31 October 2006

The Difficulty of A 9th Circuit Split

The idea behind splitting the 9th Circuit Court of Appeals is to make the court smaller and thereby increase collegiality. The trouble with that approach is that "more than 50 percent of the Ninth Circuit caseload comes from the Central District [of California]." This is more than the caseload of some other entire U.S. Court of Appeals circuits. California as a whole accounts for about 63% of the 9th Circuit's work, and about 13% of the number of appeals lodged nationwide.

The First Circuit, which includes Maine, New Hampshire, Massachussetts, Rhode Island and Connecticut, is the smallest of the U.S. Court of Appeals Circuits which manages with just six judges, about half as many as are necessary to consider appeals from the Central District of California alone.

Any court that includes California (and no state has ever been forced to endure the heinous mess of having more than one U.S. Court of Appeals, which would probably develop splits of authority on some issues of federal law), will necessarily be huge.

South Dakota Abortion Ban Poll

A referendum on a proposal to completely ban abortion in South Dakota is currently trailing in a Mason-Dixon opinion poll by 42-52, in a survey of 800 likely voters (margin of error 3.5%), less than two weeks before election day. An earlier poll had shown the measure trailing 39-47.

The lack of an exception for rape or incest in the bill is driving opposition in the conservative state, even though these cases make up only a small percentage of all abortions in the state.

The bill would almost certainly be unconstitutional on its face under Roe v. Wade and likely would never be implemented. The 8th Circuit U.S. Court of Appeals, which includes South Dakota, yesterday sustained a preliminary injunction barring implimentation of a much more moderate measure in the state. South Dakota has only one abortion clinic. The purpose of the bill is to offer the U.S. Supreme Court an opportunity to reverse Roe v. Wade, something its recent abortion jurisprudence shows it has no intention of doing.

Rape and incest reached epidemic levels, in contrast, on Pitcairn Island where the convictions of six men from the island on those charges two years ago has survived a final appeal.

Only 50 people remain living on Pitcairn, which can only be reached by boat. The convicted men make up a quarter of the island's adult males.

The men had argued that rape and incest were not violations of the law on the island, which was settled by the Bounty's mutineers about a century ago.

Something's Rotten In Ohio

Ohio election officials are disqualifying thousands of ballots because the wrong number from a driver's license is recorded on them. A U.S. district judge overruled the process. The 6th Circuit Court of Appeals, for now, has allowed these disqualifications to go forward. There have also been questionable removals of voters from the voter registration rolls.

The timing couldn't be worse.

Halloween 2006

The dog and the vampire marched off to the school parade this morning with their graveyard cake made of whipped cream and graham crackers and crumbled Oreos.

This evening we will, once again, greet trick or treaters with candy. Their neighbors will shower my children with candy and praise because most of the other kids who come to their doors won't be from the neighborhood, while mine, because they often play in the front yard, are known to one and all.

Halloween has become a celebration of individual expression and candy, which is mostly a good thing.

And, who celebrates All Saint's Day? Even hard core liturgical Christians who wear suits to church, are annointed with ashes from the palm leaves of Palm Sunday on Ash Wednesday, go to church every day during Holy Week, light Advent candles in the weeks leading up to Christmas, say grace at meals in restaurants, and can tell you when Pentacost starts and ends don't do that, especially when it falls on a Wednesday. O.K., maybe it gets some token observance at Catholic schools (and maybe even Epsicopal ones). Who knows? There may even be a septegenarian nun left in one of them that assigns Saint reports to her charges, and the day may be noticed by the die hard Catholics to go to mass every morning before work.

Likewise, the only people who take the demonic or satanic dimensions of Halloween seriously are the kind of people who feel a need to ban Harry Potter from the schools, worry that instrumental music in church could send you to hell, and take the Biblical notion that women must submit to their husbands very seriously.

For 98%+ of the population, it is a time for children to dress up and dreaming about what you will be when you grow up. Alas, job openings for wizards, Princesses, and ninjas are rather more scarce than the demand. Parents worried about excess sugar far exceed those concerned about its metaphysical dimensions.

The tricking has declined to very low levels. Devil's Night, always a nervous evening in Deroit, didn't even merit a mention in today's Detroit Free Press. Then again, in the second most dangerous city in the nation, who needs an excuse for crime anymore (incidentally, I lived for about a year and a half in Amherst, New York, which is mostly suburban with a little bit of a main street near a college campus, the second safest city in the nation, the real estate prices there are miserably low anyway, like many very safe suburbs of Detroit it is near the not so safe central city of Buffalo, New York).

As one researcher put it:

Year in and year out, it's a red flag for Detroit. This ranking each year shows that "Sorry, you aren't getting better." I'm sure it's not what people who are trying to improve Detroit want to hear, but it's reality.

Flint, another post-industrial Michigan city is number 3. Twenty years ago, General Motors employed 876,000 people. Now, it has 335,000 and is laying people off (at least 30,000 hourly and thousands of salaried workers). Part of this is due to the 1999 spin off of now bankrupt Delphi, which currently has about 185,000 employees and is also laying people off (more than 30,000 are planned by 2008, including about half of its 50,000 U.S. workers). Ford and Chrysler (since merged into Dailmer Chrysler) have faced lay offs as well and continue to do so. Ford is laying off 30,000 people.

We are a week away from the 2006 midterm elections. Mostly, this year will be a Republican nightmare. But, there are initiatives on the ballot, like Amendment 39 in Colorado, which would be horrific for Colorado schools, forcing them to slash funding on support staff like school nurses and guidance counselors and bus drivers. And, the downticket statewide races are very close.

30 October 2006

On Toys and Games

My children have gotten lots of toys over the last seven years. Lessons learned:

* The fact that children are old enough to not eat a toy with many small parts does not mean that the toy is a good idea. Little calendar magnets, magnetic poetry words, bath toy letters, plastic tea set pieces, halves of plastic Easter eggs, beads, dominos and parts of a few games we have with many small pieces have swiftly become part of the leaf litter. They have as much diffusion potential as dust. If it has more pieces than a checker set, it deserves a sober second thought, at least until late elementary school. Also, any art projects or toys with many parts, like puzzles, need to be behind closed doors when not in use, so no one is tempted to open them up and disperse them. Keeping parts for a toy in a ziplock bag helps, but only if you are absolutely vigilant and supervise the activity 100% of the time, which you don't want to do.

* Simple toys are much loved. Some of my kids favorite toys are the soccer ball, the Razor scooter, and their bikes. One of their favorite games is twister -- which has only two pieces. One of their favorite inside toys for many years was a set of several dozen large cardboard blocks. One of my son's favorite toys is a little die cast 747, I got him after I went on a business trip. Both children continue to love their stuffed animals, the comforter from my eldest's crib, and the fuzzy blankets I got at Walgreens a couple of years ago. Big rubber duckies and single piece floating boats and plastic cups have been the consistent favorites among bath toys.

* Toys that require batteries or have fragile parts tend to fall into disuse sooner. A pop up book will survive for three to five readings, with luck.

* Children are like dogs, they have an innate need to dig. It pays to give them a spot to do it in, rather than fighting a futile fight to stop it entirely with the consequence being very public blemishes in your landscaping.

* The fewer cushions your couch has, the less time it takes to put them back after they are appropriated for an imaginary fort or boat.

* Vacuum cleaners, mops, brooms and dustpans are attractive nuisances. A closet to keep them in when they are not in use is nice to have.

* Fragile things will be broken. This can be delayed if fragile things are less easy to access than other less fragile things.

* Too many choices are bad. Even if you have many toys, only a few should be available at any one time. If there are fewer choices, fewer toys will actually be played with, and every single toy will end up strewn all over the house on a regular basis. The day we instituted the rule that required any toy brought up from storage to be replaced with a toy removed from their rooms was a good day. The rule against too many choices also applies to clothing.

* It pays to rearrange furniture in children's bedroom once or twice a year. All sorts of things end up hidden deep beneath it.

* Buy Goo Be Gone. It is the only substance that is highly effective at removing crayon marks on walls and floors.

1900 Posts

My posting rate here at Wash Park Prophet has slowed significantly since I started also blogging at Colorado Confidential, but thankfully, the traffic here has remained steady. Loyal readers, you are appreciated.

The other downside of intense political posting, and this will ease up a little once the must cover topics leading up to the election are well in hand, is that a number of interesting stories have escaped comment.

Some I will probably get too, like the fact that there are 159 coal fired power plants on the drawing boards for the next quarter century. Others will be hit and miss, like the facinating debate arising over the state of string theory stirred up by Woit and Smolin's new books (for once, I can say that these are people and ideas I was quite familiar with long before everyone else was aware of them). Some will also certainly be lost in the shuffle, like an examination of what Lula's re-election in Brazil means, and a review of one of Lone Tree's new coffee shops.

After the election (I use that phrase often enough to make it an acrynom, as do most of those around me these days), I'm planning on shifting back to more reflective writing. For now, reflection will have to be fleeting.

29 October 2006

The Cheapest New Car You Can Buy

What is the cheapest new car you can buy?

Based on MSRP alone, you'd pick the 2007 Chevrolet Aveo 5, with manual transmission and an MSRP of $9,995. It doesn't include air conditioning or a CD player. Even more important, it's fuel efficency (27 mpg EPA city), means that over 100,000 miles of city driving, with a fuel cost of $3 a gallon, that a lifetime of fuel for the vehicle will cost $11,111. Thus, for fuel and MSRP combined, you are looking at $21,106.

The cheapest competitor in a no air conditioning, no CD player model is the Hyundai Accent, which gets 32 mpg city and has an MSRP of $10,415. It's lifetime fuel costs with the same assumptions is $9,375, for a total of $19,790. So, once you consider the price of gas, this is a cheaper option than the Chevy Aveo 5.

The runnerup, with the same fuel efficiency, is the base model Kia Rio, which has an MSRP of $10,770, for a total of $20,145, it is also cheaper than a Chevy Aveo 5 once fuel costs are considered.

Now, suppose that you can handle manual transmission, but you do want air conditioning and a CD player. The Aveo's MSRP with those options is $12,690. The Hyundai Accent's MSRP with those options is $11,765. The Kio Rio's MSRP with those options is $12,645.

The Toyota Yaris 3-Door Liftback's MSRP with those options is $11,790 (you can't buy it without air conditioning, but can drop it to $11,050 if you skip the CD player). The Yaris gets 34 mpg city, according ot the EPA, a lifetime cost with the same assumptions of $8,824.

So, the combined fuel and MSRP with air conditioning and a CD player for all four models is:

Toyota Yaris 3-Door Liftback: $20,714
Hyundai Accent: $21,140
Kio Rio: $22,045
Chevy Aveo: $23,801

In fact, on a model with air conditioning and a CD player, the Yaris is still a better deal, even if the Chevy dealer provides a $3,000 discount from MSRP on the Aveo 5 (more than 23%), while the Toyota dealer insists that you pay full MSRP. In reality, the Chevy dealer won't give you that good of a deal, while the Toyota dealer will likely cut a deal something below MSRP, even if it is a modest discount.

In fact, even with automatic transmission, a Yaris still gets 34 city/39 highway, and the MSRP with automatic transmission, AC, and a CD player is $12,690, compared to $12,690 for a Chevy Aveo 5 with manual transmission, AC and a CD player getting 27 mpg city.

Thus, while the Chevy Aveo 5 has the lowest MSRP of any 2007 new vehicle in the United States, the Toyota Yaris, Hyundai Accent and Kio Rio are all better deals once fuel efficiency is considered. The Hyundai Accent has the lowest possible cost adjusting for fuel efficiency in its bare bones model, and the Toyota Yaris is the cheapest vehicle you can buy, adjusting for fuel efficiency, if you want a vehicle with air conditioning and/or automatic transmission.

Incidentally, while a number of hybrid vehicles get better fuel efficiency and come iwth tax credits, the fuel savings and tax credit benefit combined are still not enough to outweight their higher MSRP and put them in contention for being the cheapest vehicle in the U.S. adjusting for fuel price.

The lowest MSRP hybrid on the market is the Honda Insight, which starts at $19,330, and would have a lifetime expected fuel cost, using the assumptions above of $5,000 with a manual transmission (which is found in the less expensive model), for a total of $24,330. After a $1,450 tax credit, the MSRP plus lifetime fuel costs less the tax credit is $22,880. The less expensive model does not include air conditioning, although it does include a CD player. Of course, the Insight, a two seater, is actually a smaller car than any of the other vehicles considered above as well.

Throw in automatic transmission and air conditioning, as well as the standard CD player, and a Honda Insight gets 57 mpg instead of the 60 mpg that the manual model gets (implying a $5,263 lifetime fuel cost), and starts at an MSRP of $21,530, with the same tax credit available. This brings the total of MSRP and lifetime fuel cost less the tax credit to $25,343, also more than a comparable Aveo, Accent, Rio or Yaris. And, in reality, you are likely to get a better break from MSRP from the dealer on a conventional subcompact, than you are on a hybrid of any kind.

The bottom line is that if you want a new car with the cheapest lifetime cost available, the Toyota Yaris is the way to go, on an apples to apples basis, and that Hyundai Accent is the way to go if you want the absolutely most stripped down new car commercially available.

The Yaris also outperforms the Aveo 5, with 3% more horsepower and has a slightly larger exterior, despite having much greater fuel efficency, and the Yaris has considerably more cargo space. The Yaris has a slightly smaller passenger area overall.

27 October 2006

Army Realignment

While the U.S. military as a whole, in part due to Office of Management and Budget decisions made in the White House, has been slow to recognize that it allocation of resources is a poor fit for current demands, the Army has been less slow to respond in allocating its internal resources:

"Pentagon records show one-fifth of the Army's active-duty troops have served multiple tours of war duty while more than 40% haven't been deployed to Iraq or Afghanistan," reports USA Today.

So the Army is "realign[ing] its forces to prevent a small slice of soldiers who are shouldering much of the fighting from wearing out."

"The Army is moving soldiers from specialties such as artillery and air defense to high-demand roles: infantry, engineering, military police and intelligence, Special Forces, civil affairs and psychological operations" [according to the Army]

This is old news, but bear recalling.

Word of the Day

From here via Daily Kos: "dorkofascist"

It refers to a dork who allows his dorky fantasies to get inhumanly and brutally dark, and is a play on the hard right blogosphere favorite word "Islamofascist", which many liberal bloggers take umbrage at as racists and ill informed.

Nervousness Confirmed

My worries about the New Jersey domestic partnership case's impact on Colorado has been coroborated. The Grand Junction Sentinel has decided to endorse a "Yes" vote on Amendment 43 (constitutional "one man, one woman" marriage definition), reversing a previous "No" endorsement.

Teens On God

American teens overwhelmingly believe in God. But, the nature of that belief is decidedly more bland than that of their ancestors.

The authors call it Moralistic Therapeutic Deism. The creed is simple and, yes, conventional -- but, where the authors find that it matters, MTD is not traditional. Basically, God exists and watches over human life, which was created by God. God wants people to be nice, as it says in the bible and in most world religions. God does not have to be involved in our lives except to solve our problems and make us happy. Good people will be even happier in heaven after they die. The religious beliefs of American teens tend to be -- as a whole, across all traditions -- that simple. It’s something Jews and Catholics and Protestants of all stripes seem to have in common. It is instrumentalist. "This God is not demanding," say the authors. "He actually can’t be, because his job is to solve our problems and make people feel good."

Finally, it’s no wonder to Smith and Denton that adolescents don’t seem to argue much about their faiths -- when it comes down to it, they all believe pretty much the same thing. . . . Teenage religion is nothing, if not vague. Yet, even nonreligious teens do not tend to be hostile to religion; their reasons for being nonreligious are often as vague (or nonexistent, in some cases) as the explanations religious teens give when asked what or why they believe. . . . The authors conclude that American Christianity is "either degenerating into a pathetic version of itself or...is actively being colonized and displaced by a quite different religious faith." When asked to articulate their faith, not one of their interviewees mentioned self-discipline, working for social justice, justification or sanctification, and 112 of them described the purpose of religion in terms of "personally feeling, being, getting, or being made happy" (using the "specific phrase to 'feel happy' well more that 2,000 times").

People who care about self-discipline, working for social justice, or morality are often politically active liberals. They disproportionately reject Christianity.

Anne McGihon on Ballot Issues

Anne McGihon, a Democratic who represents Colorado's House District 3 in the Colorado General Assembly, and my professional colleague, has provided her ballot issue recommendations to her e-mail list, and I am providing it here to a larger audience:

I have promised to send out my take on the various ballot issues, and retention of judges. In general, if you have not read and understood a ballot issue, please vote NO. You may read about the State ballot issues in your Bluebook. This year’s Bluebook is hard to miss because it is bigger than usual!

Referred measures (these are the ones with the letters) have been considered by the General Assembly and at least 2/3s of the members have voted to allow the measure to go to the ballot. That does not mean a legislator agrees with the issue, but agreed that the voters should have their say on the issue.

Amendments are citizen initiatives (the numbered ones), and are petition driven measures. This year’s measures affect both the State Constitution and statutes.

Ref E allows for a property tax credit for completely disabled veterans. That is about 2200 citizens in Colorado. You decide.

Ref F takes recall deadlines out of the State Constitution. It is fine with me.

Ref G. deletes obsolete Constitutional provisions. This is also fine with me.

Ref H bars the deduction from state income tax of payroll to illegal immigrants. You decide.

Ref I allow for domestic partnerships in Colorado. This law protects the legal rights of couples not allowed to marry. It protects the children of couples not allowed to marry. I support Ref I.

Ref J addresses the allocation of funding for schools and is the preferred solution over Amendment 39. I do not support this measure or Amendment 39, as I believe our school districts should be governed by locally elected school boards dealing with local issues.

Ref K requires the Attorney General to sue the United States Government to recapture state monies spent on illegal immigrants. Such a lawsuit may have symbolic value but is not likely to prevail. You decide.

Now to the Amendments. Only one of these is a proposed statutory amendment and the rest affect the State Constitution. Generally, I am opposed to amendments to the State Constitution.

Amendment 38 would make it easier for citizens’ initiatives to get on the ballot. It is already easy enough – just look at how many Amendments there are on the ballot this year!

Amendment 39 is the so-called “65% solution,” mandating how local school districts allocate their spending. Again, it is a state mandate on local school boards, and puts important school services at-risk in almost all school districts.

Amendment 40 would push out good judges for no reason. Colorado already has a process for judges with checks and balances, accountability and discipline measures, mandatory retirement at age 72 and retention votes by the people. More than 100 organizations and people in leadership positions across the state and across party lines publicly oppose Amendment 40. Every major daily newspaper has come out against this bad idea. And, for the first time in history, Governors Owens, Romer, Lamm and Vanderhoof came together to warn Coloradans about the consequences of this measure. Both the Democratic and Republican candidates for Attorney General also oppose the measure.

Amendment 41 applies to all public employees from the Governor, to the firefighter, to the janitor, or to anyone with a state contract. It is a ban on gifts from anyone, not just lobbyists, to any state employee or a member of their family. Because Amendment 41 is a constitutional amendment, the General Assembly cannot “polish” it. While lobbying reform is important, it should not be locked into Colorado’s constitution where there is little flexibility to change the law to correspond with the ebb and flow of public policy and the needs of the times. I support limiting or banning gifts from lobbyists. But Amendment 41 just creates another inflexible and unworkable bureaucracy.

Amendment 42 is the minimum wage initiative. It would require employers to pay $6.85 an hour to hourly employees, which will be adjusted for inflation in the future. (The current minimum wage $5.15.) This is the difference between earning an annual salary below the federal poverty level and earning a salary above the federal poverty level. While I wish this was not a Constitutional Amendment, I support it because it is the right thing for Colorado workers.

Amendment 43 is a Constitutional amendment that defines marriage as between a man and a woman. This duplicative of established and existing state law. It is therefore redundant and unnecessary.

Amendment 44 is a proposed amendment to Colorado statutes which would legalize possession by a person 21 years and older of less than an ounce of marijuana in a private setting. Of course, this would remain illegal under federal law. In my experience, having contradictory state and federal law sends a confusing message. I also respect the strong opposition to this measure communicated to me by law enforcement.

As a member of the Colorado Bar, I urge a YES vote on retention of all the judges on this year’s ballot. The Judicial Performance Commission conducts a complete and thorough survey of the performance of each judge by interviewing attorneys and other judges. All of the judges received favorable reviews.
You may have read about the movement to remove Judge Marquez. I especially urge a YES vote for Judge Marquez, as he received overwhelmingly favorable reviews from the Bench and the Bar.

We agree on the vast majority of those issues, although I personally, although weakly, favor Amendment 44.

How Much Of An Atheist Are You?

We are all atheists about most of the gods that humanity has ever believed in. Some of us just go one god further.

— Richard Dawkins quoted at The Official Richard Dawkins Website.

Via NewMexiKen.

Pro-Torture Beyond Their Dreams

Slate explains that the Military Commissions Act of 2006 approved by Republicans in Congress and by a small number of Democrats like John Salazar and Ken Salazar from Colorado, gave torture advocates even more than they had dreamed possible in 2002 when they wrote the torture memos. They assumed that they were manufacturing defenses, which might or might not prevail, when the perpetrators were ultimately called to account in the courts. Instead, the Military Commissions Act has prevented that moment of court review from ever happening.

Our country has been betrayed.

The Musgrave v. Paccione Debate

Michael Shiavo, in a recommended diary at Daily Kos, related the behind the scenes action at yesterday's Musgrave v. Paccione debate.

Simply put, his mere presence unnerved Musgrave and helped induce Musgrave to leave immediately afterwards, while Paccione shook hands and answered questions afterwards.

26 October 2006

A Year Ago Today On This Blog

A year ago today on this blog, I made 18 posts.

While I still post a lot, and divide my writing between this blog and Colorado Confidential, I'm pretty sure that I haven't had a day that prolific for a long time.

Powerful Ads Don't Have To Be Flashy.

Colorado Lib highlights an advertisement (available via YouTube) against Marilyn Musgrave's 4th Congressional District candidacy highlighting her failure to support diabled veterans in Congress and her deceptive ads. It was probably the cheapest ad to produce out there today. But, this doesn't stop it from having an impact.

Nervous About I, 43 and CD-4

New Jersey's highest court yesterday ruled that gay and lesbian couples are entitled under the state constitution to legal rights associated with marriage and gave the state legislature six months to pass legislation to that effect, a ruling similar to one made during Howard Dean's tenure as Governor, in Vermont.

From my perspective here in Colorado, the timing could have been better and I'm nervous. Colorado has two ballot measures relevant to the New Jersey court's ruling before voters who are voting absentee and early voting as I write, in an election that concludes on November 7.

Referendum I would enact a state domestic partnership statute, similar to the one mandated by courts in Vermont and New Jersey. Amendment 43 would put a one man, one woman definition of marriage into the state constitution.

Initial polling showed that voters favored both measures, although Referendum I was considerably more popular than Amendment 43 which was looking like the usual pre-election slump in support for ballot measures might bring it a narrow defeat. In other words, steady as she goes looked like a good campaign strategy.

Now, the question is, will the New Jersey decision disturb the inertia that had I winning and 43 losing.

While nothing actually changes, the psychology of voting in favor of Referendum I changes a little when it feels like you are heading off a court challenge, rather than doing the right thing because you are part of a state that wants to do the right thing democratically. Similarly, the New Jersey decision takes away from the argument made by 43 opponents that it isn't necessary because the status quo is already enshrined in a state statute and federal law.

If backlash against the New Jersey decision (which on the merits I think is a good policy choice, although I lack sufficient familiarity with New Jersey state constitutional jurisprudence to evaluate it legally), energized gay rights opponents, passage of Referendum I could become less clear, passage of Amendment 43 may be more likely, and it is even possible that Marilyn Musgrave in the 4th Congresional District, whose legislative career has been defined by opposition to gay rights, could receive a boost.

I'm also worried that the New Jersey Senate race, where the Democrat is struggling in one of the bluest states in the nation, may be impacted negatively by people who are energized to vote Republican in order to support conservative federal judges. This is a year when one Senate seat really could make a difference.

Not everyone follows the news as closely as I do, and the people most likely to really care about the New Jersey case are also the people most likely to already be voters who have made up their minds about I, 43 and the 4th CD race. But, here in Colorado, I'm still wishing that the New Jersey high court had waited another couple of weeks to release its ruling.

Local Color

Many of my regular readers know that about half of the posts at this blog are brought to you from the comfort of Scooter Joe's coffee shop at 726 Lincoln Boulevard, across the street from the Anthem building in the Capitol Hill neighborhood of Denver.

The clientele changes over time. Before final exams at D.U. Law School, we were flooded with cramming law students. We are also a favorite of the IT group at Anthem. But, times change. Now, we have day traders, buying and selling stocks in an effort to profit from intraday variations in stock prices. Cool!

I'm not sure if this represents a step up, or a step down, from the law students.

25 October 2006

CoCo on CPR

Colorado Confidential, my other blog, was featured today on Colorado Public Radio's interview program called Colorado Matters.

The CEO of the Center for Independent Media, which makes Colorado Confidential possible, more or less successfully stuck to the story he wanted to tell, which is that we are breaking original news stories that the traditional media isn't covering.

He took it on the chin a bit by somewhat overdoing the claim that we are fair and balanced, to use the cliche, against rather obvious evidence that we are indeed left leaning in our political come from.

We do owe an allegiance to the truth, and we are committed to publishing accurate, reality based stories. This makes us journalists.

But, honesty does not require impartiality. The fact that someone can articulate two points of view on the subject, does not mean that there are two fact based legitimate points of view on the subject. There is one guy's opinion, another guy's opinion and the facts, and often the facts take sides.

For example, political corruption is not an equally bipartisan issue, and it happens to be a big part of what we do. We do muckracking. At this time and place, the Republican party is the more corrupt party. In part, this is a hang over of having been in power too long. In part, this is because the Republican Party is, at heart, a party that doesn't believe in government and thus, doesn't respect it.

Colorado's Republican Secretary of State Gigi Dennis, has a hard time getting her head around the concept that she is not supposed to carry out the election laws in a non-partisan manner, to the point where she has actually served as a campaign official for candidates currently running for office in an election she is running.

There is no Democratic equivalent to racist e-mail fiend and retiring state legislator Jim Welker (who is also facing Congressional and criminal investigations for his questionable private business practices), or bombastic nativist Tom Tancredo famous for his "nuke Mecca" comment, among others.

Two Republican DAs have made headlines in the last couple of years for their poor conduct on the job. One, in Aspen, gave her husband sweet heart deals, alienated the staff and lied to the people paying the bills in county government about her budget -- she was recalled. Another, in Araphahoe County, after truly alienating the local judges with stunts like have her deputies keep track of the time witnesses spend waiting with stopwatches, is now facing criminal charges for abuse of office this week. None of the state's Democratic DAs have done anything like that.

No Democratic party county official has made a show of having sex with their subordinates, as Republican Tracy Baker did during his term as Arapahoe County Clerk and Recorder before he was recalled, and as a Republican Larimer County Assessor's candidate seeking to return to office now did when he held that post.

Democrat Bill Ritter isn't praising federal law enforcement officers for breaking criminal database privacy rules that he helped pass, Republican Bob Beauprez is doing that, on the front pages of the papers.

Republicans like Ohio Governor Taft, Illinois Governor Ryan, Kentucky Governor Fletcher, Ohio Congressman Ney, Texas Congressman DeLay, and California Congressman Cunningham have all faced criminal investigations while in office. Republican Congressman Foley from Florida had to resign for sexually harassing a male page. Republican Congressman Sherwood from Pennsylvania is yet another of the "pro-family" politicians caught red handed in an affair and has been accused of beating up his mistress. The Republican candidate for the U.S. Senate in Virginia was a KKK loving, confederate flag waving guy who stuffed a deer head in a black family's mailbox with an intent to harass them when he was in college out of spite.

Not every Democrat has been a perfect role model, with the sorrid affair of New Jersey's Democratic Governor coming most vividly to mind, but there really is no comparison between the two parties right now. But, he promptly resigned. When Deanna Hanna got too aggressive in a fund raising letter, she was promptly thrown under the bus and resigned, even though she probably could have fought the charges, as Joe Stengle did when his questionable requests for off season per diem reimbursements came up.

The differences goes well beyond personal integrity. The Democratic race for Governor didn't have candidates of the same party calling in law enforcement to the state convention to keep order while it took half a day to count the votes. The Democratic candidates for Governor didn't trade threats of criminal charges with each other. The Democrats in Colorado didn't, as the Republicans did in the 5th Congressional District, run a race so ugly that the departing incumbent condemned the winner as an unendorseable sleezebag.

The Republican Party in Colorado, as part of a national phenemona, is imploding, and we're simply telling that story and like the voters will be in November, we are not very sympathetic to their plight.

The GOP Worry List

MyDD posted a week old Republican list of races they need to defend, yesterday.

Of particular interest to me is the geographic breakdown.

The only lost cause in the South, out of eight races, is DeLay's seat, where he has been indicted but not allowed to place a successor on the ballot.

Lost Causes:
Senate: MD, MI, MT, WA
House: AZ-8, PA-10 (Sherwood), OH-18 (Ney), TX-22 (DeLay)

Of the races leaning Democratic, out of twelve races, only two are in the South. One, the Foley race in Florida, is a classic "live boy" case that broke as an October surprise forcing Foley to resign.

Leans Dem
Senate: OH, PA
House: CO-7, FL-16 (Foley), NC-11, IN-2, IN-8, IN-9, NY-24, NY-26, OH-15, PA-7

Five out of nineteen toss up races are in the South or border states.

Toss Up
Senate: MO, TN, RI, NJ
House: CT-2, CT-4, FL-13, IA-1, IL-6, KY-4, MN-6, NM-1, OH-1, OH-2, PA-6, PA-8, VA-2, WA-8, WI-8

Five out of seventeen races leaning Republican are in the South or border states.

Leans GOP
Senate: VA
House: CA-4, CA-11, CO-4, CO-5, CT-5, FL-22, KY-02, KY-03, NE-1, NH-2, NV-2, NY-20, NY-25, NY-29, TX-23, WY-AL

Thus, about 10% of races leaning Democratic are in outside the former Confederacy or the border states of Kentucky and Missouri. This would be about 6% absent a spat of Republican scandals. In contrast, more than 20% of those that are toss ups or lean Republican are in those states.

There are also definitely hot spots in terms of the states making the list at all:

New York 5
Pennsylvania 5
Ohio 5
Colorado 3
Connecticut 3
Indiana 3
Florida 3
California 2
Kentucky 2
Texas 2

Considering its size, Colorado is right in the thick of it, thanks to Perlmutter, Fawcett and Paccione.

Progress In Iraq, Sort Of

On Monday a week and a half ago, the Denver Daily News included an Associated Press story on Iraq that represents perhaps the most important development in months in Iraq. A group of Sunni insurgents announced that it had established an Islamic state in Iraq.

The Mujahedeed Sura Council -- an umbrella organization of insurgent groups in Iraq -- said the new state was made up of six provinces including Baghdad that have large Sunni populations, along with parts of two other central provinces that are predominantly Shiite.

Why does this matter? Because every negotiation must start with an opening offer. Until you have someone to talk to and something to talk about, you can't end the conflict.

The Kurds were first to put their bid on the table, asking for an autonomous Kurdistan even before the Iraq War began. The Shiites made their bid for an autonomous region of Sumer in the Southeast, this August. Now, all major political forces in Iraq have made a statement about what they want from a future Iraq and those bids, while not perfectly harmonous, are also not irreconcilable with a bit of good old fashion Middle Eastern haggling.

Notably, U.S. military involvement is virtually irrelevant to the discussion.

Making A Deal

The war in Iraq has been trudging along for about three and a half years now. There has been an orgy of violence. Actions have made clear that the U.S. led coalition is unwelcome in the eyes of the insurgents. But, while the Shiite forces have had some high profile visible leaders, and the Kurds have had their act together all along, there has been no high profile leader of the Sunni insurgency, no sense that it had gelled into a dominant movement, and most importantly no demands that anyone who wanted the violence to end could fulfill.

International wars end when the leaders of the countries involved cut a deal. The can stop very quickly and with very little on going violence. You can't do this when you have a disorganized insurgency. There is nobody to negotiate with to end the conflict.

The Current State of Affairs

Juan Cole reveals on an entry on his site for that date that the Sunni insurgents aren't the only parties to this discussion:

The radical Salafis in Iraq, led by the Holy Warriors' Consultative Council (Mujahidin Shura Council), appear to have endorsed the goal of a Islamic Republic in the Sunni Arab heartland of the country "after the Kurds establish their own state in the north and after the Shiite rejectionists have established their confederacy of the middle and the south, with the help of the Jews of the north [Israel] and the Safavids of the south [the Iranians]." The proposal therefore seems to be a direct response to the parliamentary vote last week wherein the Shiite majority and its Kurdish allies rammed through a law allowing the formation of further provincial confederacies. Sunni Arab parties mostly oppose such confederacies, favoring instead a strong central government, but the Shiites voted while they were boycotting parliament and so they were denied even a chance to debate the issue.

The internet video said that the new state should "encompass the governates of Baghdad, Anbar, Diyala, Kirkuk, Salahedddin, Nineveh and parts of Babel and Wasit," and called for Sunnis to pledge allegiance to Shaikh Abu Omar al-Baghdadi as the leader of the proposed fundamentalist republic.

Oh, wonderful. Now the Sunni Arab fundamentalists want oil-rich Kirkuk to be part of their state. The Kurds also want it, as do the Turkmen. That is going to be a pretty picture.

The videotape affirmed, "Our ancestors built the Baghdad of [Harun] al-Rashid and the Caliphate, and they will never go out of our hands save over our dead bodies."

This internet video is rhetorically extremely sophisticated, according to al-Hayat's transcription of key passages. The glory days of Baghdad under the Abbasid Caliph Harun al-Rashid, when it was perhaps the most advanced center of world civilization, are a powerful symbol for Iraqis. Baghdad was the center for centuries of the Abbasid Caliphate, a church-state that ruled a vast empire that stretched from Morocco to Afghanistan. Many Sunni revivalists wish to see the caliphate restored and to subsume under it the nation-states of the Middle East. [This is a pipe dream; people in the region may not like their regimes, but they love their countries and value their independence.]

The Sunni fundamentalist Iraqi Accord Front challenged the new law on the formation of provicial confederacies in Iraq's constitutional court.

The secular National Iraqi List led by Iyad Allawi opened an investigation of 8 of its Shiite members, who participated in last Wednesday's parliamentary session and helped establish a quorum and pass the measure, which was rejected by Allawi. Those 8 are likely to go over to the Shiite fundamentalist United Iraqi Alliance. Leaders of the UIA denied rumors that the party might split over the issue of centralized state versus regional confederacies, saying that the Shiites will stick together. The confederacies were rejected by the Sadr Movement and the Fadhila Party.

What They Want

The six provinces the Sunni insurgents are claiming are the most violent in Iraq. The Kurdish North is comparatively violence free and has been talking seriously about either independence or an autonomous Kurdish confederacy. The Shiite Southeast has experienced moderate violence and also has expressed interest in forming an autonomous Shiite confederacy.

The latest announcement puts many power brokers in all three of the biggest ethnic groups in Iraq pushing for the same goal, a partition of the country into a Kurdish North, a Shiite Southeast, and everything else. It essentially concedes Sunni willingness to give up claims to Kurdish areas and the Southeast.

Sticking Points

Of course, like any set of opening offers, it isn't a complete deal. Oil rich Kirkut is, as Juan Cole notes, still very much an object of negotiation, as is a little piece of Wasit province. And, the AP understates the issues associated with the fact that several of the six provinces claimed by the Sunni insurgent group are very ethnically mixed.

The cynical side in me thinks that the Sunni insurgents are making claims on Wasit and the ruins of Babylon mostly so that they can give up that chit to the dominant Sunni forces in exchange for Kirkut. The Kurds want Kirkut, but thanks to Saddam Hussein's machinations while in power, this is the one part of the territory that they want which is not a fait accompli. They have managed so far without its oil wealth, and while they would certainly like it, it is hardly beyond the realm of possibility that they might be willing to give it up in exchange for other things that they would like, such as international recognition of their independence, as opposed to mere regional autonomy within Iraq. A swift resolution that gives them a nation state might be worth giving up a stream of oil money.

Shiites might be willing to pressure their momentary Kurdish allies to give in, in order to take Wasit, Babel, and the rest of the Southeast confederation that will likely be called Sumer without anyone else making claims to it. And, like the Kurds, the Shiites might be willing to give up any claim to Kirkut's oil wealth that might might have if a centralized Iraqi government continued to exist. Indeed, they have more to gain, because in return they would receive Southern oil fields free of national government claims. Indeed, they might even be able to give up some thinly inhabited parts of Wasit and Babel if they could get independence for the rest in the deal.

The Turkmens would also like Kirkut, as Juan Cole notes, but they lack the clout to get it. They are going to end up as a minority in someone else's turf no matter what happens in this situation.

The hard part of this arrangement, and the reason that the Baghdad based Shiite Sadr movement are opposed to it, is that people fear that in Sumer and Kurdistan leave, that the Sunni Islamic State that the Sunni insurgents have proclaimed will really happen. They would like to look after their own in places besides their autonomous region.

Allowing Anbar and Ninevah provinces (two Sunni dominanted provinces in the West) to be controlled by Sunnis easy enough, and giving autonomy to Anbar would remove the most violent of all of the provinces in Iraq from the equation. But, Baghdad and Babylon have great symbolic value. Settling for Anbar and Ninevah would indeed be half a loaf, particularly without Kirkut, which would leave the provinces without any oil wealth.


A cleaner split would be to give the Kurds and Shiites in the Southeast complete independence, and then to set up Swiss style cantons with a weak central government in the remaining six provinces with cantons having autonomy considerably greater than say U.S. states. It might even be helpful to put in place a Caliph with the powers of a moderately strong constitutional monarch, to reassure Sunnis and others skeptical of the regime that it had broken with Western tradition and was no longer a mere puppet government of the U.S. coalition.

Bringing back the monarchary's remaining representatives to endorse the constitution making process in Afghanistan was quite helpful in making the regime established there by the Loyola Jerga more legitimate, which is one reason why Afghanistan, while hardly peaceful, is managing to maintain more order than Iraq has with 10% as many foreign troops, despite having a similiar population and geographic area.

Also, the right Caliph, if he had lifetime tenure (if not actually dynastic rights, whatever tradition from the Caliphate period demands), could be a stablizing force that could smooth over many of the muddy steps of trying to build civilian rule from fragile mutli-ethnic coalitions distrustful after so much blood has already been spilled. Constitutional monarchs in Spain, Thailand and Cambodia, while hardly perfect or all powerful, have served similar helpful purposes.


Giving up your arms for political rights is only a rational choice when you aren't guaranteed to always loose in the political realm, as Sunnis are now with the Kurds and Shiites having the power to secure 80% of the seats in parliament even if Sunnis fully participate in the process (and more if they don't, as has been the case so far). In smaller cantons where Sunnis are a larger share of the population, in contrast, political power might actually be valuable enough to give up arms.

This would create a strong incentive for genuine multi-ethnic coalition building in the four multi-ethnic provinces in the East, would give Sunni fundamentalists free reign in Anbar and Ninevah in the West, and would give the Sunni populations that now back the Sunni insurgents the comfort of knowing that they were part of a nation that retained Baghdad and Kirkut. If Kirkut's oil wealth were divided fairly by the central government, the Sunni insurgent incentives to actually control Kurkut politically or militarily would be greatly reduced. If that rump federal Iraqi state were able to acquire the ruins of Babylon in Babel province from departing Sumer, a symbolic crowned jewel for Sunnis seeking to revive the vision of the Caliphate, the grass roots support for the Sunni insurgency might wane.

Sunnis in the West, with residual loyalties to Saddam, would also have a backup plan. If they found being part of a rump Iraq intolerable, they could easily enough unilaterally leave Iraq and cast in their lot with Baathist Syria, leaving the four multi-ethnic cantons in the East to muddle through the nightmare that it will likely be to govern those provinces democratically.

The real prize in central Iraq is Baghdad, which prior to the U.S. led invasion was one of the more urbane, secular, and modern places in the Middle East. Without the oil wealth relative to its population of many of its neighbors, the people of Iraq had to develop a post-agrarian economy and a middle class. Under Saddam, Baghdad was a far cry from Kabul and Beruit in the 1960s, which were genuinely vibrant and relatively free intellectually, but compared to Saudi Arabia or Iran, for example, it was progressive. Baghdad wealth is the collection of educated and skilled people it holds. But, that value can't be realized until order returns and the city begins to function again. When the lights are on only a few hours a day, it is hard to run a 21st century computerized economy.

What Will Be Good Enough To Get A Deal?

The most committed insurgents may want a return to Saudi Arabian/Taliban style Islamic law, a true dictatorship of a Caliph, and a regime in which Sunnis are superior to Shiites and other ethnic minorities by law. But, I seriously doubt that this is the majority view of Sunnis, even now.

The Sunni man on the street might be quite happy with the less draconian formal recognition of Islam as the official state religion already found in the existing Afghan and Iraqi constitutions, a Caliph with some real political power, a share of Kirkut's oil wealth, citizenship in a nation that includes Baghdad and the ruins of Babylon (but doesn't leave him grossly outnumbered in the central government by Kurds and Shiites), and real political power as a result of being able to vote for representatives in a cantonal government where Sunnis have a politically meaningful share of the elected officials that makes most important policy decisions that impact him.

Those hoping for a more purely Sunni controlled regime and a more strict application of Islamic law could move West where an Anbar canton would look like that.

24 October 2006

The Pentagon Procurement Bubble

Sometimes the outside world has a hard time getting the ear of senior defense department officials, as Noah Shachtman who blogs for Defense Tech and writes for Popular Science on defense issues explains:

Often, the military-funded researchers -- and their managers -- that I meet seem only dimly aware that there are wars going on at all. They might pay some lip service to fighting the counterterror fight. But the money, and the research projects, seem only tangentially connected to that struggle. . . . when the country is losing two wars at once, it's time to get our priorities straight.

A commentor responds:

You never know what the next generation of war will be. In 2000, nobody knew that our wars would be vs insurgencies.

But, the commentator is simply wrong. We knew in 2000 that our military had insurgencies in its future. We have known for half a century that the United States military would be called upon to fight "small wars" and counterinsurgency actions. It has been called upon for peace keeping missions and to provide technical assistance to other nations in counterinsurgency roles all across the world. We fought and lost Vietnam and the Reagan response in its aftermath was to build a military designed to fight World War II, complete with a large compliment of blue sea warships, heavy tanks, and the like, but not a single unit designed from the ground up for counterinsurgency missions.

The military wasn't just not ready to fight the war in Iraq, it was designed to be ill equipped to fight that kind of war. And, in any case, once you are in two wars as it is, preparing for the next war is largely irrelevant. The nature of war is that if you don't perform well enough in the one you are in, you don't get to try again.

23 October 2006

Anti-Government Sentiment And The West

The joke geography map on display at Mapsco give the name "China" to Massachusetts in recognition of its history of political liberalism and imply that it strongly embraces state ownership of property. The Rocky Mountain West has long been viewed as a collection of Republican leaning red states, with one of the core issues being the perception that Republicans have favored smaller government.

Perhaps one reason for anti-government feeling in the West, is that there is so much more of it there.

Higher Education

For example, in Massachusetts, fewer college students attending public institutions than any other state in the United States. Every state with less than 59% of college students attending public colleges is in the Northeast (according to Fall 2004 statistics complied by the U.S. Department of Education and reprinted in The Chronicle of Higher Education's 2006-2007 Almanac edition).

Massachusetts 43%
Rhode Island 50%
New York State 55%
Pennsylvania 56%
New Hampshire 58%
Vermont 59%
Connecticut 64%

In contrast, higher education in the Rocky Mountain West is overwhelmingly a government affair. Public institutions make up a large percentage of college students in each of these states:

Wyoming 93%
Montana 90%
New Mexico 92%
Colorado 80%
Idaho 80%
Utah 75%
Arizona 65%

In Alaska, whose politics share much with that of the Rocky Mountain States in the Continental U.S., 96% of college students attend public institutions. In Texas, it is 87%.

Public Lands

Similarly, I have a map of Federal and Indian Lands in my office. The only significant parcel of federal land in Massachussetts is the Cap Cod National Seashore. In contrast, the vast majority of the land from the foothills of the Rocky Mountains to the Cascades and Sierra Nevadas, the United State's Great Inland basin, is owned by either the federal government or an Indian Reservation.

In Massaschussetts, 1.87% of the land is federally owed (by acre).

In the West, the numbers are much higher:

Nevada 84.48%
Utah 57.45%
Idaho 50.19%
Arizona 48.06%
New Mexico 41.77%
Wyoming 42.33%
Colorado 36.63%
Montana 29.92%

In all of these states, the percentage of land owned by the federal government is higher than the percentage of land in the District of Columbia, the nation's capitol, owned by the federal government 24.67%.


Most of the land that is privately owned was given for free to homesteaders, who acquired their water rights when water was free for the taking under a first in time, first in right rule, and little agricultural land in the state would still be economic to farm without crop subsidies, property tax breaks and disproprotionately high per pupil state funding of rural schools.


In the East, water falls from the sky in amounts great enough for everyone. In the West, the use of eminent domain to store and move water, although it scares us, is a matter of life or death. We have no choice other than to use the power of government to manage this scarce resource. Cities like Denver, Las Vegas and Phoenix would not be possible without government. Indeed, among our predecessors on this land, the ancient Anasazi, irrigation was the raison d'etre of government.


Toll roads, like the Pennsylvania Turnpike, are relatively common in the East. They are rare in the West. Denver, the part of the West most like the East Coast, is the only place in the Rocky Mountains that has them.

Bottom Line

The myth that the West was built on self-reliance and individualism is just that, a myth. The West was won with railroad subsidies, federally tax dollar supported troops providing security, and government handouts to new residents in the form of homestead grants and mining patents. The West, far more so than the East, has always been the home of big government, and so naturally, people in the West are more sensitive to it.

But, the West, with its federal oil and gas leases, its federal grazing permits, and its federally granted timber rights, is a place where the means of production are owned by the government, to a far greater extent than China/Massachusetts.

18 October 2006

The Secret To Real Change.

Change what people believe and legislation will follow.

The fight for women's sufferage was secured with majority support from men who could vote, something cynics who think political actors always vote to preserve their own political power would tell us was impossible.

No less a conservative than Ronald Reagan brought no fault divorce to California.

All but a handful of states across the nation, of all political stripes, have decriminalized adultery, cohabitation and consentual sodomy, long before the Lawrence decision in the U.S. Supreme Court.

Before he died Martin Luther King, Jr. was reluctant to raise the "social issue" because he thought it was a political threat to the larger civil rights movement. Before he left the Senate, Jesse Helms, who made his political career as a segregationist, was proclaiming the fundamental justice and rightness of interracial marriage.

Progressives used to favor alcohol prohibition. Most Christian churches used to cite the bible in support of slavery.

Attitudes about drunk driving and domestic violence have changed dramatically in my lifetime.

Last week was National Coming Out Day. And, coming out has been perhaps the most powerful means of changing public opinion in the entire gay rights movement, because the bravery of that act changes countless people's attitudes each time it happens.

Colorado has had an openly lesbian Speaker of the State House. Bit by bit attitudes change, and then it is just a matter of time.

For some people, the promised land doesn't come soon enough to be enjoyed. But, politics is something we do today, so the next generation can live in a better world.

Colorado State Senate Races Rated

Mile High Delphi, a blog run by a bipartisan quartet of contributors, including Blogicus Maximus, who was my conservative colleague when I blogged for Political State Report (who continues to blog there on ocassion), has released it lastest rankings of the eighteen state state races to be decided this year in Colorado today. While many political insiders have undertaken this exercise, Mile High Delphi is the only publicly available source of which I am aware which has make its rankings of state senate races public.

Half of the state senate's seats are open every two years (Betty Boyd in SD-21 is running for only a two year term, however, as she was appointed by the Democratic party vacancy committee when the seat held by Deanna Hanna was vacated). Eight of the seats before voters this year are currently held by Democrats, ten are currently held by Republicans.

They predict that the State Senate will go from a current 18D-17R seat split to a 19D-16R seat split after the election in the 35 seat body, leaving the Democrats in control. Republican leaders apparently agree as it is an open secret that the GOP money bags have largely abandoned the Governor's race and State Senate struggle in Colorado in an effort to maximize their chances of regaining control of the State House, so that they are not shut out of the legislative process.

The Delphinans have rated four races safe Republican, four leaning Republican, three races as toss ups, three races safe Democratic, and four as leaning Democratic. Democrats need only one of the three toss up races to win control of the chamber, if any surprises on the Democratic side are matched by surprises on the Republican side.

Their ratings are generally on target, although I would personally rank the race in SD-9 between Democrat Keely Marrs vs. Republican David Schultheis in the leaning Republican category, rather than the safe Republican slot this year. The Denver Post said this about the race in El Paso County:

Democrat Keely Marrs is a U.S. Army veteran whose background and understanding of water and transportation issues make her a better choice for this district than Republican David Schultheis, who obsessed on divisive social issues during his House service.

Many people will be breaking with habit by voting for Jay Fawcett rather than Doug Lamborn in Colorado Springs in the open 5th Congressional District race this year, which includes Senate District 9. Fawcett has polled remarkably well in the overwhelmingly Republican district. Fawcett Republicans may likewise push the button Marrs, whose race presents a very similar choice between a fighting Dem and an ultra-conservative with an abrasive personal style not interested in getting things done. Marrs, like any Democrat running for office in El Paso County, is still an underdog, but this race is still in play in my book.

Colorado is a fairly conservative state, but most unaffiliated voters who vote for Republicans in Colorado, even in Focus on the Family home Colorado Springs, do so for the anti-tax, pro-gun, tough on crime, pro-defense spending stances traditionally associated with the Republican party, not because they hate gays, not because they want to drown government in a bathtub, and not because they think that religion needs a larger role in public life. This is a very different group of people than the coalition who win races for Republicans in the South, where many Democrats are more conservative on social issues than most Colorado Republicans.

The Marrs race is in the same category as the race for the 7th State Senate District between Democrat Dana Barker and Republican Josh Penry, in which Barker received a remarkable endorsement from the Grand Junction Sentinel, the leading newspaper in the district, a race that the Delphinians rate as leans Republican.

If Bill Ritter's campaign for Governor, and Democrats John Salazar and Jay Fawcett in the 3rd and 5th Congressional Districts respectively, combat the usual sense of hopelessness that pervades Democrats in Republican strongholds, it isn't impossible that the general anti-GOP sentiment this year could push both underdog Democrats into office.

17 October 2006

Bush Signs Torture Bill

George W. Bush today signed the Military Commissions Act which was supported by all of the Republicans in Colorado's Congressional delegation, and Democrats Ken Salazar and John Salazar.

The bill eliminates recourse to the courts for torture and other violations of the Geneva Conventions, pardons U.S. government employees who violated the Geneva Conventions, ends all penalties for some violations of the Geneva Conventions, and suspends the writ of habeas corpus for non-citizens declared to be enemy combatants by the President. It changes none of the flawed procedures for determining if someone is an enemy combatant, and allows people so detained to be tried before military tribunals and sentenced to death based on hearsay and information obtained through torture after 9-11 and before 2006, on charges that have never previously been recognized as war crimes. The bill can only hurt the war on terrorism by undermining the moral authority of the United States and by emboldening people who hate freedom to act likewise.

No one expected that the President would fail to sign the bill, which he pushed hard to win. John Salazar now says he will fight to restore the elimination of habeas corpus which he voted for, and also says he hopes that the courts will overturn parts of the law he voted for. Ken Salazar's statements have been even less satisfactory.

When the history books look back to see how America could do evil things and call it legal, they can point at George W. Bush, Wayne Allard, Ken Salazar, John Salazar, Marilyn Musgrave, Joel Hefley, Tom Tancredo, and Bob Beauprez. Without their express assent to this regime of horrors and rollback of the constitution, which their constitutents urged them to reject in advance, it wouldn't have been possible.


Denver is enjoying its first snow of the season today.

Tax Shelter Patent Case Update

I checked in on the status of case of Wealth Transfer Group v. Rowe, a federal patent case in Connecticut in which the Plaintiff seeks to enforce a tax shelter patent involving putting a certain kind of stock options in a certain kind of trust, previously discussed on this blog.

Last week, the Court approved an amendment of the Answer in the case (the Complaint in the case was initially filed in January of 2006), in which Rowe asserts that Wealth Transfer Group knew about an article written by someone else two years before their patent application which described the tax shelter in question. If established, this would provide a basis to invalidate the patent in the case on the ordinary intellectual property law ground that the patent holder was not forthcoming in his application for a patent and was not the original inventor of the idea, without addressing the larger policy question of whether it is permissible to patent a tax shelter at all. Discovery in the case will continue until January 15, 2007.

Apparently, the article came up in the discovery process from the patent holder. If discovery shows that indeed the patent holder knew about the article, which production of the article in discovery would tend to imply, the case will probably be settled and dismissed without being considered by the judge at all. Even if the patent holder didn't know about the article, proof that the patent was not in fact a new discovery may be enough by itself to invalidate the patent, although this would make it much harder for Rowe to recover his attorneys fees in the case.

A solid factual defense is good news for Rowe (a former executive with Aetna). It is bad news for the public, as the unresolved legal issue posed by the case, i.e. the patentability of tax shelters, which has attracted nationwide attention, would go unresolved. Until the issue is resolved, tax planners, like myself, face a constant risk that we could infringe someone's patent with an innovative planning technique, unless we do a patent search first, which we won't, because it isn't cost effective and isn't likely to be discovered by the patent holder even if it is infringing.

16 October 2006

There Isn't A Voting Crisis In Denver

How many people will vote in the November 2006 election at the polls?

Answer: About 90,000, which is about 70% of the number who did so in 2004.

Why do I think so?

Turnout is always higher in Presidential election years. In 2004, 128,930 people voted at the polls on election day in Denver. In 2000, it was 111,907 people. This year, it will be less than that, because it is not a Presidential election year.

In 2002, the last state general election, about 89,462 people voted at the polls on election day. In 1998, it was 124,348, but that was at a time when far fewer people engaged in early or abssentee voting. If anything 90,000 is a high estimate.

How many Denver voters voted early or absentee in recent past elections?

In 2004 there were 66,190 absentee votes and 37,606 early votes cast.

In 2002 there were 53,533 absentee votes and 8,314 early votes cast.

In 2000 there were 66,314 absentee votes and 20,244 early votes cast.

In 1998 there were 23,243 absentee votes and 16,404 early votes cast.

How many Denver voters will vote absentee in the November 2006 elections?

At least 54,000 absentee ballots have already been requested. This is in line with figures from the 2002 election, and far more than in the 1998 election.

How many precincts were there in 2004 in Denver?

Answer: There were 420 precincts at about 283 locations.

How many vote centers are there in 2006 in Denver?

Answer: 55.

How many voting machines were there in 2004?

Answer: Denver had 1,100 voting machines before its recent purchase of 240 new ones from Sequoia.

How many voting machines will be used in 2006?

Answer: The Denver Election Commission has stated that it intends to deploy all of its voting machines on election day, November 7, due to the long ballot. This would presumably include both 1,100 old machines and 240 new machines for a total of 1,340 machines.

Will there be fewer voting machines in 2006 than there were in 2004?

Answer: No.

Will there be fewer voters in 2006 at the polls on election day than there were in 2004?

Answer: Yes.

How many votes were cast per voting machine in 2004?

Answer: 117.

How many votes per machine will have to be cast in 2006?

Answer: 67, about 57% of the number of voters per machine as in 2004.

How many ballot issues were there on the ballot in 2004?

Answer: 9, about 56% of the number of ballot issues in 2006.

How many ballot issues are there on the ballot in Denver in 2006?

Answer: 16.

Denver's Ballot Is Relatively Short

Denver voters have a shorter ballot than almost any other place in the state.

While every voter in the state votes in five statewide candidate races and a Congressional race (in Denver it is between the Democrat Diana DeGette and a Green Party candidate) and on 14 ballot issues, in Denver some voters will face only two more ballot issues and no other contested candidate races, while no one will face more than two other contested candidate races.

Unlike other Colorado counties, Denver holds its local elections in May. So, Denver voters don't have to agonize over races for county commissioner, county treasurer, county assessor, clerk and recorder, coroner, county surveyor or the like, as most Colorado voters do.

None of Denver's RTD districts have contested races.

Denver has no contested races for state school board or for its CU Regents district representative this year (although there is a statewide at large race for CU Regent at issue this year).

Only three of Denver's nine state house races are contested. While Denver voters are in several state senate districts, only one has a contested race this year.

Unlike many area voters, Denver voters don't face any school district tax or bond issues.

There are twenty-one judicial retention election questions on the ballot this year in Denver, but almost no one who hasn't made up their minds in advance, considers those decisions at length in the ballot box. Most people vote either yes for all, or no for all.

The only race in Denver where a write in candidate has declared is the Governor's race, where few people are likely to choose a write in candidate. So write in votes are unlikely to slow down voting.


There is nothing wrong with voting early or absentee. We also know that the Postal Service will deliver your ballot even if it doesn't have enough postage.

But, the much heralded crisis Denver is expected to experience in 2006 isn't going to happen. Everyone went nuts for Y2K and nothing bad happened then either. It is natural to be suspicious of new technologies, and the kinks aren't all worked out perfectly. But, there is no reason to suspect massive lines on election day that will deprive people of their right to vote.

If the system needs to handle 67 votes in a day, and 90% of the votes are cast in the high traffic first and last two hours of the election, the machines need to process only one voter every 4 minutes. While state law allows for up to 10 minutes per voter, historical precedent is that people don't actually take anything close to that long to vote. Most voters make up their minds before they get into the ballot booth, either before they come to the polls or while waiting in line. Actually pushing the buttons doesn't take long at all.

Your Divorce Is Not A Federal Case

An explanation of why a panopoly of legal theories to collaterally attack a state court domestic relations decision is set forth here. Many of the theories discussed apply more generally. This is really a short treatise on why you can't sue the government in certain situations and also can't sue people involved in the court process.

This type of lawsuit, brought without a lawyer, isn't that unusual. People unhappy with the system, who no longer trust lawyers, bring them with some frequency, usually to similar results.

Common Sense Prevails

I applaud the U.S. Court of Appeals for the 3rd Circuit for ruling, in accord with the 9th Circuit, 10th Circuit and 11th Circuit, for using a little common sense.

An appeal deadline in the 2005 Class Action Fairness Act, which was intended to establish a seven day deadline for filing an appeal, but instead, due to a typographical error, instead, by its terms established no deadline for filing an appeal but instead a seven day waiting period for filing an appeal. All four circuits have been bold enough to recognize that legislative intent is more important in a case like this one than slavish adherence to statutory text which contains a typo, even when the Congress has plainly said the opposite of what it meant.

No appellate court has made a contrary ruling to date.

Of course, it is inexcusable that the Congress has taken so long to fix an obvious and uncontroversial mistake in statutory drafting. Indeed, the immense sloth Congress shows in fixing even its obvious mistakes is one of the reasons we need courts to care about statutory intent, rather than the raw language of a statute standing alone.

The Iron Law of Oligopoly In Action

Markets naturally tend to form oligopolies (i.e. markets dominanted by a small number of firms), a tendency called the Iron Law of Oligopoly (aka Oligarchy).

The more common manifestation of this tendency is for a market with too many competitors to consolidate and shake out. For example, in the early days of the automobile industry, we saw dozens of independent automakers consolidate into the Big 3 which was stable for decades until in the 1960s and 1970s foreign automakers entered the U.S. market and upset the apple cart. The current rash of discussions about automobile company mergers can be seen as a natural consequence of the iron law of oligopoly in an era where the market for automobiles is now global, instead of national.

But, it works the other way too. When a market gets too consolidated, there is a natural tendency for competition to emerge. We see this most recently in the public accounting market. For years there were eight big accounting firms. Their numbers have now dwindled to the "Big Four" through a series of mishaps (Arthur Anderson was brought down by Enron), and mergers. But, now, a fifth big accounting firm is emerging as twenty-two regional accounting firms merge to form Baker Tilly USA, which strictly speaking is a "network" rather than a firm, but is positioning itself to serve as competition to the Big Four, and three more networks are on the way, returning us to a "Big Eight" era.

Three other networks of accounting firms are preparing to introduce their alternatives. Moores Rowland North America, the Leading Edge Alliance and Moore Stephens North America . . . . Those groups, with Baker Tilly, represent about two-thirds of the nation's top 100 accounting firms . . . Baker Tilly's total workforce of about 8,000 is far smaller than the staffs of the largest firms. Ernst & Young, for example, has 26,000 U.S. employees, and PriceWaterhouseCoopers has about 30,000. They each have around 140 affiliate offices around the world; Baker Tilly has 93.

Little Middle Ground

The latest round of network formation in the accounting industry may also reflect the bipolar distribution of firm size in the United States. Few medium sized businesses means little incentive to establish medium sized accounting firms.

U.S. law provides for a largely unregulated small business sector where business formation is subject to minimal securities regulation, businesses rarely have audited books, debt is primarily in the form of lending from commercial banks, there is no tax premium (as entities are operated as S corporations or LLCs or as C corporations that pay almost all profits as bonuses to ownrs), and is primarily composed of firms with ten or fewer families of owners, most of whom usually work in the business or are relatives of someone who does, occassionally with one or two "silent partners" who provide capital but don't manage the firm on a day to day basis.

U.S. law also provides for a highly regulated big business sector in which firms with hundreds or thousands of owners operate under the watchful eye of the SEC, stock markets, the financial press, bond rating agencies, institutional investors and large public accounting firms. Most pay a tax premium for doing so, in the form of the C corporation tax on profits.

There is a middle ground, but it is thinly populated. Going public carries with it largely indivisible compliance costs and tax costs, which are uncomfortably high for medium sized firms. Securities law exemptions permit medium sized groups of wealthy or high income sophisticated investors to invest in private companies, arrangements usually set up by venture capital firms with an eye towards making the medium sized business stage temporary. Alternately, businesses on the cusp of becoming medium sized that could have secured several dozen investors to finance the step, instead often seek to sell out to a larger company that will finance their expansion. Borders Books and Chipotle, for example, ultimately went this route to secure the financing needed to expand, and then, were ultimately spun off from the businesses (K-Mart and McDonalds respectively) that incumbated them.

The Narrow Range Of Participants In Which In Person Democracy Works

State corporation laws are actually largely tailored to medium sized businesses with dozens of shareholders, in which key decisions are actually made at an in person shareholder's meeting at which the vast majority of significant shareholders are present. But, very few corporations follow this model in practice. Generally, small corporations largely make decisions informally, while in public corporations, federal securities regulation is the dominant consideration in corporate managment regulation and businesses avoid the democratic process of shareholder control suggested by state corporation laws by offering shareholders a Soviet style ballot.

Real democratic management of organizations at in person meetings is largely restricted to medium sized non-profit organizations, like churches, political parties and unions, and in New England towns, where the practice is growing less popular with time, particularly in urbanized areas. Small groups tend to operate largely by consensus and fall apart if they don't, unless required by law to exist, while groups of a thousand or more are usually impractical to run on a face to face basis, except for rare, highly scripted and often mostly symbolic group meetings.

Even the United States House of Representatives and the United Kingdom's House of Commons, two of the largest public assemblies operating on a face to face basis, operate only by dint of strong committee and party structures, and rigid control of the organization's agenda by a small group (the Rules Committee in the House of Repesentatives and leadership in the House of Commons). In both bodies, floor debate plays only a small part in the decision making process, with noses usually counted before votes are taken on the floor and persuasion largely taking place in back offices.

The development of direct democracy in Greece (and in Iceland, another place with a long democratic history) probably owes a great deal to the accident that its number of citizens was neither too small, nor too large, to maintain a functioning face to face democratic forum.

15 October 2006

12 October 2006

Voting Restrictions For Felons

Colorado law allows felons to vote after they have completed their sentences, including parole. It also allows even people who are incarcerated or on parole for misdemeanors to vote.

Legislatures in 16 states have loosened voting restrictions on felons over the last decade . . . . Iowa, Nebraska and New Mexico have repealed their lifetime bans on voting by people who have been convicted of felonies, and several other states made it easier for freed prisoners or those on probation to vote. . . . The recent changes have restored voting rights to more than 600,000 individuals, the report said. But because the country’s prison population has continued to rise, a record number of Americans, 5.3 million, are still denied the vote because of criminal records[.] . . .

Only two states, Maine and Vermont, have no restrictions, even permitting inmates to vote. At the other extreme, three states, Florida, Kentucky and Virginia, still have lifetime bans on voting by felons. Nine others bar selected groups of offenders for life.

New York, Connecticut and New Jersey, like most states, do not allow current inmates or parolees to vote.

In a ballot initiative in Rhode Island this November, voters will decide whether to restore voting rights to prisoners on parole or probation, who far outnumber inmates. Early polls show public support for the measure. . . .

In 2004, one in eight black men were unable to vote because of a felony conviction . . . . Felony convictions have left one in four black men barred from voting in five states: Alabama, Florida, Mississippi, Virginia and Wyoming . . . .

In Texas in 1997, Gov. George W. Bush signed a law eliminating a two-year wait before prisoners ending their parole could vote.

From the New York Times.

Colorado's Bad Policy

I favor allowing people who are on parole to vote.

Felons in prison and on parole are the only U.S. citizens, eighteen years of age or older, who are residents of the jurisdiction where they are registered, who are not allowed to vote. Moreover, once someone becomes a U.S. citizen eighteen years of age or older, the never cease to have that status (for all practical purposes) until their death. In contrast, for example, mentally ill people who are confined in an asylum have hte right to vote.

Excluding people who are actually incarcerated from voting reduces administrative compliance burdens on election officials (who would otherwise have to send absentee ballots to, or set up polling locations in state prisons), and deprives only people who aren't materially impacted by the affairs of their community, during periods when the main focus of their existence is being punished, from voting.

Allowing parolees to vote, in contrast, helps to reintegrate them into the community, which is the purpose of parole, and it is less administratively burdensome than excluding them. It requires an effort on the part of a voting administrative official to learn the parole status of every voter, every time that vote wants to vote. We shouldn't devote scarce resources in the electoral system to preventing people from voting.

By The Numbers

As of September of 2006, there were 5,801 people living in Colorado who were on parole. The percentage of inmates in Colorado prisons who are foreign born is 6.6%, and a signficant portion of them are either naturalized U.S. citizens, or are deported upon completion of their term of incarceration, so a smaller percentage of non-citizens would be expected amongst parolees. In other words, the vast majority of parolees are eligible to vote, but for their parole status.

In that same month there were 2,373,874 active voter registration in the state, and another 560,876 inactive voter registrations. In 2004, there were about 3,422,000 people of voting age in Colorado, about 433,000 of whom were foreign born. About 130,000 of the foreign born persons were U.S. citizens, and about something on the order of 10-20% of foreign person non-citizens are under age 18. Thus, about 75% of eligible voters in Colorado have active voter registrations.

Thus, even if every parolee registered to vote, the impact would be only about 0.2% of the total number of registered voters. In practice, parolees would probably registered to vote less frequently than members of the general population, so the impact would likely be closer to 0.1% of the pool of registered voters.

Considerable attention to this issue has focused on the impact these laws have on African-American men who are not currently incarcerated and would otherwise be eligible to vote. Assuming that the demographics of the parole population are the same as the demographics of the prison population, there were 516 African-American men on parole in September of 2006 in Colorado. Based on the census data in the Statistical Abstract of the United States, there were roughly 69,000 African-American men otherwise eligible to vote, who were not incarcerated in Colorado. Thus, about 0.7% of non-incarcerated African-American men are disenfranchised by Colorado's parole law. About 3.5% of all African-American men in Colorado, including those incarcerated, are disenfranchised by Colorado law. In neighboring Wyoming, the figure is 25%.

The Law

The change would be easy to bring about. It would require changing only one word in the phrase "or while serving a sentence of parole" to "except while serving a sentence of parole" in Section 1-2-103(4), Colorado Revised Statutes.

It would also be truer to the spirit of Colorado Constitution Article VII, Section 10 (adopted in 1876) which provides that:

No person while confined in any public prison shall be entitled to vote; but every such person who was a qualified elector prior to such imprisonment, and who is released therefrom by virtue of a pardon, or by virtue of having served out his full term of imprisonment, shall without further action, be invested with all the rights of ctizenship, except as othrwise provided in this constitution.

Current law recently survived a court challenge premised on this provision of the Colorado Constitution, but that doesn't make the existing law a good idea.

Libertarians Change Horses

From CATO via Kos at Daily Kos:

We find 9 to 13 percent libertarians in the Gallup surveys, 14 percent in the Pew Research Center Typology Survey, and 13 percent in the American National Election Studies . . . . Libertarians preferred George W. Bush over Al Gore by 72 to 20 percent, but Bush's margin dropped in 2004 to 59-38 over John Kerry. Congressional voting showed a similar swing from 2002 to 2004. Libertarians apparently became disillusioned with Republican overspending, social intolerance, civil liberties infringements, and the floundering war in Iraq.

Immigrations is another important issue where Democrats are probably a better fit than Republicans with Libertarian ideology.

Libertarians and the Religious Right are uncomfortable bedfellows, but the Religous Right is becoming a larger and larger share of the GOP party machine's ranks.

Democrats favor both more taxation and more government spending than Libertarians would like, but Republicans favor similar levels of spending, financed with debt which is simply a form of deferred taxation. Democrats have also grown more nuanced on the issue of government regulation of business, focusing on true externalities and fraud, than at sometimes in the past. Democrats are also coming around to recognize, as libertarians long have felt, that existing zoning laws have serious negative impacts, and particularly in the West, Democrats have given less emphasis to gun control, a libertarian hot button issue.

Manure Isn't Full of Shit.

Beckerich, Luxembourg supplies about 85% of its energy needs, exclusive of transportation, from alternative energy sources, primarily manure.

I Support Jazz

In commercial radio, you pay as you go, by listening to ads. Public radio stations ask you for money. They aren't nearly so commercial free as they used to be, "underwriting" is not very understated these days. But, the advertising is certainly less crass on public radio than it is on commercial radio and the programming quality is excellent compared to most commercial radio. Without public radio, one of the more important original news sources, National Public Radio, would be no more, and neither jazz (beyond Muzak style "smooth jazz"), or classic programming would be available on the air in Denver.

This stations need listener donations to survive and only about 1% of listeners actually join. But, if you value the media, you should contribute, at least your fair share. Just because radio listeners to public radio can't be sued for unjust enrichment in court, doesn't meant that regular listeners don't have a moral obligation to pay their fair share. Reciprocity is policy in business and in life. Paying it forward often reaps indirect rewards.

Lately, I've been spending more and more time listening to 89.3 FM, KUVO, the local public radio jazz station, which is truer to the public radio model than Colorado Public Radio which has (not necessarily unwisely) grown more commercial in its underwriting, spread to two stations (the news is AM, the music is FM), and become more professional and less community oriented. It is my driving around town station and plays a much better variety of jazz than the swing and big band oriented station I grew up with in Oxford, Ohio.

Jazz is great music. Despite, indeed perhaps because, it is America's home grown music style, it has broad appeal. It is popular in Europe, Latin America and Asia. What other radio station routinely plays music in French, Spanish and Portugese, as well as English? It is popular with African-Americans, whites, Asians-Americans, Hispanics and lots of people who don't fit neatly into census imposed categories.

It is music for adults that is kid safe. While jazz music talks about love, it is far more articulate about the subject than rock, which seems forever stuck in the teenaged dating scene, or hip hop, which is so intensely focused on sex that it ignores love in its more subtle forms. While jazz music acknowledges hard times and despair, it does not insist on constantly wallowing in misery like country music. While marches and country music call for war, jazz constantly seeks the groove of peace. Jazz is the music of every day life seen through the eyes of people who recognize that life is beautiful. It is the music of the cafe, hotel bars full of people who travel and work for a living, and martini bars full of people who've been at work who want more than a swill.

Classical music is deeply rooted in the religous tradition and brings with it the seriousness of traditional churches, where the clergy have to remind you that it is sometimes O.K. to smile. It is never interrupted by the audience. Jazz isn't inherently secular -- the gospel tradition slips in sometimes -- but its religion is personal and immediate, and the audience reacts when it is moved to do so.

Anyway, this morning I joined KUVO. I encourage you to join the public radio station you listen to most this fundraising season as well. It is your moral obligation, it is your insurance policy that a worthwhile part of our great city (or yours) remains, and it will even buy you a copule seconds of fame, if you allow your name to be read over the air.

11 October 2006

An Open Letter In Reply To John Salazar

Colorado Congressman John Salazar sent out a letter, via e-mail, to me (and I presume others) yesterday regarding his vote on the Military Commissions Act. He voted for it. I said in the wake of that vote:

John Salazar has disgraced himself, shamed our country, and tarnished his political party, by voting for this bill.

What I said then is still true. This is my open letter to John Salazar:

Dear John:

You faced the biggest moral decision of your life when you voted on the Military Commissions Act and you blew it.

Some of the most evil people alive today have received amnesty from Congress as a result of your vote (Section 8 of the Act). Americans who commit war crimes continue to enjoy impunity as a result of your decision. Hundreds or thousands of people in the wrong place at the wrong time will suffer because of your decision, and hundreds or thousands of people who have already suffered will be denied any recourse because of his vote (Section 5 and Section 6 of the Act).

Even more worrisome is that you have failed to learn the lesson that is any part of legislation is troubling, that you need to vote against it, particularly when that troubling legislation comes from the Bush Administration.

You write:

I too am troubled by some provision of the Act. The Act authorizes the President to more restrictively interpret the Geneva Conventions. . . . I also find the Act's provision limiting the ability of alien detainees to access the federal courts through writs of habeas corpus to be troubling. . . . This is a difficult issue that I believe will ultimately have to be sorted out by the Supreme Court. In the meantime I will fight so that prisoners may petition the courts under habeas corpus.

If this were a podcast you would hear me screaming with outrage right about now.

Let me put your words into plain English for you: "more restrictively intepret the Geneva Conventions" means "intentionally inflict mental and physical pain upon real human beings in ways that destroy their lives."

And, why did you vote for this bill when, less than two weeks later, you are telling me that you "will fight" to repeal one of its central provisions. Simply passing the buck to the courts is despicable. Why carry water for the administration on this? Is the anti-habeas corpus lobby in Colorado's 3rd Congressional District really all that strong?

If you are troubled by anything in a bill, there is a simple answer: vote no. This bill was not an emergency, except to people facing well founded charges of having violating the Geneva Conventions, or having unlawfully detained people. Why should you go to bat for them?

What was the rush? Did this bill really need to be zipped through Congress so the the President could have provisions like this one in the bill that he would never be able to get again after the 2006 election?

Only a dozen or two detainees out of 14,000 face military tribunal trials. The military tribunals are a side show. Once someone has been detained indefinitely, as an enemy combatant, any punishment short of the death penalty is irrelevant. It is like pressing burglary charges against someone already serving life in prison for murder. And, there should be no rush to execute the very high level detainees who might actually know something relevant to the war on terrorism or have symbolic value to those who hate America as martyrs.

You note:

The Act amends the War Crimes Act so that only certian, severe violations of Common Aticle 3 are subject to criminal penalty (previously, the War Crimes Act states that all violations were pounishment).

This is correct. Many actions previously subject to criminal prosecution as war crimes are no longer punishable criminally at all. You voted to decriminalize all war crimes not specifically identified in the bill.

There might have been a justification for limiting criminal sanctions to a term of years, perhaps ten, rather than the death penalty as a maximum sentence under existing law, for less severe violations of the War Crimes Act. But, there is no execuse for repealing all criminal sanctions for any war crime.

Likewise you emphasize that "it is a violation to engage in conduct inconsistent with the standards of the Detainee Treatment Act of 2005 (McCain Amendment)." Yet, when all criminal sanctions for some war crimes, and all civil remedies for violation of those rights have been removed, and even prosecutions for serious war crimes require the approval of an administration that has argued strenuously that it has a unilateral right to torture people with techniques like mock executions in the form of waterboarding, you can't seriously believe that this has any meaning at all. Your vote for this bill has left the door open for these absues to continue. A right without a remedy is no right at all.

Also, while you claim that "the act bars the use of any evidence obtained by torture.", this isn't true. The Act actually says at Section 3: "A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted" subject to similar limitations to those applied to any evidence (does probative value outweight prejudice).

This is irrational. The reason to exclude evidence obtained through coercion is that it is inherently unreliable to base death sentences on it. It isn't about punishing or not punishing the person who obtained the statement -- it is about using inherently unreliable and disreputatable evidence to execute people.

You say that you support H.R. 3003, to establish an "Independent Commission on the Investigation of Detainee Abuses." This is dilly dallying as the ship sinks. We know that abuses have occurred and are widespread. We know ways to stop it. And, the bill you voted shut those avenues down.

Some of the damage you have done by voting for the Military Commissions Act is irrevocable, but the very least you can do is to support a bill that:

(1) Recriminalizes all war crimes in violation of the Geneva Conventions crimes.
(2) Reinstates fully the right of habeas corpus.
(3) Establish a clear civil remedy permitting both injunctive and monetary relief comparable to that for violations of the U.S. Constitution against those who violate the Geneva Conventions, something you admit the the McCain Amendment was supposed to make illegal anyway.
(4) Ban evidence obtained through coercion in military tribunals.
(5) Prohibit the President from detaining people who are legally present in the United States or territory under the exclusive control of the United States, regardless of citizenship, when the courts of the United States are open and operating, from being detained as enemy combatants.
(6) Remove offenses such as conspiracy, which have never been considered war crimes under international law, from the list of offenses subject to prosecution in military tribunals.
(7) Expressly vest determination of what conduct constitutes torture under U.S. law in the courts, not in a President who has repeatedly show a willingness to disregard the law and has claimed in signing statements that he is not bound by the law.

You voted for a law that has aided and abetted the most abominable acts to be committed in our name. You have a personal responsibility, as a result, to do everything within your power to make it right.


Andrew Oh-Willeke