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1901  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: May 27, 2011, 02:03:18 PM
I got this in my inbox today.  Some of you might be interested. 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1825543


What is Originalism? The Evolution of Contemporary Originalist Theory

Lawrence B. Solum
University of Illinois College of Law


April 28, 2011



Abstract:     
Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused – with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice.

The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one. On one interpretation, living constitutionalism and originalism are (mostly) compatible: the constitution lives inside the “construction zone,” the boundaries of which are marked by the original meaning of the text. On another interpretation, living constitutionalism is incompatible with originalism: living constitutional doctrine and practices can override even original meaning of the text, even when that meaning is clear.
1902  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Hamilton, Federalist 78-- the Judiciary on: May 27, 2011, 01:44:58 PM
"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." --Alexander Hamilton, Federalist No. 78, 1788


The reason for Hamilton's argument is important: the judiciary has neither the purse of Congress nor the sword of the president. 
1903  DBMA Martial Arts Forum / Martial Arts Topics / Re: June 18-19 Guro Crafty in Memphis, TN on: May 27, 2011, 08:38:51 AM
I am really looking forward to this!

Dog Terry

True.  True. 
1904  DBMA Martial Arts Forum / Martial Arts Topics / Re: DBMA Training Camp August 12-14 on: May 26, 2011, 06:38:08 PM
Tell me more, tell me more.  My first hurdle has been cleared. 
1905  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Israel, and its neighbors on: May 26, 2011, 04:09:21 PM
Woof, Guro... This is the movie I told you about elsewhere.  I post here for others to discuss, if they so desire.

http://littletownofbethlehem.org/
1906  Politics, Religion, Science, Culture and Humanities / Politics & Religion / federal response to disaster on: May 26, 2011, 03:00:40 PM
http://www.fema.gov/about/history.shtm

Some high points:

The Federal Emergency Management Agency coordinates the federal government's role in preparing for, preventing, mitigating the effects of, responding to, and recovering from all domestic disasters, whether natural or man-made, including acts of terror. FEMA can trace its beginnings to the Congressional Act of 1803.

The 1960s and early 1970s brought massive disasters requiring major federal response and recovery operations by the Federal Disaster Assistance Administration, established within the Department of Housing and Urban Development (HUD). Hurricane Carla struck in 1962, Hurricane Betsy in 1965, Hurricane Camille in 1969 and Hurricane Agnes in 1972. The Alaskan Earthquake hit in 1964 and the San Fernando Earthquake rocked Southern California in 1971. These events served to focus attention on the issue of natural disasters and brought about increased legislation. In 1968, the National Flood Insurance Act offered new flood protection to homeowners, and in 1974 the Disaster Relief Act firmly established the process of Presidential disaster declarations.

And, http://161.203.16.4/t2pbat8/143524.pdf

But, see http://www.lexisnexis.com/hottopics/lnacademic/? which is somewhat supportive of you guys, though it does note that federal support began pretty early.  "Federal involvement in emergency relief began soon after the country's founding.... In 1793, Congress approved a special appropriations bill to send financial aid to east coast cities burdened by an influx of thousands of refugees from Santo Domingo."



1907  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Politics on: May 25, 2011, 10:14:02 PM
I am glad to know that you are supportive of protecting American lives in all situations.  You'll forgive me if I don't see federal aid to storm ravaged areas as "pork." 

"Wait, are we really concerned about saving a little money as crews are searching rubble for survivors and bodies? (Well, yes, we should always be. Not doing so has got us into this fiscal crisis, more of the same is a real bad idea.)"  So, looking for the bodies and survivors of 9/11, or Katrina, or the floods of 1993, or any other disaster is the reason we are in a financial crisis.  It must be those activities. 

1908  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Politics on: May 25, 2011, 07:59:44 PM
I linked an article that condemned Cantor's stance on using federal funds for direct aid to American people who have been subjected to a natural disaster.  If you have no problem with using federal funds for responding to that disaster, why the hell did you react like you did?
1909  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Cantor screws the people of Missouri on: May 25, 2011, 07:35:50 PM

I know, the magical money tree never runs out and anyone who suggests otherwise is a horrible, horrible person.

Yes, that is exactly what I said.  And what I've always said.  I named my kid "Magic Money Tree." 
1910  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Cantor screws the people of Missouri on: May 25, 2011, 05:31:06 PM
http://blogs.pitch.com/plog/2011/05/eric_cantor_joplin_tornado.php   angry angry angry
1911  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 25, 2011, 08:47:07 AM
This Court is too liberal, and the King decision proves that.  It must be that there are liberal activist justices like Alito. 
1912  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 24, 2011, 11:12:52 PM
Those cases, if memory serves, all deal with persons not homes, except for the one with the search warrant at the wrong address.  I believe Guro's point is that there is no search warrant.  Also, there is an assumption of heighten protection in the home. 
1913  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 24, 2011, 08:37:58 AM

Utahdefenders? Not only was that the lamest bit on the topic, they sound like a superhero group from South Park.  grin

Agreed on both counts.  And I love the South Park comparison! 
1914  DBMA Martial Arts Forum / Martial Arts Topics / Re: Prayer and Daily Expression of Gratitude on: May 24, 2011, 05:55:06 AM
Good luck to you and yours, DougMacG. 
1915  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 23, 2011, 09:31:14 PM
Some interesting analysis on the King opinion:

http://reason.com/blog/2011/05/23/the-supreme-courts-advice-abou

http://www.scotusblog.com/?p=119933

http://volokh.com/2011/05/19/common-misreadings-of-kentucky-v-king-and-the-difference-between-exigent-circumstances-and-police-created-exigencies/

http://www.cato-at-liberty.org/kentucky-v-king/

http://www.utahdefenders.com/kentucky-v-king-good-for-utah-police-bad-for-our-liberties/
1916  DBMA Martial Arts Forum / Martial Arts Topics / Re: Prayer and Daily Expression of Gratitude on: May 23, 2011, 07:00:22 PM
Please keep the people of Joplin, MO in your prayers.  Or thoughts.  Or...

It looks really, really bad and the news seems to be getting worse. 

http://www.nytimes.com/2011/05/24/us/24tornado.html?pagewanted=1&_r=1 
 
 
1917  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 23, 2011, 01:33:44 PM
"If you are a citizen, and using force against a LEO, the odds of this turning out well for you is slim and none."

With this I completely agree.  And court decisions that gut the 4th amendment protections offered in the Bill of Rights, a series of amendments made becuase of the fear of an over reaching government, don't help this. 
1918  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 23, 2011, 07:01:07 AM
I am certainly willing to note that.  I must, I confess, plead ignorance to his notorious side before being edified by GM. 
1919  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 23, 2011, 05:19:02 AM
GM, you suggested one way that "a reasonable person" could "determine if an officer's attempt to arrest was legal or illegal."  Moreover, your point a few days ago about the ignorance of the average man about who is VP, and what is in the Constitution, etc. is true up to a point.  There are many, many who are far less ignorant about the law than the average.  So, perhaps it is reasonable to expect that some people know what the law is.  Or perhaps, it is reasonable to expect that everyone should become more educated about the Constitution and the laws of their state.

Can I safely say that you believe in a living Constitution, since you seem to think that we can't possibly know when entry is illegal before we go to a court of law?  Is it true that the 4th Amendment is just a guide, but given that there have been changes made to police techniques and with new technologies, we can disregard the original intent of the Framers and/or the 700 years of precedent (including the common law tradition that is the basis of our legal system)?  Will you be voting for President Obama's reelection?   

How in the heat of the moment are you going to determine if the entry by the officers is legal or illegal? in that moment, how are you going to calibrate your use of force for those circumstances?

If one ever needs to determine LE status, 9-1-1 is the place to start, see what dispatch says.

1920  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 22, 2011, 09:17:56 PM
I wish you wouldn't put words in my mouth.  I never said that there was some kind of carte blanche right to off police officers, or anyone else.  Good grief.  In fact, if you look at a few posts back, you will see this included there too:

John Bad Elk v. United States

"If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest."


1921  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 22, 2011, 09:05:53 PM
Why wouldn't an American police officer accused of misconduct not be given the due process of law? 

1922  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 22, 2011, 08:23:06 PM
Just because someone is wrong about some things doesn't make him wrong about everything. 
1923  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Mitch Daniels isn't runnning on: May 22, 2011, 11:42:44 AM
http://www.politico.com/news/stories/0511/55424.html
1924  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 22, 2011, 05:09:47 AM
I wear a black robe, at least ocasionally.  I am excited that I get to play a role in making these types of decisions.   cool

I think that you give too much credit to the USSC (or perhaps rely too much) assuming that is the court you meant when you stated that "even if the officer acts in good faith and in compliance with dept. policy and state law doesn't mean those actions will ultimately be ruled lawful by the court."  Given that the USSC currently hears about .01% of the cases that are appealled to it, and not all of them relate to police actions, the odds aren't all that good that a particular police action will be reviewed by the highest court.  

The basis for the Fourth Amendment, which has its basis in English Common Law, as does most of American law:
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!" William Pitt

As for a list of cases, here you go:


John Bad Elk v. United States, 177 U.S. 529 (1900):
Held, that the court clearly erred in charging that the policemen had the right to arrest the plaintiff in error and to use such force as was necessary to accomplish the arrest, and that the plaintiff in error had no right to resist it.

At common law, if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if, in the course of that resistance, the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter.

"If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest."

United States v. Di Re, 332 U.S. 581 (1948): "One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases."

Miller v. United States, 357 U.S. 301 (1958): Held: petitioner could not lawfully be arrested in his home by officers breaking in without first giving him notice of their authority and purpose...

PAYTON V. NEW YORK, 445 U. S. 573 (1980): Held: The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. Pp. 445 U. S. 583-603.


And here is some commentary on the Indiana Supreme Court decision.

http://www.lewrockwell.com/blog/lewrw/archives/88027.html
An interesting line, and one that speaks to your line of thinking, in discussing the Indiana case with a Michigan case: "In the interests of brevity, these rulings should be consolidated under the name “Rapist Doctrine,” in recognition of the fact that are pseudo-scholarly versions of the advice once urged upon women enduring sexual assault: Don’t resist — it will only make things worse."

http://www.libertyflorida.org/?p=563

Even the home schoolers are concerned: http://www.hslda.org/hs/state/in/201105180.asp


And, some commentary on the right to resist unlawful arrest/entry in general:

http://cad.sagepub.com/content/46/4/472.short ("attacks on the common law right are based on a misunderstanding of the original justifications for the right and that there remains a great need for the right particularly as new police tactics increase the probability of arbitrary assertions of authority."


http://www.markmccoy.com/self-defense.html: This site also has many other cases you can look at if you wish.










1925  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 21, 2011, 12:58:12 PM
You, me, any other interested observer.

Until Terry v. Ohio was decided, was it possible to say with any assurance the legitimacy of Det. McFadden's stop and frisk of John Terry?

I just don't understand the way that you obfuscate the issues at hand, GM.  The question is the rights of people to resist illegal entry into their home.  I seriously think that sometimes you don't read carefully.  Or do you just make [stuff] up?  Or do you just keep going and going like the bunny with nowhere to go? 
1926  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 20, 2011, 03:56:00 PM
Who is "we"?
1927  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: May 20, 2011, 12:47:53 PM
I thought you had decided that this horse was dead. 
1928  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 20, 2011, 12:45:36 PM
The article in question has to do with illegal searches, not what a private citizen "deems" to be an illegal search.  And at this point I would also like to note Guro's response above.
1929  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 20, 2011, 04:29:24 AM
Yeah, hopefully dispatch has made some determinations to that effect. When you catch a call like that, you often have very limited amounts of infomation while you run code to the location. Thus is the reality of police work.

Can you give me a scenario where you have a case of illegal entry by law enforcement and how self defense would provide an effective resolution to that?

Hmmm, well you (plural) are gutsy to do that job.  That isn't much information to work on.  And please don't think I am trying to be disrespectful to the LEOs.  Not a chance.  You do good work, and I am honored to be friends with many.

I'd rather not try to come up with a hypothetical scenario.  I do know that any other situation that I can think of at this hour, whether or not I am able have an "effective resolution," I am able to legally act in self defense.  And that is what bothers me enough to have posted the original link. 
1930  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 19, 2011, 07:06:59 PM
I only have the information you gave me, but based on that information: yes.

What I don't know is, among other things: who reported her (i.e., was it a p.o.'d ex to get back at her; was it someone with a history of calling "wolf" to the local PD, etc.); what was the age of the child (young depends in part on context); etc.

Reminder: the article I posted that led to this line of questioning specifically that the Indiana court decision "effectively means that officers may enter any residence without warrant, probable cause or permission of the owner."  It seems to me that you DID have probable cause. 

Again, the starting point is illegal entry, GM.  So, I am led to believe that you find no problems with police, who are government agents, illegally entering one's residence.  So much for the Bill of Rights, I guess. 
1931  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 19, 2011, 06:29:31 PM
Was it an illegal entry?  That has been my focus the whole time.


"Under what other conditions do you think it is acceptable to limit the natural right of self defense?"
 
I can think of a few I went through first hand. One was responding to a call where a woman that was reported to have been drinking and ingesting chemicals and was reported to be brandishing a firearm with a young child in the home with her. It wasn't my jurisdiction, but I was closest to the scene and requested by the Sheriff's Dept. to respond to the call with the above information relayed to me through my dispatch. I arrived at the residence, knocked at the door and announced my presence. No response. Deciding there were exigent circumstances, I made entry into the house. I located a female party unconscious on the floor in a child's room. The child was in a crib, unharmed. A medium frame revolver was visible on a shelf in the room, the adult female didn't awaken when I cuffed her, secured the revolver and awaited the arrival of the responding deputy.

If that female subject had been awake, did she have the natural right of self defense against a warrantless entry by a tribal police officer into her home?
1932  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 19, 2011, 04:54:06 AM
I am not often advised that I should read more case law.  I agree that there are disincentives in place to reign in officers acting in bad faith.  And taking away a natural right of self defense is taking away one of those reasons for police officers from acting in exactly that manner.  

Under what other conditions do you think it is acceptable to limit the natural right of self defense?  

I think if' you read the case law, you'll find that sometimes it's unclear if a warrantless entry will be ruled to be legal until it goes before the court who'll judge it on the totality of the circumstances. Many times, officers must make decision in a compressed time frame that are later contemplated at the leisure of the court. There are many disincentives to discourage officers from acting in bad faith in these scenarios.

http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/march_2011/copy_of_perspective

Although courts have long recognized the existence of an exigent circumstance exception to the Fourth Amendment’s warrant requirement, the Supreme Court’s decisions in Brigham City and Fisher provide much-needed guidance to officers who routinely confront situations, such as those present in these two cases. Reliance on an objective reasonableness standard allows for scrutiny based on the facts and circumstances confronting law enforcement at the time, as opposed to guesswork regarding the officers’ intentions and consideration of information learned after the fact. The legal standard set forth by the Court in these cases enables officers to make onthe- spot decisions as to whether they should enter a home or other dwelling to resolve an emergency situation. Because the government has the burden of justifying warrantless searches and seizures occurring under this exception, officers need to fully articulate the specific facts and circumstances known to them at the time they acted. This is essential because the courts use an examination of the totality of the circumstances to determine whether officers had reasonable grounds to act.
1933  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 18, 2011, 02:31:11 PM
The concern is with those indidividuals who think they know what is illegal and don't. In the heat of the moment isn't the time to try to adjudicate such things, is it?

Don't trained LEOs know when a search/entry is illegal?  If so, why are they acting in an irresponsible manner? 
1934  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: May 18, 2011, 01:02:50 PM
DougMacG, I am not exactly sure what you are asking me.  Having looked at the HCP thread, I can certainly see why people would question Pelosi's role in the passage of the law.  Are you asking me about the equal protection clause?  Its applicabilty to individuals?  States?  Companies?  Or if you have to pay taxes?

(From Health Care Policy thread)

Crafty: "This seems to me to be a very pertinent and troubling question."

Doug: "...given the equal protection clause of the 14th amendment, why isn't a waiver for one - automatically a waiver for all?

The Equal Protection Clause... "no state shall ... deny to any person within its jurisdiction  the equal protection of the laws"... As written it applied only to state governments, but it has since been interpreted to apply to the Federal Government of the United States as well.
-----
I would like a waiver from the 16th amendment (federal power to tax income) if waivers are available and equal protection is subordinated.

BD?


1935  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 18, 2011, 12:54:42 PM
"An appeal to the FBI ot IA doesn't stop illegal actions froming taking place to begin with. "

Reasonable, rational law enforcement officers tend to try to perform their duties in such a way as to avoid being the subject of civil and criminal liability.

In that case, reasonable, rational LEOs shouldn't be all that concerned about individuals who react to illegal entries.  They won't happen.  Right?
1936  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 18, 2011, 12:52:45 PM
BD,

I was responding to Crafty's post, although I cannot vouch for the professionalism (or lack thereof) of dispatch or the local level law enforcement in any given area.

Thank you for the clarification.
1937  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 18, 2011, 05:59:46 AM
GM, I don't understand the point of your most recent three posts.  The first two relate to the execution of search warrants, which is lawful entry.  The third one is interesting, but of the entire string cite of cases only one them is binding on Indiana (the state from which this current line of discussion stems) and a single, different case is applicable in California (Guro's state of residence, and thus the likely source of his query). 
1938  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Privacy, Big Brother (State and Corporate) & the 4th Amendment on: May 17, 2011, 08:36:49 AM
Hot pursuit is a lawful entry.  Imminent destruction of evidence is a lawful entry.  So using those as examples to allow unlawful entry is a little weird. 

I have taught my children never to assume that a person with a badge at the door is a police officer and to call the police if someone knocks on the door when I am not home.  This is common practice, because safety experts realized a long time ago that people can pose as police officers to enter the home. 

Why would a court not realize the same thing?  Why would someone allow anyone to unlawfully enter a home?  An appeal to the FBI ot IA doesn't stop illegal actions froming taking place to begin with. 

I am a little surprised by your stance here, to be honest. 
1939  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Indiana court strips citizens of right to resist unlawful police entry on: May 17, 2011, 05:44:39 AM

GM,
     I suspect this might lead to another 4 day discussion, but the 4th amendment exists for a reason.  I can't for the life of me think of a good reason to take away a right to protect oneself against an unlawful entry, no matter who is doing the entering. 
1940  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: May 16, 2011, 07:07:37 PM
Yeah, I know.  I really am sorry about that.   

Honestly, I am on the fence about this.  So, I will give you this: I don't think that every POW (or whatever the term en vogue is today) needs to be taken to court. 

Man, you sure know how to wait until the fire has faded..... wink

Should KSM have been mirandized and allowed to lawyer up?
1941  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Torture May Have Slowed Hunt For Bin Laden, Not Hastened It on: May 16, 2011, 06:49:48 PM
I am sorry that it was necessary that I step away at the same time the forum was burning with desire for my opinion.  I am very sorry to have left you hanging, GM! 

What is that you want to hear?  Please be specific. 

I will volunteer this, to begin with: am I pleased that OBL is dead?  Sure.  Am I especially happy with the means?  No, not so much.  You are right that it seems that President Obama overstepped the bounds of war.  My issue, and this is true regardless of party affiliation, is that I believe that presidents power grab.  As one who is concerned with constitutional limits yourself, GM, I am sure you understand this. 

I should point out that not everyone thinks that "enhanced interrogation" reaped benefits by leading to bin Laden.


Torture May Have Slowed Hunt For Bin Laden, Not Hastened It



Torture apologists are reaching precisely the wrong conclusion from the back-story of the hunt for Osama bin Laden, say experienced interrogators and intelligence professionals.

Defenders of the Bush administration’s interrogation policies have claimed vindication from reports that bin Laden was tracked down in small part due to information received from brutalized detainees some six to eight years ago.

But that sequence of events -- even if true -- doesn’t demonstrate the effectiveness of torture, these experts say. Rather, it indicates bin Laden could have been caught much earlier had those detainees been interrogated properly.

"I think that without a doubt, torture and enhanced interrogation techniques slowed down the hunt for bin Laden," said an Air Force interrogator who goes by the pseudonym Matthew Alexander and located Abu Musab al-Zarqawi, the leader of al Qaeda in Iraq, in 2006.

It now appears likely that several detainees had information about a key al Qaeda courier -- information that might have led authorities directly to bin Laden years ago. But subjected to physical and psychological brutality, "they gave us the bare minimum amount of information they could get away with to get the pain to stop, or to mislead us," Alexander told The Huffington Post.

"We know that they didn’t give us everything, because they didn’t provide the real name, or the location, or somebody else who would know that information," he said.

In a 2006 study by the National Defense Intelligence College, trained interrogators found that traditional, rapport-based interviewing approaches are extremely effective with even the most hardened detainees, whereas coercion consistently builds resistance and resentment.

"Had we handled some of these sources from the beginning, I would like to think that there’s a good chance that we would have gotten this information or other information," said Steven Kleinman, a longtime military intelligence officer who has extensively researched, practiced and taught interrogation techniques.

"By making a detainee less likely to provide information, and making the information he does provide harder to evaluate, they hindered what we needed to accomplish," said Glenn L. Carle, a retired CIA officer who oversaw the interrogation of a high-level detainee in 2002.

But the discovery and killing of bin Laden was enough for defenders of the Bush administration to declare that their policies had been vindicated.

Liz Cheney, daughter of the former vice president, quickly issued a statement declaring that she was "grateful to the men and women of America’s intelligence services who, through their interrogation of high-value detainees, developed the information that apparently led us to bin Laden."

John Yoo, the lead author of the "Torture Memos," wrote in the Wall Street Journal that bin Laden's death "vindicates the Bush administration, whose intelligence architecture marked the path to bin Laden's door."

Former Bush secretary of defense Donald Rumsfeld declared that "the information that came from those individuals was critically important."

The Obama White House pushed back against that conclusion this week.

"The bottom line is this: If we had some kind of smoking-gun intelligence from waterboarding in 2003, we would have taken out Osama bin Laden in 2003," Tommy Vietor, spokesman for the National Security Council, told The New York Times.




Chronological details of the hunt for bin Laden remain murky, but piecing together various statements from administration and intelligence officials, it appears the first step may have been the CIA learning the nickname of an al Qaeda courier -- Abu Ahmed al-Kuwaiti -- from several detainees picked up after the Sept. 11, 2001, terrorist attacks.

Then, in 2003, Khalid Sheikh Mohammed (KSM), the 9/11 mastermind, was captured, beaten, slammed into walls, shackled in stress positions and made to feel like he was drowning 183 times in a month. When asked about al-Kuwaiti, however, KSM denied that the he had anything to do with al Qaeda.

In 2004, officials detained a man named Hassan Ghul and brought him to one of the CIA’s black sites, where he identified al-Kuwaiti as a key courier.

A third detainee, Abu Faraj al-Libi, was arrested in 2005 and under CIA interrogation apparently denied knowing al-Kuwaiti at all.

Once the courier's real name was established -- about four years ago, and by other means -- intelligence analysts stayed on the lookout for him. After he was picked up on a monitored phone call last year, he ultimately led authorities to bin Laden.

The link between the Bush-era interrogation regime and bin Laden’s killing, then, appears tenuous -- especially since two of the three detainees in question apparently provided deceptive information about the courier even after being interrogated under durress.

"It simply strains credulity to suggest that a piece of information that may or may not have been gathered eight years ago somehow directly led to a successful mission on Sunday. That's just not the case," said White House Press Secretary Jay Carney.

But for Alexander, Kleinman and others, the key takeaway is not just that the torture didn't work, but that it was actually counterproductive.

"The question is: What else did KSM have?" Alexander asked. And he’s pretty sure he knows the answer: KSM knew the courier’s real name, "or he knew who else knew his real name, or he knew how to find him -- and he didn’t give any of that information," Alexander said.

Alexander’s book, "Kill or Capture," chronicles how the non-coercive interrogation of a dedicated al Qaeda member led to Zarqawi’s capture.

"I’m 100 percent confident that a good interrogator would have gotten additional leads" from KSM, Alexander said.

"Interrogation is all about getting access to someone’s uncorrupted memory," explained Kleinman, who as an Air Force reserve colonel in Iraq in 2003 famously tried, but failed, to stop the rampant, systemic abuse of detainees there. "And you can’t get access to someone’s uncorrupted memory by applying psychological, physical or emotional force."

Quite to the contrary, coercion is known to harden resistance. "It makes an individual hate you and find any way in their mind to fight back," and it inhibits their recall, Kleinman said. Far preferable, he said, is a "more thoughtful, culturally-enlightened, science-based approach."

"I never saw enhanced interrogation techniques work in Iraq; I never saw even harsh techniques work in Iraq," Alexander said. "In every case I saw them slow us down, and they were always counterproductive to trying to get people to cooperate."

Carle, who was not a trained interrogator, said he came to recognize that interrogation was a lot like something he did know how to do: manage intelligence assets in the field.

"Perverse and imbalanced as the relationship is between interrogator and detainee, it’s nonetheless a human relationship, and building upon that, manipulating the person, dealing straight with the person, simply coming to understand the person and vice versa, one can move forward," he told reporters on a conference call Thursday.

Carle’s upcoming book, "The Interrogator," chronicles his growing doubts about his orders from his superiors.

"The methods that I was urged to embrace, I found first-hand -- putting aside the moral and legal issues, which we really cannot put aside -- from a practical and a tactical and a strategic sense and a moral and legal one, the methods are counterproductive," he said.

"They do not work," he added. "They cause retrograde motion from what you’re seeking to accomplish. They increase resentment, not cooperation. They increase the difficulty in assessing what information you do hear is valid. They increase the likelihood that you will be given disinformation and have opposition from the person that you’re interrogating, across the board."

Carle said the detainee he worked with regressed when coerced. "All it did was increase resentment and misery," he said.




Larry Wilkerson, chief of staff under former secretary of state Colin Powell, said, "I’d be naive if I said it never worked," referring to enhanced interrogation techniques.

"Of course, occasionally it works, Wilkerson said. "But most of the time, what torture is useful for is confessions. It’s not good for getting actionable intelligence."

Experts agree that torture is particularly good at one thing: eliciting false confessions.

Bush-era interrogation techniques, were modeled after methods used by Chinese Communists to extract confessions from captured U.S. servicemen that they could then use for propaganda during the Korean War.

"Somehow our government decided that ... these were effective means of obtaining information," Carle said. "Nothing could be further from the truth."

At a hearing in Guantanamo, several years after being waterboarded, KSM described how he would lie -- specifically about bin Laden’s whereabouts -- just to make the torture stop. "I make up stories," Mohammed said. "Where is he? I don't know. Then, he torture me," KSM said of an interrogator. "Then I said, 'Yes, he is in this area.'"

There are many other reasons to be skeptical of the argument that torture can lead to actionable intelligence, and specifically that enhanced interrogation led investigators to bin Laden.

Many of the positive accomplishments once cited in defense of enhanced interrogation have since been debunked.

And though its defenders are now trying to talk up the significance of the earlier intelligence, around the time of al-Libi’s interrogation, the CIA was not stepping up the hunt for bin Laden. Instead, it was closing down the unit that had been dedicated to hunting bin Laden and his top lieutenants.

This new scenario hardly supports a defense of torture on the grounds that it’s appropriate in "ticking time bomb" scenarios, Alexander said. "Show me an interrogator who says that eight years is a good result."

The interrogation experts also noted the significant role Yoo, Rumsfeld and former Vice President Cheney each played in opening the door to controversial interrogation practices.

Wilkerson has long argued that there is ample evidence showing that "the Office of the Vice President bears responsibility for creating an environment conducive to the acts of torture and murder committed by U.S. forces in the war on terror."

Yoo wrote several memos that explicitly sanctioned measures that many have deemed constitute torture, and the memo from Rumsfeld authorizing the use of stress positions, hooding and dogs was widely seen as a sign to the troops that the "gloves could come off."

"These guys are trying to save their reputations, for one thing," Alexander said. "They have, from the beginning, been trying to prevent an investigation into war crimes."

"They don’t want to talk about the long term consequences that cost the lives of Americans," Alexander added. The way the U.S. treated its prisoners "was al-Qaeda’s number-one recruiting tool and brought in thousands of foreign fighters who killed American soldiers," Alexander said. "And who want to live with that on their conscience?"

From Bush himself on down, the defenders of his interrogation regime have long insisted that it never amounted to torture. But waterboarding, the single most controversial aspect of Bush's interrogation regime, has been an archetypal form of torture dating back to the Spanish Inquisition. It involves strapping someone to a board and simulating drowning them. The U.S. government has historically considered it a war crime.

One can quibble over the proper term for some of the other tactics employed with official sanction, including forced nudity, isolation, bombardment with noise and light, deprivation of food, forced standing, repeated beatings, applications of cold water, the use of dogs, slamming prisoners into walls, shackling them in stress positions and keeping them awake for as long as 180 hours. But they comprise violations of human dignity, as codified by the United Nations -- and championed by the U.S. government -- ever since World War II.

Many have argued that whether torture works or not is irrelevant -- that it is flatly illegal, immoral, and contrary to core American principles -- and that even if it were effective, it would still be anathema.

But that torture is unparalleled in its ability to obtain intelligence is the central argument of its defenders. To concede that torture doesn’t work -- as Alexander, Kleinman and Carle, among others, say -- would be to forfeit the whole game. It would be admitting that cruelty was both the means and the end.

And so the debate goes on.

1942  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Indiana court strips citizens of right to resist unlawful police entry on: May 16, 2011, 06:29:21 PM
http://www.rawstory.com/rs/2011/05/16/indiana-court-strips-citizens-of-right-to-resist-unlawful-police-entry/
1943  DBMA Martial Arts Forum / Martial Arts Topics / Knockout game on: April 22, 2011, 06:08:10 AM
I think this is a good place this article.  It deals with the potential that teens are increasingly, and randomly attacking, for fun... without provocation or identifiable reason.

 http://www.stltoday.com/news/local/crime-and-courts/article_a234c676-46b7-5c66-a193-dd09fc49d8b8.html

 
1944  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: April 18, 2011, 01:29:19 PM
As there are hospitals, doctors, nurses, medics that are an element of war, does war count as a "medical procedure"?

When there are hospitals, doctors and nurses that are coequal branches of government, like the federal judiciary is, let me know GM.  STRAW MAN!!!!!!!!!!!!!!!!!!!
1945  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: 2012 Presidential on: April 18, 2011, 11:31:55 AM
Is it true that Trump has given lots more money to Democrats than Republicans and that he has donated lots of money to Chuck Schumer?

Here is a list of his political contributions.  Without looking at all 7 pages and doing the addition for which party he has contributed more to, he has contributed to Tom Daschle, Harry Reid, Chris Dodd, and the Democratic Senatorial Campaign Committee.

http://www.opensecrets.org/indivs/search.php?name=trump%2C+donald&state=&zip=&employ=&cand=&all=Y&sort=N&capcode=rjjbr&submit=Submit

(click on "all cycles", and it will give you from 1992)
1946  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: April 18, 2011, 10:31:18 AM
In using my Black's Law Dictionary (6th. ed.), which again is considered definitive by most legal professionals), couldn't but notice that perhaps the website definition of procedure was good, but perhaps incomplete.  I'll leave out the portions of the full definition which are similar to that which you posted, but I will include the following: "The judicial process for enforcing rights and duties recognized by substantive law and for justly administering redress for infraction of them."

This addition is important, because duty, as defined by Black's, reads, in part, as follows: "A human action which is exactly conformable to the laws which require us to obey them.  Legal or moral obligation."

So, what this means is that the judicial process, whether or not it is a "legal process", can be used for enforcing infractions against those who fail to to do their duty... which includes legally and morally defined obligations. 

Which means that it matters not if al Qaeda has signed a treaty, it matters that the United States has.  It also means that the Supreme Court, and other courts, do in fact have a place in war. 




http://www.nolo.com/dictionary/procedure-term.html

procedure

1) A method or act that furthers a legal process. Procedures include filing complaints, serving documents, setting hearings, and conducting trials. 2) The established rule or series of steps that governs a civil lawsuit or criminal prosecution. (See also: civil procedure, criminal procedure)
1947  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: April 18, 2011, 10:11:35 AM
This is an interesting defintion, because try as I might, I can't find this defintion anywhere other than wikipedia.  You'll forgive me, since "legal procedure" is in neither version of Black's Law Dictionary (which is considered definitive) that I have access to (6th ed. on my desk as I write and 8th edition which is online), I think that perhaps this phrase, nor definition, is not, well, legal. 

No mention of bombs, guns or bayonets.

http://uk.ask.com/wiki/Legal_procedure

Legal procedure

Although different legal processes aim to resolve many kinds of legal disputes, the legal procedures share some common features. All legal procedure, for example, is concerned with due process. Absent very special conditions, a court can not impose a penalty - civil or criminal - against an individual who has not received notice of a lawsuit being brought against them, or who has not received a fair opportunity to present evidence for themselves.

The standardization for the means by which cases are brought, parties are informed, evidence is presented, and facts are determined is intended to maximize the fairness of any proceeding. Nevertheless, strict procedural rules have certain drawbacks. For example, they impose specific time limitations upon the parties that may either hasten or (more frequently) slow down the pace of proceedings. Furthermore, a party who is unfamiliar with procedural rules may run afoul of guidelines that have nothing to do with the merits of the case, and yet the failure to follow these guidelines may severely damage the party's chances. Procedural systems are constantly torn between arguments that judges should have greater discretion in order to avoid the rigidity of the rules, and arguments that judges should have less discretion in order to avoid an outcome based more on the personal preferences of the judge than on the law or the facts.

Legal procedure, in a larger sense, is also designed to effect the best distribution of judicial resources. For example, in most courts of general jurisdiction in the United States, criminal cases are given priority over civil cases, because criminal defendants stand to lose their freedom, and should therefore be accorded the first opportunity to have their case heard.

1948  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: April 17, 2011, 04:53:53 AM
GM, you continue to cloud the issue with points beyond your original claim.  Focus. 

You claimed that war was not a legal procedure.  It is.  I have established that, and you've even agreed that the declaration of war is as such.  Now, with your help (and thank you for pointing this source out), since President Lincoln, the commander in chief, established the legal boundaries through a process: "Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office", we have established that there are indeed legal bounds and definitions by which soldiers, even waaaaaay back in the Civil War, are to follow. 

As to your question (although I can't tell what question you are asking, because you keep changing it), you know that our soldiers cannot act out of spite, or without cause, or outside of legal defined actions: http://www.dailymail.co.uk/news/worldnews/article-1165848/U-S-soldier-convicted-murder-following-execution-style-killing-Iraqi-detainees.html.  Or does this not satisify you?  Would you have our soldiers raping and looting?  We are not barbarian raiders, although since you seem to think that there are no limits (or is it that there should be no limits?), perhaps you would like to return to the "good old days"? 



1949  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: April 16, 2011, 09:50:06 PM
The declaration of war may be a legal procedure, but the fighting of the war is not. Or is a USMC sniper shooting enemy troops that have not fired at him murdering innocent victims?

If fighting the war is not a legal procedure then explain Rules of Engagement, the Uniform Military Code of Justice, the legality (or not) of the draft, the constitutional questions that arose from fighting the Barbary pirates (or the Mexican American War; or the Civil War; or the..........................................................).  Legal questions have abounded during US wars from the time of the founding, based on questions of constitutionality and legality.

And the USMC sniper is bound by law.  And you know that.
1950  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: April 16, 2011, 09:42:07 PM
Are you moving the goal posts because you cannot defend your position or do you not understand my point?

That's what I've been asking you GM.  You can't simply admit that what you said was wrong. 
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