Lunatics, Once Objects of Derision, Now Govern.

Our souls soles are now free to soar, but we must love and understand all critters great and small.

Many years ago, in a less enlightened age, some people entertained themselves by visiting lunatic asylums in Washington, D.C. and making fun of the inmates. It was a cruel and inhumane exercise. Things have changed dramatically for the better as we have evolved and lunatics are no longer confined. As a modest form of reparation, they govern us -- not from padded cells but from well appointed offices where they are accorded the great respect which, as the previously oppressed, is their due. Turn about, as even small children know, is fair play.

This article should greatly encourage all who recognize that even lunatics now need love and understanding.

SCOTLAND YARD has bowed to Islamic sensitivities and accepted that Muslims are entitled to throw shoes in ritual protest — which could have the unintended consequence of politicians or the police being hit.

* * *

The concession has already been taken up enthusiastically by Muslim demonstrators, who pelted Downing Street with shoes in protest at the Israeli bombing of Gaza last year.

Dozens of ski-boots and clogs were also hurled at the US consulate in Edinburgh in a related protest, in which three policemen sustained minor injuries.

Shoes, and soles in particular, are considered unclean. Although the point has not been clarified by the authorities, it is likely that pork chops may now be hurled peacefully in response.

Unintended consequences? Indisputably. In any civilized nation, there must be a presumption that people who hurl shoes and other projectiles in the direction of other people make heroic efforts to avoid hitting them, just as suicide bombers merely wish to express their political views and don't intend to harm others. Unintended adverse consequences certainly are not properly to be anticipated. That is true in many other contexts. For example, I myself from time stick my fingers deep into an operating food processor to unclog a mess and routinely experience the unintended consequences of having them mutilated. Boy, have I been surprised, as I well should be; every time I do it, I experience the same surprise at the consequences, which I certainly do not intend. To expect unintended bad things to happen whenever one tries to prepare a meal would be paranoid, and there is no rational basis for assuming irrational behavior of any type from an otherwise tame food processor.

Confederate soldiers during the U.S. Civil War (known to reprobates as the War of Northern Aggression), such as General Robert E. Lee, were clearly terrorists, just as it is clearly true that Islamic terrorism and Jihad don't exist. In this glorious age of enlightenment, all things must be considered within their proper and socially acceptable frames of reference. Otherwise, some really nice folks may be offended. Unfortunately, some seem not to have understood the memo and continue to view al-Qaeda as an enemy! Even President Obama, probably in an eminently forgettable Biden Moment, recently expressed fears that "nuclear terrorism poses a graver danger than the risk of war between nuclear nations." He specifically referenced al-Qaeda in this context, as did his Secretary of State, Ms. Clinton. On the other hand, perhaps the leaders of al-Qaeda and other so called terrorist/extremist groups have secretly converted to Methodism, in which case it is right and proper to refer to them as terrorists. If true, that would go far to explain current U.S. policy in the national security arena. In any event, feeble attempts such as this to revise history may slow but will not stop progress.

A few of the less perceptive ape-descended carbon based life forms here on Gaia may unfortunately disagree. However, I am confident that we can all cherish and adopt these great new principles befitting our post-modern age if only we reach an appropriate state of post-modern enlightenment.

When the new age of enlightenment dawns, and dawn in all glory it will, I fervently hope to see not only adherents of the Religion of Peace but all others evolve to new and higher plains from which we will all be permitted to hurl projectiles at each other in the peaceful exercise of free speech. All, and not just the favored few, must be given maximum latitude in acting out their heart-felt beliefs and animosities.

And this brings me to the real thrust of today's homily. There are many Neanderthals who want the United States and other imperialist international powers to force Iran to abandon the development of peaceful nuclear weapons with which to make a clear statement of her opinion of Israel, a highly reactionary and illegitimate state. Demonstrating the correctness of Iran's view, Israeli Prime Minister Binyamin Netanyahu recently demonized these peaceful efforts as an attempt to create "weapons of mass destruction!" He also manifested his continuing paranoia by again referencing the holocaust, a non-event. His drooling hatred was not hidden:

“The historical failure of the free world in facing the Nazi beast was in not confronting it when it could still be stopped," Netanyahu said, "today we witness the fire of the old-new hate, the hate of the Jews being spread by the regimes and organizations of radical Islam, spearheaded by Iran and its cohorts."

These fading and senile Neanderthals, and indeed the failed and failing nations they dominate, refuse to recognize that Iran has legitimate grievances against the rest of the world. She has suffered bravely through years of wicked oppression, and it is only right for her now to be allowed all of the freedom of expression she wishes.

Some are strangely prejudiced against the legitimate government of Iran and want her to just shut up. They are misguided and have been misled by the wicked imperialist efforts of the United States and her captive fascist media to foment rebellion so that imperialist countries can steal her patrimony. Iran rightly echoes the persuasive argument, "No Oil for Blood!" Despite the most oppressive efforts of the rulers of the world and their lackeys, the book is closing on the oppression of the Religion of Peace. It is high time for their soles to soar!

Court Orders FCC to Cease Exceeding its Statutory Authority

The decision may upset some big plans the FCC has for us

On April 6, 2010, a three judge panel of the Federal Court of Appeals for the District of Columbia Circuit held unanimously in Comcast Corporation v. FCC that the Federal Communications Commission (FCC) had over-stepped its statutory authority by attempting to regulate aspects of cable internet service not contemplated by statute. It has been suggested by an article in Cnet News that

Tuesday's decision could doom one of the signature initiatives of FCC Chairman Julius Genachowski, a Democrat. Last October, Genachowski announced plans to begin drafting a formal set of Net neutrality rules--even though Congress has not given the agency permission to begin.

It has also been suggested here that

The decision also has serious implications for the massive national broadband plan released by the FCC last month. The FCC needs clear authority to regulate broadband in order to push ahead with some its key recommendations, including a proposal to expand broadband by tapping the federal fund that subsidizes telephone service in poor and rural communities.

Probably so. Others have speculated that there may be additional impacts on communications, which is of course possible. On April 8^th the FCC nevertheless announced that it plans to move ahead on its broadband initiative "soon."

The FCC laid out its 2010 "broadband action agenda" without indicating how it will proceed in light of the court ruling. But the agency says it will ensure it has the legal authority it needs for its sweeping plan to increase broadband usage and Internet speeds.

Be that as it may, the Comcast decision itself will probably have little direct immediate impact on most of us any time soon, although it has some neat procedural twists and turns of the sort likely to tickle the fancies of attorneys. It also portends trouble for other currently hyperactive administrative agencies

A bit of background on the communications industry may be in order. As an attorney in private practice in Washington, D.C. from 1972 till 1996, I represented television stations across the country in their battles with the cable industry from the early 1970's until the Congress in 1984 essentially deregulated cable and left it up to local governments to regulate the rates charged cable customers. The full blown notion of net neutrality had not emerged while I was practicing law, so this article merely addresses some of the history of FCC regulation. Others are in a better position to speak of net neutrality and its potential impact on nearly all of us. Here is one such analysis, which I think makes well the point that regulation has its good and bad points; it is difficult to have one without the other.

When the industry was in its infancy, before I was born, there were radio stations which broadcast AM signals (FM came later) capable of being received at no charge by anyone with an appropriate receiver. Such radio stations were not common carriers, and had very different obligations than those imposed on common carriers, telephone companies, which made their services available by physical wires to customers who paid for the service. The various telephone companies were interconnected, also generally by physical wires, making long distance calls possible. The Communications Act of 1934 created the FCC, which was intended to deal with these quite different beasts.

Over the years, technology changed dramatically and the Communications Act was amended from time to time to take into account some but not all of the important changes. However, in some cases the technology changed too rapidly for statutory changes to keep pace. Consequently, the FCC tried to use its existing regulatory power to fill the void. Sometimes it did so wisely and sometimes not.

Although the first cable television systems were started in the 1940's, the industry advanced slowly until the 1970's, principally at first in places where over-the-air reception of television stations was difficult or impossible. Community Antenna Television Service (CATV) operators used more sophisticated and expensive receiving equipment than was feasible for individual households and delivered otherwise unavailable or marginal TV signals by wire to their subscribers. Although subscribers paid the CATV systems for this service, the CATV systems did not pay television stations for the "piracy" of their programming. As CATV became widespread, many broadcasters began to consider CATV an enemy and sought to have it regulated by the FCC. The catch phrase of the period was

it has long been known to thieves that if you can get something for nothing and then sell it, you can make a neat profit.

This may have been somewhat unfair, since CATV operators had their own costs of operation; however, it also made sense because when a CATV operator imported unlimited distant TV stations instead of or in addition to local stations, and/or substituted its own commercials for those broadcast by local TV stations, the audiences of the local stations were fragmented. Advertisers did not get the expected value for their money and the revenues of local stations dropped. Since the FCC had a statutory responsibility to foster local broadcasting, and since broadcast stations were required to broadcast some generally non-remunerative programming ("public affairs," which with the demise of the Fairness Doctrine morphed into profitable talk radio and its television counterpart) and otherwise to operate in the public interest, it was feared that the FCC could not meet its statutory responsibility and that public interest would thereby suffer. The FCC ultimately agreed and adopted "must carry" rules, "network non-duplication" rules and rules limiting the numbers of distant stations CATV operators could make available and the conditions under which they could do so.

In United States v. Southwestern Cable Co., 392 U.S. 157 (1968), as relied upon in many subsequent cases, the Supreme Court held that despite the absence of any specific statutory authority to regulate the CATV industry, the regulations in question were within the ancillary authority of the FCC because the FCC (a) had statutory authority to regulate television stations and (b) had demonstrated that the limited regulations imposed on the CATV industry were necessary in furtherance of its obligation to keep broadcast stations healthy so that it could regulate them "in the public interest." The FCC was required to meet both parts (a) and (b) of the test. As time marched on, CATV mutated into its present form, making substantial non-broadcast content available to subscribers, often at premium prices. The CATV industry was largely deregulated by the Congress in 1984, leaving rate regulation to be undertaken locally.

Under the Communications Act, the Court of Appeals for the D.C. Circuit has exclusive jurisdiction to entertain appeals from most FCC decisions as well as the decisions of most other federal administrative agencies. The process obviates intermediate proceedings at the Federal District Court level and decisions by the D.C. Circuit are appealed to the Supreme Court. Nearly always, acceptance of such appeals is discretionary with the Supreme Court through the certiorari process. Very few petitions for grant of a writ of certiorari are granted.

In Comcast Corporation v. FCC, decided on April 6, 2010, the D.C. Circuit held that the FCC had gone too far in attempting to regulate the cable internet services provided by Comcast. It rejected the FCC's argument that statements of Congressional policy as expressed in the Communications Act and elsewhere, in and of themselves, granted far reaching regulatory authority. That

policy statements alone cannot provide the basis for the Commission’s exercise of ancillary authority derives from the “axiomatic” principle that “administrative agencies may [act] only pursuant to authority delegated to them by Congress.” . . . Policy statements are just that—statements of policy. They are not delegations of regulatory authority. To be sure, statements of congressional policy can help delineate the contours of statutory authority. . . . When exercising its Title II authority to set “just and reasonable” rates for phone service, . . . , or its Title III authority to grant broadcasting licenses in the “public convenience, interest, or necessity,” . . . , or its Title VI authority to prohibit “unfair methods of competition” by cable operators that limit consumer access to certain types of television programming, . . . , the Commission must bear in mind section 1’s objective of “Nation-wide . . . wire and radio communication service . . . at reasonable charges,”. . . . In all three examples, section 1’s policy goal undoubtedly illuminates the scope of the “authority delegated to [the Commission] by Congress,” . . . — though it is Titles II, III, and VI that do the delegating. So too with respect to the Commission’s section 4(i) ancillary authority. Although policy statements may illuminate that authority, it is Title II, III, or VI to which the authority must ultimately be ancillary. (internal citations omitted)

As the court observed, the FCC did not argue

that its regulation of an activity over which it concededly has no express statutory authority (here Comcast’s Internet management practices) is necessary to further its regulation of activities over which it does have express statutory authority (here, for example, Comcast’s management of its Title VI cable services). (emphasis added)

Rather, the FCC argued that it had all the authority it needed by virtue of Congressional expressions of policy. The D.C. Circuit disagreed, stating that the FCC's position was not only inconsistent with judicial precedent but that "if accepted it would virtually free the Commission from its congressional tether," opening the door for the FCC to do pretty much anything that pleased it.

The final paragraph of the decision should give the FCC and other now hyperactive administrative agencies some pause:

It is true that “Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.” . . . . It is also true that “[t]he Internet is such a technology,” indeed, “arguably the most important innovation in communications in a generation,” Yet notwithstanding the “difficult regulatory problem of rapid technological change” posed by the communications industry, “the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority.” Because the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility,” we grant the petition for review and vacate the Order.

The caution against impermissible agency intrusions to deal with rapid technological advances which the Congress has not got around to regulating should apply with even greater emphasis to impermissible agency intrusions into areas into which the Congress has been pressed by the current administration to intrude but has thus far declined the invitation.

Translated Text of Honduras Accord

This is a Google translation of the Honduras Accord, signed on 30 October 2009

PREAMBLE

We Honduran citizens, men and women convinced of the need to strengthen the rule of law under our Constitution and laws of our Republic, deepen democracy and ensure a climate of peace and tranquility to our people, we had a strong and frank political dialogue process to find a peaceful and negotiated solution to the crisis our country has been plunged in recent months.

As a result of this dialogue that sanity has prevailed, tolerance and the patriotic spirit of all its participants, we drafted a political settlement that will restore the peaceful coexistence of citizens and ensure a climate conducive to democratic governance in our country. This agreement, we are sure, will mark the path to peace, reconciliation and democracy, urgent demands of Honduran society.

The conclusion of this agreement demonstrates once again that the Hondurans are able to successfully practice dialogue and thank him and through it, achieve the lofty goals that society demands and the nation requires of us.

Under this, we have agreed to the following agreements.

1 .- ON THE GOVERNMENT OF NATIONAL UNITY AND RECONCILIATION
To achieve reconciliation and strengthen democracy under a Government of Unity and National Reconciliation, composed of representatives of various political parties and social organizations, recognized for their ability, honesty, competence and willingness to talk, who will occupy the various secretaries and deputy secretaries, and other state agencies in accordance with article 246 and following of the Constitution of the Republic of Honduras.

Given that prior to the June 28, the executive branch had sent to Congress the draft National General Budget of Revenue and Expenditures, in accordance with the provisions of Article 205, paragraph 32 of the Constitution of the Republic of Honduras, the government of national unity and reconciliation, respect and operate on the basis of the general budget, recently approved by Congress for fiscal year 2009.

2 - ON THE WAIVER to convene a National Constituent Assembly Amend the Constitution AS unreformable.

Fundamental. To achieve reconciliation and strengthen democracy, we reiterate our respect for the Constitution and laws of our country, refraining from making appeals to the convocation of a Constituent National Assembly, directly or indirectly and also giving to promote or support any referendum with the aim of reforming the constitution to allow presidential reelection, modify the form of government or contravene any of the articles of our Constitution irrevocable.

In particular, we will not make public statements or exert any influence inconsistent with Articles 5, 239; 373 and 373 of the Constitution of the Republic of Honduras, and strongly reject any expression contrary to the spirit of such items and special law regulates the referendum and the plebiscite.

3 - ON THE GENERAL ELECTION AND THE TRANSFER OF GOVERNMENT

To achieve reconciliation and strengthen democracy, we reiterate that, in accordance with Articles 44 and 51 of the Constitution of the Republic of Honduras, the vote is universal, compulsory, equal, direct, free and secret, and for the Supreme Electoral Tribunal with full autonomy and independence, control and implement all related to the acts and election processes.

Also make an appeal to the Honduran people to participate peacefully in the next general election and avoid all demonstrations to oppose the election or its outcome, or promoting the insurrection, unlawful conduct, civil disobedience or other acts that could produce violent confrontations or breaches of the law.

In order to demonstrate the transparency and legitimacy of the electoral process, we urge the Supreme Electoral Tribunal which authorizes and certifies the presence of international missions from now until the declaration of the result of general elections and the hand over to take place in accordance with Article 237 of the Constitution of the Republic, 27 January 2010.

4 - ON THE ARMED FORCES AND NATIONAL POLICE

To achieve reconciliation and strengthen democracy, we reaffirm our willingness to abide in all respects Article 272 of the Constitution of the Republic of Honduras, in accordance with which the Armed Forces, are available to the Supreme Electoral Tribunal from a month before the general elections, in order to guarantee the free exercise of suffrage, custody, transparent and monitoring of election materials and other aspects of process safety. We reaffirm the professional, apolitical, obedient and not deliberating the Honduran Armed Forces. Similarly, we agree that the national police must adhere strictly to what is prescribed special legislation.

5 - THE EXECUTIVE

To achieve reconciliation and strengthening democracy in the spirit of the themes of the proposed San Jose Accord, both negotiating committees have decided, respectfully, that the National Congress as an institutional expression of popular sovereignty, using its powers, in consultation with relevant bodies to consider as the Supreme Court and in accordance with law, resolve as appropriate in respect of "to roll back the ownership of the executive branch to its status prior to 28 June until the end of the current governmental period on 27 January 2010.

The decision to accept the Congress should provide the basis for achieving social peace, political peace and governance demanded by society and the country needs.

6 .- VERIFICATION ON THE COMMISSION AND THE COMMISSION ON THE TRUTH

To achieve reconciliation and strengthen democracy, we have the creation of a Credentials Committee of the commitments made in this Agreement, and those derived from it, coordinated by the Organization of American States (OAS).The commission shall consist of two members of the international community and two members of the national community, the latter shall be chosen one by each of the parties.

The Credentials Committee will be responsible for attesting to the strict compliance with all points of this agreement and will receive for it the full cooperation of the Honduran public institutions.

Violation of any of the commitments contained in this Agreement, established and declared by the Credentials Committee, will produce the activation of measures developed by the Commission to the offender or offenders.

To clarify the events before and after 28 June 2009, it will also establish a Truth Commission to identify the actions that led to the current situation and to provide the people of Honduras elements to prevent these acts were repeated in the future.
This Dialogue Commission recommends that the next government, as part of a national consensus, constitutes the Truth Commission in the first half of 2010.

7. ON NORMALIZATION OF RELATIONS OF THE REPUBLIC OF HONDURAS TO THE INTERNATIONAL COMMUNITY

By committing to faithfully fulfill their commitments in this Agreement, we respectfully request the immediate revocation of those measures or sanctions taken bilaterally or multilaterally, that somehow affect reintegration and full participation of the Republic of Honduras in the international community and access to all forms of cooperation. We call upon the international community to relaunch as soon as possible the current projects of cooperation with the Republic of Honduras and continue with the negotiation of future. In particular, we urge that, at the request of the competent authority becomes effective international cooperation that is necessary and timely for the Verification Commission and the Truth Commission in the future to ensure the faithful implementation and monitoring of the commitments made in this Agreement.

8. FINAL PROVISIONS

Any differences in interpretation or application of this Agreement will be submitted to the Credentials Committee, shall determine, in keeping with the provisions of the Constitution of the Republic of Honduras and current legislation and by an authentic interpretation of this Agreement, the solution appropriate.
Taking into account this Agreement is the product of understanding and brotherhood among Hondurans, strongly request the international community to respect the sovereignty of the Republic of Honduras, and fully observe the principle enshrined in the Charter of the United Nations not interference in the internal affairs of other States.

9 .- SCHEDULE OF COMPLIANCE AGREEMENTS

Given the entry into force immediately after this agreement after your subscription date, and in order to clarify the time of implementation and monitoring of commitments made to achieve national reconciliation, agree to the following schedule of compliance.

* October 30, 2009
1 .- Subscription and entry into force of the agreement.
2 .- formal delivery of the agreements to Congress for the purpose of Section 5, the "Executive".
November 2, 2009
1 .- Establishment of the Credentials Committee.
* From the signing of this Agreement and no later than November 5.
1 .- Formation and installation of the Government of Unity and National Reconciliation.
* January 27, 2010
1 .- Celebrating hand over of government.
* First half of 2010
1 .- Establishment of a Truth Commission.

10 .- FINAL DECLARATION

In the name of reconciliation and the patriotic spirit that has brought us together at the negotiating table, we undertake to comply in good faith under this Agreement and what you as a result.

The world is witness to this demonstration of unity and peace, which commits us our civic duty, and patriotic devotion. Together, we shall demonstrate our courage and resolve to strengthen the rule of law and build a tolerant, pluralist and democratic.
We signed this Agreement in Tegucigalpa, Honduras, on 30 October 2009.

11 .- THANKS

We take this opportunity to thank the support and the good offices of the international community, especially the Organization of American States and its Secretary General Jose Miguel Insulza, the Missions of Foreign Ministers of the Hemisphere, the president of Costa Rica, Oscar Arias Sanchez, the final government of the United States, its President Barack Obama and his Secretary of State Hillary Clinton.

12 .- ON THE ENTRY INTO FORCE OF THE AGREEMENT TEGUCIGALPA / SAN JOSE
For internal purposes, the agreement takes full effect after its signing.
For purposes of protocol and ceremonial, will be held a public subscription on 2 November 2009.

Tegucigalpa Central District Municipality, 30 October 2009.

The Yale University Press and a Book about Cartoons

First published on Blog Critics on 19 October 2009

Refusal to reprint dastardly cartoons offensive to Islam was a giant step forward for free speech.

The Yale University Press is dedicated to principles of independence, academic freedom and scholarship; it adheres steadfastly to those principles without fear or favor; without regard to whether its actions cause anger, adverse comment or praise. Its honorable decision to publish The Cartoons That Shook the World minus a reproduction of the actual cartoons demonstrates YUP's fearless adherence to its principles.

YUP is to be commended for its willingness to court popular criticism. Few publishers of significance would be willing to risk outrage of the sort engendered by publication of only a bowdlerized version of The cartoons book. In an August 14, 2009 press release announcing its decision, YUP modestly declined to acknowledge that its courageous goal was to stimulate such criticism and thereby to encourage the sort of freedom of expression it well knew would be directed against it. Instead, it took the much disputed position that its decision was made to promote public safety.

After careful consideration, the Press has declined to reproduce the September 30, 2005, Jyllands-Posten newspaper page that included the cartoons, as well as other depictions of the Prophet Muhammad that the author proposed to include.

The original publication in 2005 of the cartoons depicting the Prophet Muhammad led to a series of violent incidents, and repeated violent acts have followed republication as recently as June 2008, when a car bomb exploded outside the Danish embassy in Islamabad, Pakistan, killing eight people and injuring at least thirty. The next day Al-Qaeda claimed responsibility for the bombing, calling it revenge for the "insulting drawings."

Republication of the cartoons—not just the original printing of them in Denmark—has repeatedly resulted in violence around the world. More than two hundred lives have been lost, and hundreds more have been injured. It is noteworthy that, at the time of the initial crisis over the cartoons in 2005–2006, the New York Times, Washington Post, and Boston Globe declined to print them, as did every major newspaper in the United Kingdom.

Despite this self-effacing explanation, it should be obvious that YUP's motivation had nothing to do with public safety; the chances of violent attacks against YUP or even Yale University as a whole resulting from publication of the already widely seen three year old cartoons in a scholarly volume, likely to be read by few, are laughably remote. Any suggestion that the copious free publicity for YUP certain to result from its decision was a motivating factor must also be rejected. YUP does not need publicity, good or bad. It is already one of the top thousand or so academic book publishing companies in the United States and would be shocked at the prospect of massive demand for one of its learned books. YUP fears the publication of a best seller as the gods fear Sarah Palin. Even more ludicrous is the mean-spirited charge that Yale University was motivated by a desire for financial assistance from such Moslem countries as Saudi Arabia. YUP doubtless has plenty of money, and the thought that Yale University might stoop to such mercenary thoughts is unthinkable.

These nonsensical theses must be put aside. YUP was merely following cherished Yale University Guidelines, known to and respected by all members of the university community.

[T]he history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.

YUP courageously desired to subject itself to violent criticism from the proponents of free speech precisely to encourage such attacks. And vehement attacks there have been. Here is an article reporting and elaborating upon some of them.

Cary Nelson, the President of American Association of University Professors (AAUP), quickly responded on August 13 with a biting letter, "We do not negotiate with terrorists. We just accede to their anticipated demands." Yale's action struck the AAUP as creating much more harm. Yale violated "an author's academic freedom and [damaged] the reputation of the press and the university." These actions would impact "other university presses and publication venues" and "[had] the potential to encourage broader censorship of speech by faculty members or other authors."

It goes on and on, as do many other such articles; indeed, they continue to this day, more than two months after the initial announcement.

How better to encourage "unfettered freedom," thoughts of the "unthinkable", mention of the "unmentionable," and challenges to the "unchallengeable?" Indeed, how better to boldly go where no man had dared to boldly go before? By actively promoting a heretofore unthinkable freedom to suggest that YUP may have had some ulterior motive or, indeed, even that it was strangely misguided, was a truly courageous and brilliant exercise in generous self sacrifice of a type, magnitude and generosity rarely seen. Sadly, "the Yale faculty has mostly yawned."

It is, nevertheless regrettable that some even within the enlightened Yale Community were taken in by YUP's heroic hoax decision, and blamed it on cowardice. One undergraduate commendably proclaimed in the Yalie Daily that there are legitimate limits to freedom of speech.

While most of us would defend the free-speech rights of "birthers" or Klansmen or fraternity misogynists, we defend those rights in a manner that makes clear we don’t want to see those rights exercised in violation of our sensibilities and beliefs. Some ideas are not welcome at Yale, nor should they be.(emphasis added)

I cannot agree with that too much! Indeed, it warms the very cockles of my heart and sole (sic) to learn that Yale is a far better and more liberal place than when I floundered around intellectually there as an undergraduate more than forty years ago, and that only the right to exercise freedoms which do not offend is now desired.

Despite this entirely reasonable statement of principle, doubtless taught by the illustrious academics at Yale, the author attributed the YUP decision to fear, and expressed the odd view that

I would be prouder to belong to a university whose officials censored a book because of what they believed in, and not because of what they feared.

But, as demonstrated above, fear had nothing to do with YUP's selfless and productive decision. Voluntarily going into harm's way, by encouraging attacks on one's adherence to noble principle is not inspired by fear. It is inspired by courage and willingness to suffer the adverse consequences of one's actions. Lux et Vomitus Lux et Veritas! -- a motto now engraved on the hearts of all Yalies in Latin, Arabic, and also for the moment in Hebrew.

Robert E. Lee -- A Remembrance

There are and have been few like him.

General Robert E. Lee died one hundred and thirty-nine years ago on October 12, 1870 (now celebrated as Columbus Day) at the age of sixty-three. We, as a nation, have done with heroes and few remember him. The anniversary of his death will likely go generally unnoticed and unremarked upon. Yet he inspired a nation, or at least a fledgling nation, the Confederate States of America. Those who reminisce about him do so because of his devotion to honor, duty, integrity, for his compassion and for his wisdom. He had those now sadly rare qualities in rare abundance; although I (obviously) never knew him, I miss the likes of him today. When I read a news story dealing with our congresscritters, our president, or His administration, I scratch my balding head and wonder what happened.

The anniversary of General Lee's death having been called to my attention by an article in the Canada Free Press, I read again Rod Cragg's Robert E. Lee, General, A commitment to Valor. I could not find a link to the book on Amazon or even on Google, but somehow I had bought a copy at a used book store in rural Panamá. This article is largely based on it. This song is about General Lee's life.

General Lee's father, "Light-Horse Harry Lee," distinguished himself as a cavalry commander in the Continental Army during the American Revolution. Graduated from the U.S. Military Academy at West Point in 1829, Robert E. Lee eventually rose to the rank of Colonel as commander of the U.S. Army's Texas Department in 1860. Although he considered slavery a "moral and political evil," he declined command of U.S. forces when Virginia seceded and resigned from the U.S. Army to take command of Virginia's military forces. He felt that it was his duty to do so; his sense of honor compelled him. "I did only what my duty demanded; I could have taken no other course without dishonor." He valued honor highly, and because of it chose to fight on behalf of his home, Virginia, rather than for the Union. On April 20, 1861, he wrote to the Secretary of War:

Sir, I have the honor to tender my resignation of my command as colonel of the First Regiment of Cavalry.

Very respectfully your obedient servant,
R.E. Lee, Colonel First Cavalry

In a letter to General Winfield Scott, Commanding, United States Army, Lee wrote on 20 April 1861,

General: Since my interview with you on the 18th instant, I have felt that I ought not longer retain my commission in the army. I therefore tender my resignation, which I request you will recommend for acceptance. It would have been presented at once but for the struggle it has caused me to separate myself from a service to which I have devoted the best years of my life, and all the ability I possessed.

During the whole of that time -- more than a quarter of a century-- I have experienced nothing but kindness from my superiors, and the most cordial friendship from my comrades. To no one, General, have I been as much indebted as to yourself, for uniform kindness and consideration, and it has always been my ardent desire to merit your approbation. I shall carry to the grave the most grateful recollections of your kind consideration, and your name and fame will always be dear to me.

Save in defence of my native state, I never desire again to draw my sword. Be pleased to accept my most earnest wishes for the continuance of your happiness and prosperity, and believe me, most truly yours,

R.E. Lee.

When a substantial number of cadets at the U.S. Military Academy left to join the Confederate Army at the outbreak of the war, a special retreat ceremony was held at West Point, and Dixie is said to have been played in their honor.

Following many military successes and some defeats, Lee was promoted to General-in-Chief of all Confederate armies in 1865. Colonel Ives, an officer who served on General Lee's staff, wrote "His name might be audacity. He will take more desperate chances, and take them quicker than any other general in this country, North or South." Another wrote, "His soldiers reverenced him and had unbounded confidence in him, for he shared all their privations."

General Lee was compelled to surrender to General Grant at Appomattox Virginia on April 9, 1865. A Northern officer who observed him at Appomattox wrote, "In manner, [Lee was] grave and dignified. . . which gave him the air of a man who kept his pride to the last." A private soldier who had served with General Lee throughout the war wrote,

As Lee came riding alone into Richmond [after his surrender], his old followers immediately recognized him and followed him to his home where, with uncovered heads, they saw him to his door. Then they silently dispersed.

Later that year, he wrote to an English correspondent who had offered a place to escape the destruction of Virginia following the war. He said, "I cannot desert my native state in the hour of her adversity. I must abide by her fortunes, and share her fate."

There are many quotations from General Lee. Here is one of my favorites: "Never do a wrong thing to make a friend or to keep one; the man who requires you to do is dearly purchased at a sacrifice."

Here is the text of General Orders No. 9, HQ, Army of Northern Virginia, Appomattox Courthouse, April 10, 1865:

After four years' arduous service, marked by unsurpassed courage and fortitude, the Army of Northern Virginia has been compelled to yield to overwhelming numbers and resources.

I need not tell the survivors of so many hard fought battles who have remained steadfast to the last, that I have consented to this result from no distrust of them, but feeling that valor and devotion could accomplish nothing that could compensate for the loss which would have attended the continuation of the contest, I have determined to avoid the useless sacrifice of those whose past services have endeared them to their countrymen. You will take with you the satisfaction that proceeds from the consciousness of duty faithfully performed, and I earnestly pray that a merciful God may extend to you His blessing and protection. With an increasing admiration of your constancy and devotion to your country, and a grateful remembrance of your kind and generous consideration of myself, I bid you an affectionate farewell.

Robert E. Lee, General

To compare General Lee with any living person of note would be an exercise in futility. He was a man perhaps unique to his time, no politician, and the world in which General Lee lived was vastly different from the world in which we now live. Any comparison would be as pointless as it would be futile. Still, General Lee's sense of honor and its necessary adjunct, integrity, stand out as remarkable, and both qualities are sadly missing from many of those who now strut on the world stage. We should perhaps spend a moment to reflect on the character of General Lee in evaluating those who now have become our leaders; I am afraid that nearly all of them would suffer from the comparison.

What's With the Birthers?

First published by BlogCritics on 7 August 2009

Even if President Obama was born in Kenya, it's too late to do much about it.

According to a 2 August "breaking news" item from WorldNetDaily, a purported copy of President Obama's 1961 Kenyan birth certificate, certified by a Kenyan official in February 1964, has been found. The linked article reproduces a copy. As the article properly notes, a few weeks ago a different Kenyan "birth certificate" had been discovered by someone else and attempted to be marketed on e-bay; it was determined to be a fraud. It seems likely that this one may also be a fraud; it has been so claimed, and the some of the claims at first glance make some sense. On 4 August, an article published in Australasia seemed to claim that the Kenyan "birth certificate" was a forgery based on an Australian birth certificate issued to an Australian. Oh well. Maybe the Birthers are just as nuts as the Truthers, an apparently more reputable bunch who believe that 9-11 was a put up job by President Bush. Then there are those who think that President Obama's policies are increasing the national debt. How could seventy-one percent of the voters believe in such heresy? Still, "88% of Republicans blame the president’s policies, compared to 52% of Democrats. But 79% of voters not affiliated with either party agree." Tsk Tsk! And, as all good people know, those who oppose President Obama's magnificent health care reforms are part of a wicked Republican cabal, mendaciously spreading falsehoods. President Obama and his friends have told us so. We're going to get Obamacare, like it or not; we need it! We had better like it.

I have no absolutely no idea where President Obama was born. However, in view of the recurrent discussion about birth certificates, it seems worthwhile to suspend disbelief briefly and to explore what could likely happen were a bona fide Kenyan birth certificate for President Obama to appear. Such an appearance would raise the important constitutional and practical question of --- "So What?"

As most everyone is by now well aware, Article II, Section 1 of the United States Constitution provides:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

It seems clear on the face of things that if President Obama was born in Kenya, he is not a "natural born Citizen" of the United States and is therefore constitutionally unqualified to be the President. The practical and legal problems revolve around the fact that he was elected to the office, sworn in as president, and in the intervening more than six months has signed into law several major pieces of legislation.

The only constitutional process for removing a sitting president is impeachment by the House of Representatives and conviction by the Senate under Article II, Section 4 for "Treason, Bribery, or other high Crimes and Misdemeanors." Under Article III, Section 3, treason

against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (emphasis added)

Anything may be possible, but it would be a big stretch to characterize presidential lack of constitutional qualification as "treason" as defined in the Constitution. No element of bribery has thus far surfaced, and it seems unlikely that any will. That leaves "high crimes and misdemeanors," the meanings of which are more ambiguous.

If President Obama took office knowing that he was not a natural born citizen of the United States, that might possibly constitute a high crime or misdemeanor. However, this is unclear because there generally must be a law prohibiting specific conduct to make it a crime. There is no federal statute making it a crime to become the president knowing that one does not possess the requisite constitutional qualifications. There probably should be, but there isn't. Until recently, there had been no apparent need for one.

If these hurdles could be got over, there would be others. What is meant by "knowing?" No one actually has personal knowledge as to when or where he was born. I "know" that I was born in Washington, D.C. on 17 June 1941, not only because my parents later told me and I trust them, but also because I have seen the original of my birth certificate which so states. But I have no first hand, personal knowledge. Even had I been fully aware of my immediate surroundings at the moment of birth, a state of awareness which no other infant has ever experienced, there is no way that I could then have differentiated between a maternity hospital room in Washington, D.C. and one in Kenya. Despite my lack of actual personal knowledge, I have many times claimed to have been born on that date and at that place, in official documents executed subject to penalties for perjury.

If Obama falsely and knowingly swore in an official document that he was born in Hawaii, he could perhaps be impeached and convicted on the basis of perjury. There is no evidence of which I am aware of his having taken an oath to that effect; if such evidence exists, and should it be proved that he was not born in Hawaii, perjury would probably be an impeachable offense.

In any event, for impeachment and conviction of "high crimes and misdemeanors," on the basis of perjury or (improbably) without a criminal statute, it would be necessary for President Obama to have had some clear knowledge that he was not a "natural born Citizen" when he assumed office. Where might evidence of such knowledge be found?

If Candidate Obama actually believed that he had not been born in the United States, but knowingly claimed falsely that he had been, evidence of that would certainly be relevant to his state of mind. Proving what someone "believes" is never an easy task, unless the believer has written or spoken of his beliefs. President Obama has probably never expressed, publicly at least, a belief that he is not a "natural born" citizen. It has been claimed (probably correctly) that President Obama's Hawaiian birth certificate is not probative of his birth in Hawaii, even though copies of it were posted on his campaign web site. It seems reasonable to presume that Candidate Obama was aware of the posting. Whether he believed that the Hawaiian birth certificate was spurious is a different question, and a big one.

If President Obama, as a youth, travelled on a passport issued by a foreign country, that could be probative that he was then a citizen of another country. There are two possibilities here:

1. Obama was a United States citizen but obtained and used a foreign passport. If he did not thereby intend to renounce United States citizenship, then he did not forfeit it.

2. Obama was not then in fact a United States citizen, and therefore used a foreign passport. This would be very good evidence that he knew that he was not constitutionally qualified as "natural born" when he sought and accepted the presidency.

There are many questions and few answers. In any event, it seems very unlikely that the present House of Representatives would impeach President Obama even if a newly discovered and clearly valid Kenyan birth certificate proved beyond question that he was born in Kenya; it also seems unlikely that the present Senate would convict. In practice, an impeachable offense boils down to what the House and the Senate say is it is. Former President Ford said substantially the same thing. Currently, the Democrats control both houses of the Congress, and President Obama seems to control the Democrats -- if not completely, then still sufficiently to ward off a successful impeachment. The very first impeachment and conviction in United States history of a (Democratic) president seem so unlikely to occur while there is a Democratic Party majority that the subject may not even be worth discussing.

Impeached and convicted or not, the constitutional crisis would be draconian in the extreme. One possible solution would be for President Obama to resign in order to spare the country lots of turmoil. Then, or if President Obama were removed by the impeachment process, Vice President Biden would become the president, making Speaker Pelosi next in line. This might well be even worse than having President Obama remain in office. Alternatively, President Obama might simply remain in office, a much weakened "lame duck" president, quite probably facing an opposition Congress following the 2010 elections. That might well be the best possible outcome.

There is at least one other possibility, although it holds at best modest facial appeal. All of the laws enacted since 20 January might be attacked as invalid because signed by a spurious president. Aside from the fact that these attacks would take a long time to make their tortured ways through the courts, they would if successful cause a big mess. What about appropriations bills? The Government needs funding. We joke that it would be neat if the Government simply stopped, but realistically that would have some pretty undesirable consequences: the military needs to pay troops and even to feed and arm some of them. Could troops remain active in Iraq and elsewhere? Could they even be brought home? Perhaps they could hitchhike. Like it or not, the Government needs to function, and this requires such mundane things as electricity, salaries, aircraft fuel, and lots more, all of which costs money.

No matter what happens, President Obama will most likely remain in office at least until 20 January 2013. There is a useful teaching point in all of this, however. The "forth estate," the press, let the country down very badly during the primaries and general election campaigns. Rather than pursue even tepidly the question of Candidate Obama's constitutional qualifications, the press grossly disparaged anyone who raised such questions and made sick jokes of the whole thing. That spectacle continues. If a valid Kenyan birth certificate were to surface, it might wake up the press; if that were not to do so, then nothing would.

There are a few things which might be done to avoid similar crises in the future. The states could require proof of constitutional qualification before any candidacy is certified. There are constitutional qualifications for all federal elected officials, and the constitutions of many states likely also specify qualifications for office. There is a move afoot to push for a federal law so providing. The political parties could impose requirements that prior to primaries, candidates make reasonable showings, under oath, of their constitutional qualifications. The Congress might some day pass legislation criminalizing the assumption of the presidency knowing that one is not constitutionally qualified. Maybe some day, another president might sign such legislation, making it the law of the land. Until now, these have been pipe dreams. Now, in the probably unlikely event that a valid Kenyan birth surfaces, there may be sufficient impetus.

Strange Events May Be Brewing and Honduras is Their Focus.

First published at BlogCritics on 9 July 2009

Mediation of the Honduran Situation by President Arias May Well be a Good thing.

The selection of Costa Rican President Arias to mediate the dispute between former Honduran President Zelaya and the Government of interim President Micheletti appears to have been a wise one. It may be useful to speculate a bit about why and by whom President Arias was selected, as well as about the likely impact of these things on the power of Venezuelan President Chávez in Latin America.

The possible role of President Arias as a mediator was suggested to Zelaya during his 7 July Washington meeting with Secretary Clinton, and Zelaya agreed to it. Secretary Clinton promptly telephoned President Arias to ask for his help and he agreed. However, her's was not the only contact with President Arias regarding the Honduran situation: he had been asked the day before by Honduran interim President Micheletti to consider playing such a role. I am unaware of any reports indicating that Chávez had sought Arias' selection, and the United States Government has said nothing to indicate that it has been in discussions with the interim Government of Honduras; it seems not to have been.

Zelaya and Micheletti went to Costa Rica as contemplated, and are to meet separately with Arias. Their positions, at least for now, are unchanged: Zelaya says he must be reinstated and Micheletti says that's out of the question. As I suggested in the linked article, this may prevent, or at least postpone, a military confrontation between the Honduran military and forces from other countries, principally Chávez ally, Nicaragua.

During the 1980s, President Arias played a substantial role in efforts to decrease the influence of the United States over much of Latin America and to bring some measure of stability to the region. He received a Nobel Peace Prize in 1987 for doing so. However, President Arias is not very chummy with Chávez. During his barely successful campaign for reelection as President of Costa Rica in 2006, Arias' principal opponent was Ottón Solis, much favored by Chávez.

Things seem to be happening behind—but not all that far behind—the curtain. On 7 July, the same day that she met with Zelaya and telephoned President Arias, Secretary Clinton submitted to an interview by Globovisión. The interview was at the State Department in Washington. Globovisión, one of the very few broadcast outlets in Venezuela still able to criticize the Chávez government, has been under vigorous attack by that Government, and may soon be closed; its principals are under criminal charges. Here are comments by a blogger in Venezuela, who does not much care for Chávez:

Questions were standard and Hillary responses standard . . . Still, she made it clear that things in Venezuela are not kosher and that she is aware of it.
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No matter what, the interview does not solve anything, does not protect Globovisión from being closed though it makes very clear that the price Chavez will have to pay for it will be very high. Interestingly, the Honduras part . . . revealed how irrelevant Venezuela will become as negotiations keep going.
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As soon as the interview was over I switched to VTV to watch La Hojilla reaction. I was not disappointed as Mario Silva was livid, as furious as I ever saw him. . . . Proving that the interview hit a raw nerve. The top was Silva belching "who named Arias?" betraying his resentment at 1) his boss not being on the forefront anymore and 2) that Arias did the most to block a commie takeover of Central America 20 years ago.

According to Alberto Federico Ravell, head of Globovisión, interviewed on 8 July in Miami as he returned to Venezuela from Washington, he is convinced that

Clinton supports Globovisión's efforts to speak out against Hugo Chávez's government. . . .In every thing she said I was seeing a red beret . . . .It was incredible that the same day she met with ousted Honduran President Zelaya, she also met with representatives from a television channel that is seen by Chávez as part of the opposition.

I think that the full transcript of the Clinton interview confirms that she was, indeed, talking about Chávez, whose media censorship continues unabated. A somewhat different take on the interview is provided here. If, as claimed in that article, Secretary Clinton wanted to "to lower the temperature" in the United States' relations with Venezuela, neither her Globovisión appearance itself, nor statements such as these may have been the best way to go about it:

Clinton said that what the White House hopes to see "over the next months in Venezuela is a recognition that you can be a very strong leader and have very strong opinions without trying to take on too much power and trying to silence all your critics."

"So I think there are ways that the current government in Venezuela could maintain a very strong presence without, in any way, raising questions about the commitment to democracy," the secretary said.

A reminder to viewers of the television station which Chávez is about to close that he shouldn't silence all his critics could hardly have been warmly received by Chávez.

Zelaya's attempt to amend the Honduran Constitution to eliminate the presidential term limit, and later his attempt to return to Honduras, had been vigorously supported by Chávez, who had supplied the aircraft in which he attempted to return to Honduras. It has been reported that Chávez was simultaneously on the telephone with Zelaya, Ortega of Nicaragua and Fidel Castro of Cuba during Zelaya's aborted flight to Honduras. It seems obvious that Chávez's standing in Latin America would have been enhanced by a spectacularly bloody reception of the former President on 6 July, and that it has been diminished by the failure of Zelaya's return and by the selection of President Arias as a mediator.

Despite Chávez's apparent earlier successes in helping to create the Constitutional crisis in Honduras and in pushing the UN, the OAS and ALBA to make it worse, things were not going entirely as he might have wished.

* Shortly before Zelaya's attempted return, several members of the OAS—an organization dominated by Chávez and his allies-- apparently tried to dissuade Zelaya from making the attempt.

* Argentine President Kirchner was one of the dignitaries who flew to El Salvador and thence to Nicaragua to be with Zelaya following his attempt to enter Honduras. Her Peronista party had lost very badly in Argentina's 28 June congressional elections, and her husband resigned as the head of the Peronista party on 30 June; Chávez had been among the principal supporters of their party.

* The current President of Panama in June won a decisive victory with more than sixty percent of the vote over his opponent, a big Chávez supporter. During his inauguration address he announced, "As president, I will do everything within my reach to advance the ideals of a free economy, challenging the different ideological pendulum that Latin America has."

Nor are things going well for Chávez domestically. Here is a link to an article I wrote about that just over a month ago.

Hope perhaps springs eternal, and I may have too much of it. Still, during the days immediately after the "coup" in Honduras, Secretary Clinton's State Department seemed to be at least marginally less supportive of Zelaya's position than was President Obama. At a 30 June State Department briefing, it was stated that "it’s not up to us to determine what’s in line with the [Honduran] constitution." President Obama was quoted, at about the same time, as saying that the weekend ouster of Zelaya was a "not legal" coup and that Zelaya remains the country's president. These statements can be read to suggest a difference of opinion.

According to an article in Power Line by an author with whom I frequently agree, and with whom I very much agree on the nature of the Honduran "coup,"

Obama's position on Honduras is part of an emerging, and very sad, pattern. His bogus catchphrases may vary ("meddling," "illegal," or whatever), but the result always seems to be the same. Whether the venue is Honduras, Russia, or Iran, Obama instinctively sides, in the first instance, with the enemies of freedom and the rule of law. And it doesn't hurt at all if that party is also hostile towards the U.S.

I don't know whether Secretary Clinton's interview on Globovisión was cleared by President Obama. However, her appearance on a Venezuelan television station sufficiently at odds with Chávez that it is likely to be thrown off the air soon, and in the course of the interview to appear to challenge Chávez's silencing of his critics—was certainly a major step. It was one which I suspect would ordinarily have had to be approved by the President. Might these things at least hint that President Obama may yet see that Chávez et al are not the sort of friends he or the United States want? Or might they indicate that Secretary Clinton is looking for a graceful exit from the Obama administration ostensibly over foreign policy? She is a crafty person whom I don't much like, but it will be quite interesting to see what happens over the next few months.