coalition force right now at 100,000) for most of its duration.  About 6,000 U.S. troops are anticipated to stay on there in a training and support role for Afghan security forces.  The peak size of the U.S. force in Iraq was 165,000 and the peak size of the total coalition force in Iraq was 176,000 (excluding new regime Iraqi security forces) and they were fully withdraw by December 31, 2011 (apart from the 160 Marines who guard the U.S. embassy).

The Status of the AUMF

Unless repealed by Congress (and some members of Congress have called for its repeal or modification, an effort that I support), the AUMF adopted on September 14, 2011 will remain in force.  This provides in the pertinent part:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The AUMF is a rare declaration of war primarily against non-governmental organizations and individuals, rather than exclusively against another sovereign.  This isn't entirely unprecedented.  For example, one of the first declarations of war declared by Congress was the war against the Barbary Pirates in the vicinity of modern day Libya in the earliest days of the Republic, which is remembered historically for the Treaty of Tripoli (which declared that the United States was not a Christian nation) and in the Marine Corps anthem.

The Use of Force Pursuant to the AUMF Against Nations

The practical reality is that Afghanistan's Taliban regime is the only national government against whom the AUMF was used and the U.S. has discontinued this part of the war, even though some people who may have aided Al-Qaeda and thus helped to have facilitated the terrorist attacks are probably still at large (and arguably "harbored") in Saudi Arabia and Pakistan.

The Use of Force Pursuant to the AUMF Against Persons

All of the important individual persons who were involved in planning, authorizing, committing or aiding the terrorist attacks that occurred on September 11, 2001 who will ever be identified have died or been captured at this point, after Obama bin Laden was killed by U.S. Special Forces during President Obama's first term of office. 

The Use of Force Pursuant to the AUMF Against Organizations

We know that the September 11, 2001 terrorist attacks were planned, authorized, committed and aided by the terrorist organization known as Al-Qaeda and in particular branches of the organization based on Afghanistan and cells deployed to the United States.

Al-Qaeda was harbored by the Taliban regime, which while not longer existing as a national regime continues to exist as an organization in Afghanistan and in the Frontier Province of neighboring Pakistan and probably still harbors some remnants of the Al-Qaeda leadership as of 2001.  A (barely) covert war waged with drones, tips to Pakistan security forces secured with U.S. intelligence resources, and U.S. special forces troops over the last decade or so, however, has killed many of these individuals (hundreds? thousands?) at the cost of the lives similar numbers of innocent family members and associates of these individuals who have been collateral damage in this conflict.

New organizations created since September 11, 2001 have adopted the Al-Qaeda brand and declared an affiliation with the organization - Al-Qaeda in Iraq, Al-Qaeda affiliates in the current Syrian war, al-Qaeda affiliates in various Southwest Asian, East African and North African countries, many of which have mounted their own terrorist strikes, some against United States and U.S. interests.

Are Organizations Like Jabhat al-Nusra Within The Scope of the AUMF?

It is a stretch to argue, for example, that a revolutionary organization affiliated with Al-Qaeda like Jabhat al-Nusra is truly within the scope of the AUMF.  Jabhat al-Nusra was formed locally in Syria on a grass roots basis after the Syrian civil war that began March 15, 2011 (officially on January 23, 2012), only subsequently embraced an affiliation with Al-Qaeda (sometime around April, 2013).

Arguably, Jabhat al-Nusra voluntary affiliation with Al-Qaeda has made it a part of an organization that planned, authorized and committed the September 11, 2001 terrorist attacks and brought it within the scope of the AUMF.  Jabhat al-Nusra does engage in terrorism and was declared to be a terrorist organization by the United States in December of 2012.  And, while a nexus with the 9/11 determines the scope of the persons covered by the AUMF, the purpose of the AUMF was to use force in order not just to seek vengeance against those who harmed the United States in the past, but "to prevent any future acts of international terrorism[.]"

But, more particularly, the purpose of the AUMF is "to prevent any future acts of international terrorism against the United States."  Jabhat al-Nusra has never initiated terrorist attacks against the U.S. or any of its allies, or stated any interest in doing so.  The U.S. is currently aiding and arming other rebel groups who are fighting side by side against the Syrian regime in the same civil war.   Thus, while it may be appropriate for the U.S. to invoke the host of non-AUMF anti-terrorism laws to take action against Jahat al-Nusra and similar post-9/11 affiliates of Al-Qaeda, its nexus with the 9/11 attacks that establishes the scope of the AUMF is extremely attenuated.

Many terrorist organizations that are or claim to be Al-Qaeda affiliates are similarly situated, although a few of them have independently engaged in or threatened anti-U.S. terrorist acts.  Almost all of the functional Al-Qaeda organization that was involved in or is directly descended from the Al-Qaeda organization that carried out the 9/11 attacks, however, has been crushed.  

Time To Declare Victory?

Terrorism is a tactic and not a person, organization or nation.  Terrorism, sometimes under different names, has existed for thousands of years and will continue to exist until a "Heaven on Earth" utopia is brought into being, which I do not expect to happen any time in the next thousand years.

There will always be a need to spell out the state's authority to act against terrorists.  Now, while we are still paying attention and worried about terrorism as we wind down the war in Afghanistan, which is the last conventional war AUMF campaigns, but we are not in an immediate crisis, is a great time to develop a Congressionally authorized war on terrorism policy for the ages.  But, it has ceased to make sense to make someone's links to the 9/11 attacks, twelve or thirteen years later, a central consideration in how we fight a war on terrorism going forward.

It is time to declare victory in the unconventional war than the AUMF authorized, to repeal the AUMF, and to enact a new comprehensive set of laws governing the authority of the President to take on terrorists intend on harming the United States or its allies and interests in the future, without regard to their connection to the nations, organizations or persons that were somehow connected to the 9/11 attacks. 

The fight to take down every nation, organization and person connected to 9/11 has been successful.  We have killed of Osama bin Laden.  We have detained or killed of all other known Al-Qaeda members and senior Taliban officials who had any involvement and weren't killed in the attacks themselves.  We have crushed the Al-Qaeda organizations that carried out the attacks.  We swiftly brought about regime change in Afghanistan that stripped the Taliban regime of the sovereign power that they held over most of the country, have stabilized the new regime we helped the Afghan people to form, and will have withdrawn from Afghanistan after what will have been a thirteen year military presence at the end of 2014 (the longest war other than the "Indian Wars" in U.S. history).  We won.  The AUMF war is over and we should formally declare that this is the case on December 31, 2014.

Reforms For A Post-War National Security Regime

Shut down Gitmo.

President Obama has repeatedly expressed a desire to shut down the Guantanamo Bay detention camp, but has been thwarted by the Republican controlled U.S. House of Representatives that have prohibited him from doing so in Defense appropriations bills, and the President has chosen not to make overcoming this barrier a particularly high priority so far.

Despite a hunger strike by at least 104 of the 166 prisoners and appeals from Obama that the prison is too expensive to maintain and a recruiting tool for anti-American militants, the House voted, 249-174, to defeat an amendment [to the Defense Appropriations bill this year] calling for its shutdown by the end of 2014…Obama, who had pledged during his 2008 presidential campaign to shut down the Guantanamo prison, had his counterterrorism adviser, Lisa Monaco, call legislators this week in a last-ditch effort to build support for closing the base

From here.

In connection with a repeal of the AUMF, we should shut down detention facilities like Guantanamo Bay and the associated military tribunals, and detention facilities in Afghanistan (relocating those prisoners to U.S. based military prison facilities, or transferring them to detention facilities in their home countries, particularly Yemen, at this point).  As explained here:

Since January 2002, 779 men have been brought to Guantanamo. . . . a 2006 report prepared by the Center for Policy and Research, Seton Hall University Law School reviewed DOD data for the remaining 517 men in 2005 and "established that over 80% of the prisoners were captured not by Americans on the battlefield but by Pakistanis and Afghans, often in exchange for bounty payments." . . . The Center for Policy and Research's 2006 report based on DOD released data, found that most detainees were low-level people who were not affiliated with organizations on U.S. terrorist lists. . . . By May 2011, 600 detainees had been released. Most of the men have been released without charges or transferred to facilities in their home countries. . . . As of June 2013, 46 captives (in addition to 2 who were deceased) were designated to be detained indefinitely, because the government said the prisoners were too dangerous to transfer and there was insufficient admissible evidence to try them.

According to this Wikipedia article:

As of March 2013, 166 detainees remain at Guantanamo. 

The detention camp was established in January 2002 and the vast majority of the men for whom a date of capture is available were captured in 2002 and 2003.  There was one case of a 2003 capture and 14 "high value prisoners" were transferred there (apparently after lengthy detentions in other secret CIA prisons) in 2006.   

The military tribunal cases made against many them and the other available evidence about these "high value prisoners" tends not to support the assessment that even these fourteen were important individuals in Al-Qaeda or the Taliban or other terrorist organizations, even if they weren't innocent of involvement in these organizations either.  Serious charges have been lodged against only five of them and those were brought using an unconstitutional Military Commissions Act process.

About 70% of men (about 120 of them) are cleared for release but their home countries have not been available to accept them back, or they have not been returned because the U.S. is not willing to have discussions with their home countries (this appears to be a particular issue in the case of about 30 Yemenis) or because Congressional intransigence impedes the process.

We should recognize, in hindsight, that the "enemy combatant" and military commission approach to fighting terrorism has been a failed experiment in how to respond to terrorism and fight unconventional wars that has done more harm than good to our cause.  In practice, military commissions and combatant status tribunals have been a far slower way to get to the truth about each case than the ordinary criminal justice system and the convictions obtained have not stood up to appellate review nearly as well as terrorism convictions obtained in the ordinary criminal justice process.

Many of the men were determined to be mostly harmless nobodies who would have been released sooner if only the notoriety attached to the facility hadn't made it hard to repatriate them.

The Bush administration's effort to secure a different legal status for Guantanamo Bay than for facilities in a U.S. state was soundly rebuffed by the U.S. Supreme Court when it considered that question.

This approach has been far worse than a civilian criminal justice approach at promptly bring terrorists to justice, but has provided a recruiting tool for new terrorists intent on doing harm to the United States and undermined the "soft power" that the United States once had as a result of a previously mostly untarnished history of respect for human rights.

There are some problems with simply declaring victory in the war under the AUMF.  Many of the detainees are not legitimately the subject of military commission trials for war crimes, so they can only be detained indefinitely until "the war is over" which a declaration of victory and repeal of the AUMF might trigger.  But, the administration is worried (perhaps not always with sound justification) that 46 of them would be a threat to the United States if released.

All of the detainees are deportable non-citizens, many have been detained for a decade or more already (hard time for what would have been middling to minor misdemeanors or felonies in the criminal justice system at best, and just bad luck or guilt by association in other cases).  Many of the detainees for whom there is no reasonable basis for bringing military commission proceedings, and even many who actually did face military commission trial, were basically bit players in the larger scheme of things at the time that they were apprehended, not the "worst of the worst."

The long period during which they were detained and the violation of the rights that they would have had in the criminal justice system in the meantime, casts real doubts on the legitimacy of any attempt to prosecute any of these men (and they are all men) in the criminal justice system after a period of military detention.  Most troublingly, if they are released, they will be men who have every reason to really hate America and take up arms against it after having been given treatment that many neutral observers would agree is fundamentally unfair and improper.  We have created the monsters that a few of these men may turn out to become if released and need to figure out how to mitigate this risk to national security.

The shoddy quality of the prisoner classification efforts and military commission charges brought in these cases, moreover, seriously undermines the credibility of requests from the military to the public that we should trust them with unreviewable decisions on individual people's lives in this and other contexts.

Disavow the domestic enemy combatant doctrine

We should expressly disavow by statute the authority that the Bush administration claimed in the Jose Padilla and first Hamdan cases to use military authority to indefinitely detain U.S. citizens and legal immigrants within the United States and its possessions as "enemy combatants".  In these territories, so long as the courts are open and the government is operating, military justice has no place and the use of military force to enforce the laws and repel terrorists should be limited to circumstances where military aircraft or water craft or other military equipment can stop a terrorist (e.g. in control of a plane being used as a bomb, or a WMD carrying boat or submarine, or via a missile) that civilian law enforcement, the activated National Guard and the Coast Guard cannot - ideally never.

Domestic terrorism by people who are lawfully within the United States or its possessions as citizens or legal immigrants should always be handled as a criminal justice matter.

Put in place internal controls and civil liability measures to ban torture.

We should disavow and carefully define torture and establish effective independent internal affairs resources within the government to stop it and outside the government to obtain injunctive relief, exonerations from forced confessions, and money damages for torture victims, even suspected terrorists.

Rewrite intelligence authorization laws to balance terrorism prevention, privacy and transparency

We should abolish the FISA court that has in hindsight been a worthless rubber stamp and star chamber, should repeal the Foreign Intelligence Surveillance Act that authorizes its action and should repeal the domestic intelligence gathering provisions of the Patriot Act, in favor of a new counter-terrorism intelligence and foreign intelligence regime.  The new regime should have more transparency, should draw more firm and clear lines between what may and what may not be kept private in the absence of adversarial court proceedings so that Americans can have some expectations of privacy in something, and should have an oversight mechanism that includes someone with a genuine interest and incentive to protect civil liberties and to keep the public informed to the maximum extent possible in the process, since we are a democracy.

Years of secret, rubber stamp FISA court proceedings and the revelation that multiple administration officials have profoundly mislead Congress and the public regarding what it was doing already has deeply undermined the credibility of FISA's institutions as institutions that deserve the public's trust.

Disclosure should be much more rich than it is today.  All legal positions, for example, should be disclosed.

Develop a new statutory framework for targeted strikes against terrorist targets

We should put in place a credible, fair process for vetting the targeted use of force against foreign persons and property outside the United States.

The new regime should limit such strikes to situations when:

(1) it is necessary to do so because cooperation from a civilized sovereign government of the territory cannot be secured in a time frame necessary to apprehend those involved or prevent future harm,

(2) the U.S. lacks the ability to detain them without killing them without putting the people charged with doing so in grave risk of harm to themselves relative to killing them or causing their associates to carry out violent terrorist or criminal acts against U.S. interests,

(3) there is clear and convincing evidence that the individuals are operatives who have carried out or been pivotal players in carrying out terrorist acts against the U.S., U.S. interests or U.S. allies in the past, or are key operatives of organizations that have carried out terrorist acts against the U.S., U.S. interests, or U.S. allies in the past, or in the process of imminently executing such an attack,

(4) the evidence has been meaningfully reviewed by a responsible senior executive branch official with easy access to the President on an individualized basis, and

(5) there is some form of due process with meaningful independent advocacy on behalf of the U.S. citizen target with resolution of the matter is made by an ordinary U.S. District Court acting as an ordinary Article III court before the strike is carried out if the target is a U.S. citizen.  If nothing else, we need at the very least something like a court appointed guardian ad litem or "devil's advocate" in the system to argue for their interests.

With regard to the fifth requirement, in many cases the appropriate approach will be to revoke the citizenship of U.S. citizens suspected of involvement in foreign terrorist organizations in an ordinary civilian citizenship revocation proceeding under ordinary immigration law rules, and then to dispense with the provisions of the fifth requirement because the individual is no longer as U.S. citizen.

The system should also expressly require regular disclosure of how this authority has been used.  Summary information including the number of strikes authorized, the number of strikes carried out, the number of targets successfully destroyed, and the number of instances of collateral damages with generic identification of human and property damages resulting from the strikes should be made available on a quarterly or annual basis, with detailed rich reports of each incident provided long enough after the fact and with modest redactions of operative identities sufficient to prevent compromise ongoing operations, that still give enough information to the public to meaningful evaluate and second guess the executive branch decisions that have been made in those cases.

TSA Now Enforcing Teen Girl Dress Code

Wonkette has the story.  The fifteen year old girl clothing that a TSA officer found objectionable is depicted below:

Authentic Food

As always, Razib, at Gene Expression is among the first to spot a new cultural trend: authentic food. 

The theory is that it is deeply aesthetically pleasing to eat what your distant ancestors ate and drank.  It offers an appeal not to physical health, in the way that organic or "health" foods do, but to inner peace and a sense of history and connection.

My father is a fan of Ezekiel 4:9 bread*, which pitches its Biblically prescribed recipe of an assortment of "ancient grains", in a manner similar to a Passover Matzo, which is another example of authentic food.  Razib notes an effort to make beer according to a Sumerian recipe.

* The verse reads:

Take thou also unto thee wheat, and barley, and beans, and lentiles, and millet, and fitches, and put them in one vessel, and make thee bread thereof, according to the number of the days that thou shalt lie upon thy side, three hundred and ninety days shalt thou eat thereof.

Stapleton Prophet

While I am keeping the Wash Park Prophet blog name, once again, in the interests of full disclosure for my readers, I inform you that as of tomorrow, I will be based neither in Denver's Washington Park neighborhood, as I was when I started this blog, nor in the Bible Park neighborhood of Denver, where I have lived for much of the last year.  This weekend I move to a townhouse in Denver's Stapleton neighborhood.

The reason for the moves has been that I am getting divorced.  This move, unlike the last one almost a year ago, has been made with time to be picky about locations and give it some thought, rather than out of an urgent and immediate need to separate with just a few week's notice, so it may last for a while.

A complete separation agreement and parenting plan reached non-contentiously without mediation or litigation and only modest lawyer involvement (I have represented myself because I do divorce cases from time to time at my day job, and my wife has had legal representation) to review the proposed arrangements and work out some final details was filed on the same day as the Co-Petition for dissolution of marriage.  My background as a lawyer who has handled divorces has certainly helped smooth out the process - I know what works and does not work in practice, and I know what kind of proposed resolutions are likely to be considered acceptable and fair by a fellow lawyer representing my spouse.  No one is really ever happy about getting divorced and it is never an unequivocally good thing, but we've done our best to minimize harm in the dissolution process itself.

Each of us have attended mandatory parenting classes and made full financial disclosures to each other.  Sometime in late August or early September, our nineteen year marriage (which had followed a two year engagement) will officially be terminated in a very brief in person court hearing (required in all cases with children, even if they are resolved by mutual agreement), and each of us will have our pre-marital name ("Willeke" in my case, "Oh" in hers) restored from the hyphenated "Oh-Willeke" name that we both took when we married and that our children share (and will keep).

Apart from a handful of paperwork items to carry out the financial arrangement, the non-parenting provisions have already been implemented and we are already living the parenting arrangements that largely track those that have been in place, on and off (we have a reconciliation for a couple of months, although it didn't last) during the last year.  Far more paperwork will go into changing addresses and effecting the name change with various government bureaucracies and businesses and informing friends and family.

Our co-parenting relationship is generally cooperative, civil and fairly flexible as it really has to be when your children are a high school freshman and a middle school child, respectively.  Both of our children are doing well in school and one even received a good citizenship award during the separation, although I don't want to downplay how difficult this may be for them now or in the long run.

In the interests of privacy for all involved, harm reduction and ongoing civility, I won't be posting any time soon about why our particular marriage ended (something that the divorce process also does not inquire about) or my feelings about why our marriage ended or the details of our financial arrangements, although obviously, I have given both a great deal of thought and I have strong opinions about these matters.  Those opinions will stay in my journal and in private conversations with close friends, associates and family on a mostly need to know basis.

Philosophically, a key point for me has been to understand that while divorce ends the marriage itself, that in our legal culture, a couple's relationship as co-parents is much more difficult to terminate legally.  Termination of parental rights other than infant adoptions can take place only for serious risk of (or events of) abuse or neglect of the child in question, and these court cases can only be brought by government officials and involves quasi-criminal due process protections for the parent. 

The relationship of unmarried co-parents has become, almost, a form of de facto secondary marriage, and Colorado law, when not required by federal tax law, doesn't even specifically describe one parent as having "custody" and the other "visitation" in most circumstances.  The co-parenting relationship of parents who divorce or legally separate or were never married and seek court guidance regarding the relationship (and the rights of their children) under modern family law is almost entirely independent of the current or past marital status of a child's parents.  This is in strong contrast to the way Japanese custody laws and traditional Islamic law work where a divorce completely terminates a child's relationship with a parent.  Since our relationship is being radically transformed, but not actually ending, it is important for both of us to maintain and nurture the relationship in its current form to make life tolerable for both of us and for the well being of our children.

Black Forest Fire Most Costly In Colorado History; Royal Gorge Fire Decimates Venue

Black Forest

Firefighters on Friday will continue to battle the Black Forest fire north of Colorado Springs that has consumed 15,700 acres and 379 homes since it started Tuesday.  Some 38,000 people are impacted in the mandatory evacuation zone that covers 24 square miles, stretching from Elbert County to the northern part of Colorado Springs. . . . The number of homes destroyed makes the fire the most destructive in Colorado history. The Waldo Canyon fire in 2012 destroyed 347 homes.

Maketa said at a news conference late Thursday afternoon that firefighters found the bodies of two people in the rubble of the Black Forest fire. The bodies were discovered in what was the garage of a home that the blaze leveled. They were next to a car with its doors open. The car's trunk was packed full of belongings.

From the Denver Post.  A statement in an earlier blog post on the fire based on a breaking news Denver Post story that the Black Forest fire was 48 square miles was incorrect.  The 15,700 acre burn area is 24 square miles and the mandatory evacuation zone size in the quoted language above is probably underestimate since it includes some areas that have not yet been burned.   The fire is currently only 5% contained so the damage is likely to be greater when it ends.  A back of napkin estimate of the damage done by the Black Forest fire is a hundred million dollars or more.

(This photo is one of 165 at the Denver Post from the collection linked above and is posted as a claimed fair use for the purpose of discussing the political issues associated with the used of government funds to protect private property in high risk areas sometimes called "stupid zones.")

True to its name, the exurban Black Forest subdivision is ensconced in a scrubby, arid west, pine forest - as the late Colorado op-ed columnist Ed Quillen liked to call it, a "stupid zone."  He had argued for a consistent libertarian approach towards developments in these areas, i.e. that they be permitted, but that government resources not be used to protect property in these zones (as opposed to human life) from the natural dangers that people building there assumed, or to subsidize development in these areas.  In particular, it may not make sense to use disaster relief funds to rebuild structures in disaster prone areas.

Authorities say the Black Forest fire was probably started by a person (not necessarily intentionally) and is now being investigated as a homicide.

Royal Gorge

Royal Gorge Bridge and Park in Fremont County is operated by the Royal Gorge Company of Colorado which employs 40 permanent staff and many more part-time seasons  workers.  It is a a standout Colorado attraction of the Route 66 era, including a bridge over one of the deepest bridge spanned canyons in the nation, that I've been to with my kids.  The 3,100 acre Royal Gorge fire this week has devastated this relic of 1950s tourism. Their cable cars have (literally) gone up in smoke and the cable has fallen into the canyon.

[Cañon City] Mayor Tony Greer toured the Royal Gorge Bridge and Park and even drove across the bridge Thursday.

"As devastating as some of the damage appears, it seems to have created a wonderful opportunity for us, as well," he said. "This national treasure that we've been charged with — the bridge itself — is intact and it's safe."

Of the more than 1,000 planks on the bridge, only 32 were burned on the south end of it. But of the 52 structures on the property, only four remain.

From the Denver Post.

The attraction will be virtually starting over from scratch and have to re-imagine itself.  Presumably, the remainder of this year's season will be a lost cause for the attraction.  The city had been considering a redevelopment of the attraction anyway, however, and the many millions of dollars of damage are mostly insured, although the jobs lost won't easily be replaced in the short-term.

Father's Day Weekend Quote

Promotion picture from the Disney movie Epic.

Near the end of Epic, Professor Bomba laments that he was never able to convince his late wife that the world of the Leaf Men was real. M.K. throws her arms around her father, reassuring him that she now knows the truth her mother didn't. Dad may not be a hero to mom, but he's one in the eyes of his daughter. In a fantasy world where adult women are so often absent, a young girl's devotion proves the key to her father's redemption. In real life, moms are still more likely to spend time with the kids except at the movies or on other entertainment-centered outings. But when those dads are alone in the darkened cinema with their kids, they are increasingly likely to be reminded that no matter their shortcomings as husbands or partners, they are still adored by their heroic daughters.

From a thoughtful piece on feisty kids and bumbling dads in the movies as a reflection of the zeitgeist of American culture, at the Atlantic Magazine's website.

Military Intelligence Still Stupid

When my dad was in the Army (as a draftee in the 1950s), he recalls a day when one of his barracks-mates told him that they had classified the New York Times that day. 

The idiocy has not improved in the interim.  The following instruction went out to U.S. government employees and contractors on Tuesday:

Recently, news source websites some operated by CNN, MSN, ABC News, and other reputable news provider companies, have recently posted possible Classified content on their website.  At this time, ARCYBER is treating incidents where unclassified DOD systems view the classified document(s) that are posted on the news source sites as information spillage.  To prevent further incidents of spillage, USCYBERCOM recommends refraining from browsing/navigating/opening the web link to the content that are hosted on the news source sites until further notice.

How can you possible trust intelligence agencies that tell their employees and contractors to shield themselves from the secrets that can be obtained from watching broadcast television and browsing news websites? 

If we want to preserve the acronym, maybe we can rename the CIA the "Central Ignorance Agency."

Why Is Colorado Afflicted With Fire and Smoke?

Yesterday, Denver set a new record with a high of 100 degrees, several degrees higher than the previous June 11 record set in 1956 and the earliest 100 degree summer day in Denver history. 

The heat and dry conditions weren't limited to Denver.   The successive days of record heat created conditions that produced several major wildfires across Colorado yesterday, many of which are still burning. 

At least eighty homes have been destroyed by the Black Forest fire in a subdivision to the North of Colorado Springs that has grown to 48 square miles and forced about 8,000 people in a mandatory evacuation area to flee as well as many more such as 1,000 people at a Boy Scout camp that are nearby but not yet in the evacuation area. 

Near Canon City, Colorado, three buildings of a popular tourist area have been destroyed by the six square mile Royal Gorge fire, although its famous suspension bridge is currently still standing. 

A 400 acre fire has not yet been contained in the Rocky Mountain National Forest near Estes Park, Colorado during the summer tourist season. 

A wildfire near Walsenberg in Southeast Colorado has reached sixty acres. 

A cigarette butt spawned a fire that destroyed an apartment building in Aurora, Colorado.

These fires across Colorado have produced a heavy haze of smoke lingers over the entire Denver metropolitan area (and beyond) today.

Causes and Context

This isn't terribly unusual in Colorado.  Colorado has endured several years with very damaging fire seasons since I moved here in the mid-1990s and they seem to be getting worse.  Episodic periods of smoky haze, multiple wildfires that destroy many structures and scorch thousands of acres, and slight instances of carelessness that produce massive property damage seem to be the new normal in Colorado.

Mostly, the fires produce massive property damages in the hundreds of millions or billions of dollars per severe fire season, but comparatively modest injuries and loss of life to people.  But, every new fire is a potential catastrophe when it comes to loss of human life.  So far, we've just been lucky.

Those inclined to see larger trends in these events can look to several large scale factors driving them.

* Pine beetle infestations over the past decade or two have created unusually large quantities of fuel for wildfires across most of Colorado.  Large areas of Colorado's pine forests have huge swaths of dead trees.  This isn't entirely independent of hot, dry recent conditions.  Trees in marginal climate conditions are more vulnerable to infestation.

* A long period of zero tolerance fire suppression starting around the 1950s prevented less epic wildfires that occur naturally from clearing out dead wood and flammable materials.  So, large swaths of highly flammable forest have reached a tipping point making them highly vulnerable to massive wildfires until a huge wildfire purges this material.

* The vast majority of modern fires, however, have human rather than natural causes, even if the human causes amount to only slight negligence.  But, this was far less of problem when Colorado was sparsely populated and had few people living in its mountain forests and dry wild grass plains, and when most of those people were natives to the region who had been acutely aware of the risks since they were children.

As more people are squeezed into an arid state, there are more potential sources of ignition for fires.  And many of those people are non-natives of the arid west aren't sensitive to the risk of harm associated with slight carelessness with potential fire sources.  In particular, many nature loving people have moved into particularly high fire risk "stupid zones" without uniformly taking maximal precautions.  The fire risk associated with urban-wild interface areas where 100% of residents are careful may be modest, but if just 99% of residents are careful, the measures taken by everyone else scarcely matter at all.  The force of nature that is a many thousands of acre wildfire in extreme heat during drought conditions on a windy day can overcome almost any precautions an individual home owner could take against this risk.

* Most of Colorado has experienced sustained periods of drought and record high (for recorded Colorado history) temperatures.  Some of this is due to multi-year ocean current driven weather cycles like El Nino and La Nina, in the Pacific Ocean.  Some of this weather, either directly via higher temperatures or via unusual extreme exaggerations of these long term weather cycles may be driven by an powerful overall global warming trend that is driven by human caused air pollution's impact on the atmosphere.

Historically, droughts are climate events of very broad geographic extent.  If you cluster historic drought data for the United States, the vast majority of the nation's historic drought experience can be accurately modeled by breaking the continental U.S. into about eight or ten geographic regions (isolated mountain valleys and coastal areas affected by quirky currents require far more regions to get to 100% of the United States), and those regions are not themselves fully independent in a statistical sense - they are just distinct enough to not be perfectly correlated.

Looking back over periods of thousands of years, which tree ring and other similar evidence makes possible, we also know that multiyear droughts are not unprecedented.  Like earthquakes and floods, drought severity (including duration) is roughly proportion to drought frequency.  Longer more severe droughts are rare, but the pattern of less severe droughts over a long time period can be used to make reasonable estimates about the likelihood of very severe droughts that are black swan events beyond the realm of experience of anyone alive today.

We are in a period of sustained aridity in the western United States that has already lasted several years and could conceivably continue or a decade or several decades (the odds of which are biased by human caused global warming even if it is not necessarily a simple cause and effect relationship). 

A prolonged drought destroyed a whole civilization in the American Southwest about a millennium or so ago (give or take a century or two).  Other prehistoric world civilizations have faced similar fates in the face of prolonged droughts over large geographic areas.   We could be entering a similar climatic period, although our greater understanding of the circumstances and improved technology will probably give us a greater ability to maintain our civilization in the face of such challenges that our prehistoric ancestors.

Hot, Hot, Hot In Denver

The official thermometer at Denver International Airport registered 99 degrees on Monday . . . breaking the record for June 10 of 97 degrees set in 1952. That's almost 20 degrees warmer than the normal temperature on June 10 in Denver[.]

From the Denver Post.

I am not entirely convinced that DIA temperatures from an airport that entered service in 1995, are comparable at the margins to pre-DIA temperatures for Denver.  I would be more impressed if the measurement were from a Stapleton based thermometer maintained despite the relocation of the airport.  DIA is quite a bit further out from the mountains and is also more distant from cooling vegetative cover.  But, there is not doubt that today has been very hot.

Meanwhile, reports over the weekend from the Denver Post recited that Southeast Colorado including Pueblo is in a third year of "extreme drought" (rated "D4") and that it is starting to experience dust bowl conditions similar to those experienced in the 1930s.

Recalling A Personal Hero Of Mine

Tilly Smith is probably in college now.  She continues to be one of my personal heroes for something she did when she was ten that is a model for us all.  There is really nothing new to say that I didn't say back in 2005, so read the previous post.  But, some heroes are so amazing that they should never be forgotten.  Tilly Smith is one of those heroes.

Ignorance On Partisan Issues Is Mostly Feigned

People asked factual questions about political issues show far less partisan bias when they get a reward for getting the right answers than they do when their misstatements of fact have no consequences, even when those with the incentive to get the answers right have no additional access to information when answering the questions.

Appreciations

* The acid test of whether pop musicians are really talented is how they perform acoustically in a single live take like the 93.3 FM garage sessions. This morning I heard one of those sessions by vocalist Amy Lee and song writer and guitarist Ben Moody of the band Evanescence (before they parted ways) performing a stripped down version of "Bring Me To Life" with nothing but her singing without backup singers, and him playing acoustic guitar with no other instrumentation. It was one of the most exquisite and haunting performances I've ever heard from anyone in any genre. I'm not sure that there is a vocal diva alive today who can match Amy Lee on a good day.

* Poem of the day:

What does a snipe look like?

To be honest, they're the trickiest bird to spot.
They don't fly very well but they tend to hide a lot.

A kinda cross between a pigeon and an owl,
it's a strange bird, one that deserves to be called fowl.

A rooster with a comb, like antlers on a moose;
Many experts would say, it looks like a wild goose.

How do you catch a snipe?

Pillowcases are nice; a garbage bag 'l do.
My brother got lucky; he hit one with his shoe.

I made a super cage out of a cardboard box;
baby snipes are the easiest ones to outfox.

It takes at least two guys; one has to tie the rope
the first one hangs on; if it's real dark, you just hope.

How long does it take to catch a snipe?

You start to hear sounds - like so much gobblety-gook.
Then comes this dumb sensation that you are the schnook.

It could take forever, but usually with youth
you quit hunting after someone relays the truth.

From here.

Crazy SC Man Burns Down Own House Because He Thought It Had Witches

The Item (Sumter, S.C.) reports on the story, and on the fact that the man (Richard Clark) “was deemed not guilty by reason of insanity by 3rd Circuit Judge R. Ferrell Cothran.” State mental health authorities had concluded the man was insane, and the prosecutor agreed that “Clark burned the house down because he believed witches were in the home.”

From  here.

Apparently, if there really had been witches in the house, burning it down would have been justifiable in South Carolina.

Japan Big Businesses Manage Employees Like U.S. Government Agencies

Basically, banishment rooms are departments where [large Japanese] companies transfer surplus employees and give them menial or useless tasks or even nothing to do until they become depressed or disheartened enough to quit on their own, thus not getting full benefits, unlike if they were actually let go.

From here.

I know from first hand accounts that U.S. government agencies, particularly in the District of Columbia and its vicinity, does the same thing.

In both cases, security of employee tenure, by virtue of civil service laws in the U.S., and by strong social and business norms to some extent in Japan, making firing employees very difficult leading to human resources management policies like these.  In smaller entities, the cost of carrying a bad employee is to high proportionately to allow for the use of such costly and wasteful alternatives.

Bad Rule Still Good Law

In the case of Hillman v. Maretta decided today by the U.S. Supreme Court, the Court followed a long line of cases holding the generally applicable state laws in the area of probate, property and divorce are pre-empted by federal laws governing particular assets that are incomplete and ill considered.

This particular case involved FEGLI(federal employee group life insurance) policies. Under the law of the State of Virginia, and of many other states, a divorce implicitly repeals a beneficiary designation in any kind of asset in favor of the ex-spouse unless reaffirmed after the divorce and prior to death. The federal law has no such provision, largely due to oversight, although one provision of the FEGLI law that was enacted in response to a U.S. Supreme Court decision on the subject allows a divorce court to award FEGLI benefits to an ex-spouse if the decree so states and the order is filed with the federal government after the divorce and before the death. (Federal law has, as a matter of federal common law, implicitly read in a "slayer statute" with respect to FEGLI benefits expressly provided for in almost every state, but not expressly provided for in the federal law.)

The U.S. Supreme Court in prior cases held that the FEGLI statute pre-empts the generally applicable state law on inheritance in the case of divorce, and in this case held that a statute in Virginia (which is home to a great many federal employees because of its proximity to the Capitol), that tried to make an end run around this pre-emption by creating a tort lawsuit against an ex-spouse in the amount of FEGLI benefits that go to her (or him) as a result of federal pre-emption of state law in favor of the heirs is also pre-empted. It isn't too surprising that such a brazen attempt to circumvent federal pre-emption would be held invalid, although one could have hoped that resort to the maxim that artificial solutions are acceptable when they solve artificial problems might have won the day.

Similar conundrums arise in a great many ERISA cases, where a similar broad pre-emption of generally applicable state private law has been held to exist despite the fact that ERISA itself offers no meaningful replacement.

The result in almost all of these pre-emption cases is unjust - state legal systems have primary responsibility for these areas of law and do a better job.

Also, considering that Congress has no express power to regulate marriage, divorce, inheritance, or property rights and private law in general, apart from the interaction with their express powers to regulate other things (in these cases mostly interstate commerce and the compensation of federal employees), the existing precedents are a tone deaf way to handle regulation of these matters. There is no meaningful federal interest, other than mere administrative convenience which is almost always overstated (and in fact leads to the opposite in practice, overall), in excluding these assets from generally applicable state law.

(Another deep problem in a lot of these cases is the issue of whether the law of domicile that applies to probate assets, rather than the law selected by a contract of adhesion or the law of the asset holding institution should apply to non-probate transfers which isn't completely unrelated, but since state laws in general are better drafted than incomplete federal law treatments of the relevant issues, there is often little injustice associated with choosing the law of one state rather than another. Still, contractual choices of law made by parties with no real interest in the outcome other than overstated administrative convenience are also problematic in terms of "natural law" style justice in these cases.)

Congress is aware of the issues, as is the executive branch, but because these private law issues have no strong constituency, they rarely become a priority for Congress. Congress isn't particularly good at quality legislative drafting in private law areas that are outside its core expertise.

These are all cases where the crabbed reading of federal law contradicts any fair reading of a "natural law" result or a sensible federal common law precedent. But, the federal courts have been loathe to fashion federal common law in any non-constitutional context where it is not absolutely necessary and prefers not to call it that when it does.

These cases are a perfect example of the problems with a doctrine of legal positivism, i.e. the notion that law consists merely of enacted statutes and cases that is entirely created by authoritative legal bodies and does not exist apart from them and does not have a "natural law" component. It is particularly ironic that this arises in the case of federal law where "natural law" is expressly recognized as existing in the U.S. Constitution itself.

These cases also illustrate the benefits of federal allocations of responsibility for private law in countries like Canada and Germany that allocate more private law responsibility to the national government with state court administration handled locally.