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Omniarchy

Omniarchy describes the principals and positions of a new political philosophy in the United States. The originality of the political positions espoused by the essays contained on the following pages is matched by the novelty of the name used to define them: Omniarchy. If anarchy is the rule of none, monarchy is the rule of one, and oligarchy is the rule of some, then Omniarchy is the rule of all.

Friday, August 26, 2005

Stop Illegal Immigration - Arrest Illegal Employers

According to The New York Times, the United States spends $7.3 billion annually to secure its borders, an increase of 58% since the terror attacks of 9/11. What do we get for our $20,000,000 per day? We get emergency declarations from the governors of New Mexico and Arizona telling us that the international borders of their states are as porous as sieves.

Last Tuesday, Homeland Security Secretary Michael Chertoff responded to these emergency declarations by admitting the failure of his department to staunch the flow of illegal immigrants and by suggesting that we need to completely rethink our entire approach to illegal immigration.
"We have decided to stand back and take a look at how we address the problem and solve it once and for all," Mr. Chertoff said at a breakfast meeting with reporters. "The American public is rightly distressed about a situation in which they feel we do not have the proper control over our borders."
I couldn't him agree more. Nevertheless, I'm pessimistic about our prospects of resolving the problem of illegal immigration anytime soon because the federal government is only confronting one aspect of it. We must institute a comprehensive approach if we want to stop illegal immigration "once and for all."

Until the mid-1980s, America's immigration regulations concentrated on reducing the supply of inexpensive workers by prohibiting or restricting the number of foreign nationals permitted to migrate to the United States. As huge numbers of college-educated baby boomers began to enter the workplace in the mid-1960s, the price of unskilled labor began to rise rapidly, approaching annual growth rates during the 1970s of double digit percentage increases. These increased costs began to create a thriving black market for cheap and illegal labor, and illegal immigrants began to pour into the United States.

By 1986 Congress was forced to do something to staunch the flow of illeal immigrants, and it passed the Immigration Control and Reform Act (ICRA). In addition to providing amnesty for millions of undocumented workers, this law stipulated that employers were required to ensure that their employees were permitted to work in the United States legally. The Immigration and Naturalization Service (INS) was selected to enforce the ICRA and investigate employers of illegal alien workers. The INS could prosecute those employers who were found to be in willful violation of the ICRA between $250 and $10,000 per illegal worker and even imprison flagrant recidivists for up to six months.

Even the best laws must be enforced to be effective, however. Although it rarely, if ever, instituted criminal prosecutions against the employers of illegal workers, the INS did enforce the ICRA by imposing civil penalties, albeit anemically, throughout the 1990s. By 1996, however, Congress reverted to its traditional and politically expeditious approach of immigration control: sealing the borders and attacking the defenseless immigrants themselves. Congress doubled the size of the Border Patrol, increased its technological resources, and restricted the access of non-citizens to numerous social welfare programs such as Medicaid and food stamps regardless of any federal income taxes that these workers might have paid. Finally, as the primary focus of law enforcement shifted back onto the undocumented workers, the prosecution of the domestic employers of illegal immigrants deteriorated from negligible to virtually non-existent. In 1992 the INS fined more than a thousand companies for violating the ICRA, but the number of prosecutions dwindled throughout the 1990s. By 2002 the INS estimated that more than 7,500,000 illegal aliens lived in the United States, and it fined all 13 of their employers.

Thankfully, the INS was not the only federal bureau responsible for the enforcement of federal laws intended to preclude the employment of illegal workers. Federal law also empowers the Internal Revenue Service (IRS) to fine employers who submit W-4 forms with incomplete or incorrect employee identification information such as inaccurate Social Security Numbers. According to the Government Accounting Office, (GAO) the IRS estimated that 353,000 illegal workers paid federal income taxes in 2000 and that more than 265,000 of them did so by using fallacious Social Security Numbers.

Unlike the INS, however, the enforcement of federal law by the IRS has not diminished recently. Surprisingly, the GAO found that IRS had fined exactly same number of companies in 2003 as it had in 2002 and 2001 and 2000. Unfortunately, that number was zero. Yes, zero as in absolutely none. In fact, since the IRCA became federal law nearly twenty years ago, the GAO reported that IRS has not fined a single company for filing incomplete or incorrect Social Security Numbers. Ever. Although the IRS has been totally negligent in enforcing federal immigration statutes, instead of merely perfunctory like the INS, its policy does contain the virtue of consistency.

Moreover, the enforcement of the employer provisions of American immigration law is likely to continue to deteriorate. As a response to the terrorist attacks of September 11th, the Congress created the Department of Homeland Security (DHS) in 2002. It removed the INS from the Department of Justice (DOJ) and placed it within the DHS, renaming it Citizenship and Immigration Services (CIS) in the process. According to the DHS, however, the priorities of the CIS are
"to promote national security, continue to eliminate immigration case backlogs, and improve customer services."
Thus, the enforcement of the immigration regulations of the United States government has shifted from criminal prosecution in the DOJ to the quasi-military function of national security in the DHS. The CIS is charged with protecting America's national borders from illegal incursions and ensuring, to the greatest extent possible, that every foreign national in the United States has entered this country legally. Thus, the CIS focuses on preventing illegal immigration, deporting illegal immigrants and prosecuting their domestic abettors; it does not focus on eliminating the inducement that gainful employment offers to destitute aliens by prosecuting their criminal employers.

Although the investigative divisions of the CIS and IRS must focus on securing our borders and collecting our taxes respectively, one organization within the federal government is concerned with enforcing American labor regulations: the Employment Standards Administration of the aptly named Department of Labor. Its Wage and Hour Division (WHD) is responsible for "enforcing a number of federal laws which set basic labor standards," including issues that pertain to migrant and immigrant workers. In 2003, the WHD spent over one million hours conducting nearly 40,000 investigations, more than eighty percent of which pertained to the Fair Labor Standards Act (FLSA) of 1938. Furthermore, it conducted nearly 13,000 investigations in industries that hire undocumented workers frequently such as agriculture, lodging, restaurants and healthcare.

Thus, simple logic dictates the Congress must relocate the enforcement of the employer provisions of the IRCA from the Department of Homeland Security to the Department of Labor immediately. In short, Congress must equate a violation of the ICRA with a violation the FLSA and demand that the Department of Labor enforces this law assiduously.

Amoral employers who sought cheap and docile unskilled workers a century ago would often employ young children as menial labors in atrocious conditions. As an employment practice, child labor was considered to be a social rather than economic issue during the Nineteenth Century and, hence, beyond the purview of the federal government. In fact, federal statutory prohibitions against the employment of juvenile workers were deemed to be unconstitutional not once but twice by the Supreme Court in the early Twentieth Century. This attitude changed during the New Deal, however, and the scourge childhood labor was eradicated by the FLSA.

As a method of exploiting employees and deflating the wages of adult American, child labor differs very little from the employment of illegal immigrants. Child labor was eradicated by prosecuting exploitative employers, not victimized employees. Similarly, the federal government must shift its enforcement policies of the IRCA. Instead of persecuting hapless and vulnerable undocumented workers who migrate here illegally in order to improve their standard of living, the federal government must prosecute their unscrupulous American employers who hire them in order to improve their profit margins unfairly and illegally. In this way, and this way only, can the federal government begin to eliminate the scourge of illegal immigration.

By itself, the harassment, arrest and deportation of undocumented workers will not end or diminish illegal immigration. These efforts attack only the supply of cheap labor, not the demand for it. If a commodity, such as the illegal employment of undocumented workers or the illegal use of narcotic drugs, is to be extirpated from a society, prohibitions against both the purveyors and the consumers must be instituted and enforced equitably and vigorously. To concentrate on the supply of an illegal commodity exclusively while ignoring the demand for it completely obviates any realistic possibility of its eradication. The dynamics of supply and demand are immutable: if the demand for an illegal commodity exists, suppliers will endeavor to meet it arduously. Penalizing the suppliers of cheap labor, such as smugglers and immigrants, while ignoring the consumers of cheap labor, such as their corporate and individual employers, is like making heroin illegal and prosecuting the pushers, but giving the junies a free pass. Only a comprehensive approach to the pernicious influence of illegal immigration will cure those employers addicted to the use of inexpensive and exploitable laborers.

Drastically altering federal immigration and employment statutes by granting legal status to "temporary workers", as President Bush proposed in January of 2004, won't necessarily inhibit the growth of illegal immigration either, and it could make matters worse. Such a program would not only reward employers and employees who have violated existing federal law flagrantly; it would legitimize exploitative employment practices. Moreover, it would induce millions of temporary legal workers to remain in the United States after their work visas have expired, thereby becoming permanent illegal workers. Most perniciously, a temporary worker program will merely legitimize the perpetual degradation of a replaceable underclass of alien workers.

Although open immigration may have depressed the value of American labor in the early Twentieth Century, it enhanced the value of American culture. Millions of the most intrepid, confident and diligent people from virtually every nation on Earth have migrated to the United States, not to simply earn a better wage but to build a better life. They were not stigmatized legally as fit to work here, but somehow unfit to live here. Throughout history, amoral employers have exploited immigrants egregiously, but not since the abolition of human slavery has United States government sanctioned this exploitation by creating a permanent and legal subclass of American workers. It cannot be permitted to do so again.

When he proposed his temporary worker program, President Bush said,
"There must be strong workplace enforcement with tough penalties for anyone, for any employer violating these laws."
What are you waiting for Mr. President? Isn't it about time you got serious about illegal immigration? Isn't it about time that you demanded that your agencies begin enforcing the federal laws already on the books?

If you start throwing some illegal employers into federal penitentiaries, maybe the rest of them will stop hiring illegal workers. I think it's a pretty safe bet that fewer people will sneak into our country if none of them can find any work here. You already have all the laws you need to reduce illegal immigration significantly or eliminate it permanently. All you lack is the political will to enforce the law against your corporate cronies.

Tuesday, August 23, 2005

The Top Ten Reasons We Should Assassinate Pat Robertson

I see where Pat Robertson is at it again.

Well, much like Swift's solution to Irish overcrowding, I have an idea about how we can prevent any future outbreaks of his obviously chronic case of "foot-in-mouth" disease:

The Top Ten Reasons We Should Assassinate Pat Robertson

10 - It'll show the world the true meaning of Christianity.

9 - Unlike Hugo Chavez, he wasn't elected to anything.

8 - It's a whole lot cheaper than starting a war against the Christian Coalition, and I don't think any religious services will stop.

7 - It will prove that "pagans, abortionists, feminists, gays, lesbians, the ACLU, and the People for the American Way" weren't responsible for 9/11.

6 - Who does Chavez think he is anyway, Salvador Allende?

5 - His TV show can change its name to The 699 Club.

4 - It will help to resurrect the careers of Jim Bakker and Jimmy Swaggart.

3 - We should take out everybody whose first name is "Marion".

2 - He'll never run for President again.

1 - Cheaper Venezuelan oil!

Thursday, August 18, 2005

Taxation and the Artifical Aristocracy

Since the objective of every market is the creation of wealth and since the power to increase or decrease taxes implies the power to either encourage or discourage economic behavior, tax policies must reward those behaviors that tend to enhance its creation. Conversely, these policies should also prohibit those economic activities that do not facilitate the creation of wealth. In other words, the most logical and effective tax policy would be to tax the most productive economic activities the least, and the least productive economic activities the most. Thus, because income is not homogeneous, our federal income tax policy must consider the nature of that income and adjust the rate of taxation placed upon it according to its relative economic value.
In general terms, people and organizations receive income legally from three disparate sources: earned income from work and labor; earned income from the investment of capital and property; and unearned income from gifts and inheritance. The first activity is the most productive economically, and should be taxed the least. Although it does yield economic benefits, the second activity is less productive than the first, and therefore, should be taxed at a higher rate than the first. The third activity generates no economic productivity whatsoever and should be taxed at a confiscatory rate.

Congress must revise our nation’s tax laws to send a clear signal to its individual and corporate constituents: that the United States values progress over plutocracy and efficiency over inertia. Or, in the words of Alexis de Tocqueville,
"What is important for democracies is not that great fortunes should not exist, but that great fortunes should not remain in the same hands. In that way, there are rich men, but they do not form a class."
Thus, Congress must place a lifetime tax-free limit on the amount of unearned income that any person or group can receive from any other person or group at $100,000 and tax any amount in excess of this limit at the rate of 100%. Two exceptions to this policy should be adopted simultaneously, however. First, reasonable child rearing expenses such as food, clothing, shelter, education and healthcare must not qualify as gifts or inheritance. Second, that portion of the deceased's estate that was acquired during a marriage must be transferable to a surviving spouse tax-free. Nevertheless, perpetual cross-generational transfers of massive amounts of unearned wealth are the antitheses of the American dream and must be eliminated.

Because the ownership of massive amounts of property denotes economic power, excessive gifts and inheritance are inherently aristocratic. In a nation where all people are created equal in the eyes of the law, those who possess social, spiritual, political, and military power must acquire that power themselves. Why is economic power exempted from this democratic process? If it is aristocratic to transfer social or political power to one's progeny perpetually through the inheritance of titles of nobility, why is it not equally aristocratic to transfer economic nobility to one's progeny perpetually through the inheritance of massive wealth? If children are not entitled to inherit their parents’ vocations, why are they entitled to inherit the proceeds from those vocations?

In order to prevent the perpetuation of an elite genetic class of citizens based upon the superfluous criteria of familial relationships, the United States Constitution in Article I specifically prevents both the federal government in Section 9 and individual state governments in Section 10 from conferring "Title[s] of Nobility". The transfer of massive amounts of wealth within families is simply the perpetuation of economic titles of nobility based upon genetic criteria.

Forbes magazine publishes a list of the wealthiest people in the world annually. In 2004, twenty-seven of the fifty wealthiest people in the world were Americans and possessed aggregate personal fortunes worth more than $400 billion. Most significantly, fourteen of these twenty-seven richest Americans had acquired their phenomenal wealth simply by inheriting it. Forbes estimated the worth of these fourteen inherited family fortunes at $174 billion, or nearly $12.5 billion per person. Yes, you read that right: that's billion with a "b". Not only does this transfer of massive unearned income perpetuate an economic aristocracy within a society that was intended to prevent the passive genetic transfer of cultural power, it is logical to presume that this tendency will increase as the current owners of self-made fortunes pass their wealth onto their progeny. If the United States is to remain true to raison d'etre as a society in which "all men are created equal" and if each of us possesses an inalienable right to pursue "happiness" equitably, then we must abolish aristocracy in all of its pernicious forms: political, social and economic.

Earning wealth requires activity and effort; receiving it engenders idleness and stagnation. This is why the liberal anti-poverty programs of Lyndon Johnson’s Great Society in the 1960s failed: gifts yield inertia. If providing the indigent with modest amounts of unearned capital (such as welfare payments) and unearned property (such as public housing) is economically counter-productive, isn't it equally counter-productive for the affluent to receive massive amounts of unearned capital and unearned property in the form of gifts and inheritance? If welfare and public housing engender sloth and indolence, why don't gifts and inheritance? Does the source of the unearned property alter its affect upon the recipient? Gifts have less value than earnings because people value that which they have earned much more highly than that which they have been given intrinsically.

Racist and sexist societies classify groups of individuals based upon irrelevant genetic criteria such as race or gender and then inhibit any realistic possibility of economic success for that class of individuals. Massive wealth transfers based upon the equally superfluous genetic criterion of familial lineage are simply the flip side of the same economically inefficient and morally reprehensible coin. Instead of precluding economic success, massive gifts and inheritance ensure it.

Although they disagreed about virtually every issue affecting the nascent United States during their careers, John Adams and Thomas Jefferson, began a remarkable correspondence after they had retired from public life. As these two former presidents discussed and reflected upon the world in which they lived and the nation they had helped to create, the question of the existence of a "natural aristocracy" within a society arose. In 1813, Jefferson wrote,
"I agree with you that there is a natural aristocracy among men. The grounds of this are virtue and talent. . . . There is also an artificial aristocracy, founded on wealth and birth, without either virtue or talents. . . ."
In his subsequent letter Adams replied,
"We are now explicitly agreed, in one important point, vizt. That 'there is a natural Aristocracy among men; the grounds of which are Virtue and Talents'. . . .

When I consider the weakness, the folly, the Pride, the Vanity, the Selfishness, the Artifice, the low craft and meaning cunning, the want of Principle, the Avarice, the unbounded Ambition, the unfeeling Cruelty of a majority of those (in all Nations) who are allowed an aristocratical [sic] influence; and on the other hand, the Stupidity with which the more numerous multitude, not only become their Dupes, but even love to be Taken in by their Tricks: I feel a stronger disposition to weep at their destiny, than to laugh at their Folly."


Although Jefferson, Adams and their fellow revolutionaries were largely successful in precluding the aristocratic transfer of social and political power within the United States, they were less fortuitous in doing so economically. The United States Congress must complete their journey. Virtue and talent must supercede wealth and birth within every segment of our society. Genetic discrimination, regardless of whether it bestows the economic advantages of aristocracy or the disadvantages of peasantry upon its recipients, is diametrically opposed to America’s cultural maxims of autonomy and the equality of opportunity. It is the antonym of Americanism.

Because the primary economic goal of federal taxation must be to increase the nation’s economic productivity, excessive unearned income in the form of gifts and inheritance must be proscribed. Quite simply, the tax policies of the United States must be predicated upon the principle that Americans deserve to retain as much of the property that they earned through the dint of their labors as possible. Nevertheless, if the principle of deserving to keep what you earn is both economically effective and socially just, then the converse must be equally effective and just: you don’t deserve to keep what you didn't earn.

Monday, August 08, 2005

Is George Bush a War Criminal?

It's easy to understand why the American public is confused about the torture and abuse of Iraqi prisoners in Abu Ghraib prison. This is because Abu Ghraib was the end result of a long line of policy decisions and treaty violations. In short, we got the end of the story first, and we're just now beginning to see the beginning.

Abu Ghraib didn't start in 2004 when those horrific photographs came to light; it started with the fall of Kabul in Afghanistan at the end of 2001. So perhaps, a brief chronology might add some perspective.
At the end or 2001, America was still reeling from the barbarous attacks of September 11th. The Bush Administration was seething and, perhaps legitimately, it feared of another terrorist attack upon the United States. Simultaneously, it was trying to figure out what to do with all of the Taliban fighters it had just captured. In short, the question quickly became whether or not the Taliban or al-Qeada or both were covered under the Geneva Conventions on the Treatment of Prisoners of War.

On the face of it, it seemed quite clear. Al-Qeada was a non-governmental terrorist organization, and its members should be treated as captured criminals. The Taliban militia was a military organization, and its members should be treated as POWs. If there was some confusion between the two, Article Five of the Geneva Convention was quite explicit:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

This raised some problems for the Bush Administration, however. We were fighting "a new kind of war" apparently. Under our treaties and protocols, criminals and POWs have rights, such as humane treatment and repatriation after the end of hostilities, and the Bush Administration didn't want to honor those commitments. They wanted the "flexibility" to hold captured belligerents in perpetuity and treat them in any manner the Armed Forces believed to be appropriate.

So the Department of Defense (DoD) asked the Department of Justice (DoJ) if the Geneva Conventions applied to captured Taliban militia. On January 9, 2002, they got their answer from John Yoo and Robert Delahunty: No. Al-Qeada was obviously not covered under the Conventions. The Taliban, however, was a little trickier.
"Whether the Geneva Conventions apply to the detention and trial of members of the Taliban militia presents a more difficult legal question. Afghanistan has been party to all four Geneva Conventions since 1956. Some might argue that this require application of the Geneva Conventions to the present conflict with respect to the Taliban militia, which would then trigger the WCA [War Crimes Act]. This argument depends, however, on the assumptions that during the period in which the Taliban militia was ascendant in Afghanistan, the Taliban was the de facto government of that nation, that Afghanistan continued to have the essential attributes of statehood, and that Afghanistan continued in good standing as a party to the treaties that its previous governments had signed.

We think that all of these assumptions are disputable, and indeed false. The weight of informed opinion strongly supports the conclusion that, for the period in question, Afghanistan was a 'failed State' whose territory had been largely overrun and held by violence by a militia of faction rather than a government. Accordingly, Afghanistan was without the attributes of statehood necessary to continue as a party to the Geneva Conventions . . . ."
So "informed opinion" said that Afghanistan was a "failed State". This made its government illegitimate, even though the United States was instrumental in helping it to acquire power during its war with the Soviet Union in the late 1980s, and supporters of governments that we deem to be illegitimate unilaterally and arbitrarily aren't protected by our international treaties. In other words, our treaties aren't binding; they're only applicable when the Executive branch of the government says they are.

As a result, President Bush proclaimed that the Taliban was not protected Geneva, and Secretary Rumsfeld issued an order to the Joint Chiefs of Staff the next day.

But not so fast, said Secretary of State Colin Powell. He wrote a memo to the DoJ refuting many of the contentions made in its memo of January 9th. Specifically, Powell stated,
"The Memorandum [from the DoJ] should note that any determination that Afghanistan is a failed state would be contrary to the official U.S. government position. The United States and the international community have consistently held Afghanistan to its treaty obligations and identified it as a party to the Geneva Conventions."
Well, apparently the DoJ considered the Secretary Powell and the State Department to be excluded from "informed opinion" about the diplomatic status of Afghanistan. Notwithstanding the question of whether the Departments of State or Justice were better informed about the international status of Afghanistan, President Bush called upon is top lawyer, Alberto Gonzales, to sort things out. So, in the best tradition of bureaucratic Washington, he sent the President a memo on January 25th.

Gonzales's memo gave the President of the option of applying the Geneva Conventions to the Taliban in clear violation of Article 5. How could he do so? Why because, despite the statements of his Secretary of State to the contrary,
"Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people . . . .

The Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group."
Apparently President Bush decided to rely on Justice instead of State to determine foreign policy.

But Gonzales didn't want to appear as if he was making foreign policy. After all, that's the President's job; he could only recommend. So his memo included the pluses and minuses of excluding al-Qeada and the Taliban from the Geneva Conventions. He indicated that only two positives could be associated with the suspension of the treaty. First, he listed "flexibility", which would provide the Armed Forces with "the ability to quickly obtain information from captured terrorists" without having to worry about incidentals such as repatriation and humane treatment.

Secondly, and more ominously, he discussed the reduced "threat of domestic prosecution under the War Crimes Act"! Yes, you heard me right. The Office of the Legal Counsel of the Department of Justice told the President of the United States that, if he wants to institute a policy of prisoner abuse, he should, contrary to the opinion of his State Department, simply declare the nation a "failed state" and stipulate that the Geneva Conventions are inapplicable. Why? So that the President of our nation could avoid future domestic prosecution as a WAR CIMINAL:
"Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based upon Section 2441 [the War Crimes Act]. Your determination [that the Geneva Conventions do not apply to the Taliban] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution."
Did I read that right? For the President to escape prosecution as a war criminal, all he needs to do is say that the Geneva Conventions, and hence the War Crimes Act, do not apply. Shades of Louis XVII, "L'etat, c'est moi!" (I am the state!) Federal law doesn't apply to me. Why? BECAUSE I'M THE PRESIDENT AND I SAID SO!

Well, needless to say, George II liked this opinion, overrode the opinion of his Secretary of State, and on February 7th signed an order validating Rumsfeld's January 19th order to the Joint Chiefs.
"Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida [sic], al-Qaida detainees also do not qualify as prisoners of war."
Let the games begin. And begin they did. Not at Abu Ghraib in Iraq, but at Bagram in Afghanistan. At some point during 2002 our troops began to torture their prisoners, and in December of that year they eventually beat two of them to death. One was the brother a reputed Taliban commander and the other was a taxicab driver. Their crimes? They had resisted having hoods placed over their heads. Was placing a hood over a prisoner humane treatment? It didn't matter because the President said so. Was beating them in order to force compliance humane? Ditto.

So who' s going to jail? Why the grunts, of course. Is it fair? Is it right? Is it just? Well, maybe it is, but the guys who are up on charges don't think so.
"In the first interview granted by any of the accused soldiers, a former guard charged with maiming and assault said that he and other reservist military policemen were specifically instructed at Bagram how to deliver the type of blows that killed the two detainees, and that the strikes were commonly used when prisoners resisted being hooded or shackled.

'I just don't understand how, if we were given training to do this, you can say that we were wrong and should have known better,' said the soldier, Pvt. Willie V. Brand, 26"
Six months later, the Bagram policies found their way to Abu Ghraib. By the end of 2003, our soldiers were, in the words ofMajor General Antonio M. Taguba, engaged in,
"egregious acts and grave breaches of international law"
at Abu Ghraib.

So who's really to blame? I don't know and neither does anybody else. Why? Because I don't have subpoena power and both Bagram and Abu Ghraib have been Army investigations.

That's why the Congress has to appoint a special prosecutor to investigate the commission of war crimes in Afghanistan and Iraq. We need to know if our President is a war criminal, notwithstanding the opinion of his legal counsel. We need to know if any of his staff are war criminals. We need to know if the DoD employed any war criminals. After all, as the War Crimes Act clearly states:
(c) Definition.--As used in this section the term 'war crime' means any conduct--

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
All I do know is that no one, not even our President, is above the law simply because he says so.

Thursday, August 04, 2005

The Illegitimate Birth of Political Correctness

In the aftermath of World War I, Supreme Court Justices Holmes and Brandeis realized that speech could be used to express ideas that are loathsome to the vast majority of American citizens. However, they subscribed to the belief that loathsome speech merits the same constitutional protections as admired speech. Their beliefs were put to the test again during the Cold War, only instead of prohibiting "seditious" speech on the street corner, as they did during World War I, state and federal governments banned it from the workplace.

In the anti-Communist hysteria after World War II, the Smith Act, the McCarren Act, the Communist Control Act, and various state and federal programs that mandated loyalty oaths all proscribed the employment of individuals who advocated the violent overthrow of the United States government. Among the most controversial of these legislative enactments was New York's Feinberg Law of 1949. This law barred any person who advocated or taught the overthrow of the United States government by force or violence or belonged to an organization that did so, either currently or previously, from employment as a teacher in the New York public school system. At first, the Supreme Court upheld most of these laws. As the Communist panic waned throughout the late 1950s and 1960s, however, they were all overturned. Finally, in 1967, the Supreme Court even invalidated the Feinberg Law with Justice William Brennan calling it "a highly efficient in terrorem mechanism".

Today, the freedom of expression within the workplace is under attack again, this time by the sexual and racial McCarthyites of the political left. Much like the original McCarthyites who demanded fealty to the economic and political dogmas of capitalism and democracy and sought to stifle all civic dissent, today's tyrannical federal bureaucrats who espouse the dogmas of social decorum and equality seek to stifle sexual and racial dissent within corporate America. Rather than repressing the freedom of American Communists and anarchists to express their opinions within the workplace, they repress the freedom of expression for American racists, misogynists, ethnic chauvinists and homophobes. Instead of enacting a Feinberg law to protect New York's schoolchildren, these neo-McCarthyites have subverted a landmark of federal civil rights legislation in order to suppress contrary opinion and ostensibly protect American workers from ideas and opinions that they find to be either repugnant or dangerous.

Ironically, the “highly efficient in terrorem mechanism” they have expropriated is Title VII of the Civil Rights Act of 1964, a law that was a legislative victory for every American opposed to bigotry within the workplace. The doctrinaire zealots of anti-discrimination in the Equal Employment Opportunity Commission (EEOC), however, have usurped this law and imposed federal censorship within the workplace by misconstruing the original intent of one small section of the statute. The clause they misinterpret intentionally pertains to hiring and firing practices and states,
"It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

The EEOC has altered the meaning and intent of the law by redefining the obvious intent of the phrase "conditions … of employment" from its more common and logical definition of "hiring practices" to include the nature of the workplace environment itself. In so doing, they discovered a device that they could employ to impose a prior restraint against discriminatory speech and thereby obtrude their rigid social credo into the workplace environment. Presumably, if Congress had intended to pass a law that prohibited some form of speech within a specific environment, such as the workplace, in 1964 or at any time thereafter, it would have done so. It is absolutely certain, however, that the Civil Rights Act of 1964, neither in its original purpose nor in its intended effect, was such a law.

By intentionally subverting this phrase, the EEOC has expanded the authority granted to it by Title VII and rewritten the law from one that prohibits discriminatory employment practices to one that proscribes the expression of discriminatory opinions within the workplace. Even its name belies this usurpation: it is the Equal Employment Opportunity Commission, not the Equal Employment Environment Commission.

The puritans of the EEOC began their a priori censorship of discriminatory speech in the workplace in 1980 by defining sexual harassment as:
"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . ."[emphasis added]
Obviously, unwelcome sexual advances, as forms of assault, and requests for sexual favors, as forms of extortion, are clearly examples of pernicious and illegal harassment. As it pertains to the freedom of speech, however, the key issue concerns the final clause of this definition. Specifically, it pertains to the EEOC's distinction between verbal and physical conduct. If “verbal conduct” is speech, as it must be, then the EEOC’s 1980 definition of sexual harassment must be a prima facie violation of the First Amendment.

Racism, sexism, homophobia and ethnocentricity and religious intolerance may be particularly abhorrent social philosophies, but regardless of the emotional distress their espousal might cause an employee, and notwithstanding the opinions of leftist ideologues imbued with legal power, their expression cannot be made illegitimate within a free society. Derogatory verbal conduct of a religious, ethnic, sexual or racial nature that substantiates or even advocates an illegal action, such as either direct or tacit discrimination within the workplace, serves an illegitimate purpose and must be proscribed. Derogatory verbal conduct that merely expresses offensive or repulsive personal opinions, regardless of the nature of those opinions, the hostility of the environment they engender, or the emotional distress they may inflict upon their audience, does not and cannot. Hence, the EEOC's definition of sexual harassment as verbal conduct of a sexual nature contains a prior restraint against free speech that is unconstitutionally indiscriminant.

By including "verbal . . . conduct of a sexual nature" in its definition of harassment, the EEOC has defined the term too broadly and transformed Title VII of the Civil Rights Act into a modern version of the Feinberg Law. As New York schoolteachers could not embrace or espouse the principles of an aberrant political philosophy during the Cold War, so too contemporary workers cannot embrace or espouse the principles of an aberrant social philosophy today. In the prescient words of Justice Hugo Black in his famous dissent in Alder v. Board of Education, the EEOC has transmuted a law intended to promulgate civil rights throughout the United States into another of:
". . . those rapidly multiplying legislative enactments that make it dangerous . . . to think or say anything except what a transient majority thinks at the moment. . . . [P]ublic officials cannot be constitutionally vested with powers to select the ideas people can think about, censor the public views they can express, or choose the persons or groups people can associate with. Public officials with such powers are not public servants; they are public masters."

Surely in this instance, therefore, the Supreme Court would recognize the EEOC's unconstitutional incursion into the American workplace. Surely it would rule that prohibiting "verbal . . . conduct of a sexual nature" was an unconstitutional restraint of free speech. After all, as Justice Brennan had written in 1963:
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."

In a remarkable piece of judicial legislation, however, an activist Supreme Court allowed the EEOC to transform the Civil Rights Act of 1964 into the Anti-Discriminatory Speech in the Workplace Act of 1986. In the case of Meritor Savings Bank v. Vinson, it affirmed the EEOC's authority to proscribe speech within the workplace. In so doing, it fabricated a lower threshold of unconstitutionality in the restraint of socially repugnant speech than in the restraint of politically repugnant speech and opened the Orwellian specter of thought control within the workplace.

Ironically, the author of this repressive opinion was none other than William Rehnquist, an alleged paragon of judicial restraint. In his remarkable opinion, he first ignored the intent of Congress when it enacted the Civil Rights Act of 1964, as well as the language of the Act itself, and permitted the EEOC to regulate the workplace environment. Then he discovered a new right for employees; one that superseded the freedom of speech guaranteed by the First Amendment and had not been present in the Constitution heretofore. In an amazing example of judicial activism, he granted
". . . employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."
He did not address from whence this novel right had originated, however, nor where it exists within the Constitution. Apparently, the EEOC simply made it up, and that was good enough for him. Then, as a pièce de résistance, Justice Rehnquist wrote that he wasn't defining the word "free" in its most common and absolute sense of totally unencumbered but rather in some vague and undefined relative sense. For example, the
". . . 'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII."

We were left to ourselves to wonder who would determine the arbitrary and subjective standard of the "sufficiently significant degree" of utterances that would constitute harassment and, hence, permit the censorship of opinion within the American workplace. We were left to ourselves to presume that the phrase "except for speech that creates a hostile workplace environment" had been inserted into Rehnquist's copy of the First Amendment surreptitiously. We were left to ourselves to speculate as to the quality and quantity of the epithets that would justify a prior restraint against speech and the suspension of the First Amendment within the workplace. And we have been wondering, presuming and speculating ever since.

In 1919, Justice Holmes wrote,
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
It is sadly ironic that the same Court from which these words were written now sanctions a de facto witch-hunt for racists, misogynists, homophobes, and ethnocentric and religious chauvinists within the marketplace itself. The vast majority of Americans rejects these social philosophies as patently ridiculous and finds their espousal to be idiotic, offensive and repulsive. Nevertheless, our government cannot forbid discriminatory intimidation, ridicule and insult anywhere within a free society because we fear an offense to our sensibilities and yet remain free.