"...do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..."

"For the good of the Air Force, for the good of the armed services and for the good of our country, I urge you to reject convention and careerism..."
- Secretary of Defense Robert Gates, Maxwell AFB, April 21, 2008

"You will need to challenge conventional wisdom and call things like you see them to subordinates and superiors alike."
- Secretary of Defense Robert Gates, United States Air Force Academy, March 4, 2011

Thursday, April 30, 2015

Rodriquez v. United States & Rynearson v. United States

The Supreme Court of the United States (SCOTUS) recently had to correct the Eighth Circuit Court of Appeals and a district court with its ruling in Rodriguez v. United States.  The issues raised in this decision are incredibly similar to the issues I raised before the Fifth Circuit Court of Appeals, where I am waiting for the court to grant or deny my petition for en banc review in Rynearson v. United States.  In this recent ruling, the Supreme Court ruled that existing Supreme Court decisions made it clear that it was a violation of the Fourth Amendment for law enforcement to detain an individual longer than reasonably required to attend to the mission/scope of the stop (ie the reason justifying the stop in the first place) unless there was individualized suspicion of wrongdoing justifying an extended detention.  Here are some of the key similarities and differences between Rodriguez and Rynearson.

But first a key difference.  In Rodriguez, the driver was stopped with suspicion of a crime and then after an unlawful detention and investigation, a greater crime was discovered.  In Rynearson, the driver was stopped without any suspicion of any crime whatsoever, and no suspicion for any crime at all ever developed during the detention.

Similarities Between Rodriguez and Rynearson:

1.  In both Rodriguez and Rynearson, the drivers were seized by law enforcement, and both drivers stood on their rights.  In both cases, law enforcement requested (but did not order) the drivers out of their vehicles, and in both cases the drivers refused the request.

2.  In both Rodriguez and Rynearson, the district court magistrate judges thought the search and seizure was de minimis, and therefore ruled the encounters permissible.  In both cases the district courts adopted the opinion of the magistrate judges.

3.  In both Rodriguez and Rynearson, the detentions were closer to a "Terry Stop" than an arrest.

4.  Rodriguez and Rynearson both referenced the following Supreme Court decisions: Sharpe, Morgan, Terry, Edmond, Ellis, Mimms, and Arvizu.

5.  The SCOTUS said that it had already made the scope of stops clear in Caballes and then reiterated those limits again in Johnson, much as the Fifth Circuit Court of Appeals made the scope of suspicionless immigration checkpoints clear in Machuca-Barerra and then reiterated those limits again in Portillo-Aguirre.

6.  In both Rodriguez and Rynearson, the appeals courts found that the detentions at issue were not justified by individualized suspicion of a crime.

7.  In both Rodriguez and Rynearson, existing clearly established law was not recognized or applied at the district court or appellate level.

8.  In both Rodriguez and Rynearson, law enforcement did not limit itself to the time reasonably necessary to attend to the mission/scope of the stop.

9.   In both Rodriguez and Rynearson, law enforcement extended the detention to pursue investigations that were outside the scope or mission of the stop.

10.  In both Rodriguez and Rynearson, the detentions were not considered Terry stops, and yet Terry jurisprudence still informed the limits of the scope and mission of the stops and the duty of law enforcement to be diligent.

Differences Between Rodriguez and Rynearson:

1.  Rynearson involved a detention without any suspicion of any crime whatsoever, while Rodriguez involved an initial detention based on reasonable suspicion of a traffic violation (swerving).

2.  In Rynearson, the driver was not breaking the law, whereas in Rodriguez the driver broke a traffic law and was also smuggling a large quantity of illegal narcotics.

3.  In Rynearson the driver was detained for 34 minutes in total, while the overall detention of the driver in Rodriguez was less than thirty minutes.

4.  In Rodriguez, the irrelevant detention (beyond the scope or mission of the stop) was 7 to 8 minutes.  For Rynearson the irrelevant detention (beyond the scope or mission of the stop) was at least 23 minutes (and in reality was closer to 33 minutes).

5.  In Rodriguez, the driver was asked if a drug dog could be run around his car and the driver refused.  In Rynearson, the driver was not asked for permission and the drug dog was simply run around his car anyway.

6.  In Rodriguez, the drug dog alerted to drugs.  In Rynearson, the drug dog did not alert.

7.  In Rodriguez, the driver was charged with a crime.  In Rynearson, the driver was not charged with a crime.

8.  And now for a very important difference:  The Supreme Court of the United States stated that suspicionless checkpoint stops like the stop in Rynearson were ordinarily a violation of the Fourth Amendment's stricture against "unreasonable searches and seizures" since drivers were seized absent individualized suspicion of any crime, but the High Court made an exception to that rule and justified the exception by guaranteeing that these exceptional stops would be brief and present a "quite limited" intrusion into inquiring into immigration status only, and assured Americans that this breathtaking change would be no big deal (ie de minimis) since any detention beyond the brief time to inquire into immigration status would require probable cause for a crime or the consent of the driver.  This differs from stops, like the initial stop in Rodriguez, which are based on reasonable suspicion of a crime and therefore do not violate the Fourth Amendment, so long as they stay focused on the mission or scope of the stop, as they are based on individualized suspicion of a crime.

As it stands now, however, due to recent about-face judicial practice at the Fifth Circuit Court of Appeals (despite clearly established law to the contrary in that circuit), Americans have less protection when law enforcement forces itself into their lives without suspecting them of any crime, than Americans have when they are detained by law enforcement who have detained them with individualized suspicion of law breaking.  How is that even remotely possible given the Supreme Court carving out these exceptions in Martinez-Fuerte decades ago?  That's a great question.

Hopefully the full Fifth Circuit Court of Appeals will correct the panel majority's unorthodox decision in Rynearson v. United States to bring it into accordance with both clearly established Fifth Circuit precedent and multiple rulings by the Supreme Court of the United States.

My 28J letter to the full Fifth Circuit Court of Appeals mentioning this recent SCOTUS decision can be found here.

Wednesday, April 29, 2015

Soldiers Were Crying - They Knew Finally What They Were Really Doing

Their tears mean nothing.  Those soldiers were traitors to the United States of America.  They fixed bayonets and used weapons of war against the people of the United States (treason).  They didn't make good on the oath they solemnly swore to uphold.  They violated the Fifth Amendment to our Constitution.

They used armed military force to round up 70,000 American citizen men, women, and children and transport them to concentration camps without any individualized suspicion or due process of law.

Their tears mean absolutely nothing and their unprofessionalism and lack of concern for the very first duty of military service, to support and defend the Constitution of the United States against all enemies foreign and domestic, is no excuse.  They finally knew?  After taking the most solemn oath to support and defend the Constitution and then thinking nothing about reading or knowing or caring about it?  There is no excuse for that at all.

Don't be like them.  Because you will find yourself in a situation like they did, or worse.  Count on it.

It's worse today than it was then, and in my experience our military folks have learned absolutely nothing since 1942.

Monday, April 27, 2015

PYB and the Fourth Estate

Those who trumpet the mantra of picking battles have never battled...or, if they have, they battle against the American people with their "play the game" careerist message for public servants.

I'm not well suited for the Fourth Estate, but I do what I can to defend America and our rule of law. It's far from easy.  Killing terrorists by the bushel overseas is a much simpler task.

The playlist above contains several of my efforts on national television and radio to peacefully defend the Constitution of the United States from our domestic enemies using the power of words.  Although words and reasoning can reach those who are unaware, sadly words cannot change character and that is the center of gravity in the fight to restore a free America.

We would be wise not to underestimate domestic enemies.  They are a far greater threat to innocent Americans than any foreign enemies I've had the pleasure of servicing.

Saturday, April 25, 2015

The United States Needs a Concentration Camp Board

If we're going to keep sending American men, women, and children to concentration camps, we need a better form of due process for it.

This is essentially what David Medine and Eliza Sweren-Becker stated in a recent article they wrote in a publication produced by Government Executive Media Group.  Except they weren't talking about sending Americans to concentration camps, which the United States Army and President Roosevelt did to 70,000 American citizens while the Supreme Court of the United States justified the camps, and while Americans cheered the camps, and while the ACLU tacitly approved of them through silence.

No, these authors were instead talking about assassinating Americans.  Putting names on a list.  Hunting them.  Finding them.  And killing them.  They weren't talking about taking liberty without due process of law.  The subject of their article concerns taking American life without due process of law.

The article pawns itself off as concern for the rights and safety of Americans, much as tyrannical American laws often are deceptively named in order to appear at first glance to be the opposite of what they actually are.  Medine and Sweren-Becker could not have written a more tyrannical justification for outright fascism in America.  Their recent article is just one more development in a narrative that has been crafted for years now, and which will have the result (if not the goal) of institutionalizing war on the American people.

They do this by employing two key government fallacies in this manufactured debate. 

First is the fallacy that the Fifth Amendment of the Constitution does not require judicial process before the government can assassinate an American.  This staggering claim was offered up by Attorney General Eric Holder during his campaign covering law school campuses, where he attempted to defend his agency's utterly embarrassing defense of government assassination of United States citizens.

The second fallacy is the calculated decision to avoid using the word "treason" in any legal context, to describe the reasoning behind assassinating Americans.  This second fallacy, as I will demonstrate below, is the vital component of the dishonest narrative that has led to the Alice-In-Wonderland claim that Americans can be killed by their government without being sentenced by a jury of their peers, even when they are not actively and imminently presenting a threat to anybody.

Based on these two falacious and un-American points in a manufactured narrative, the authors of the article state:

We must seize the opportunity to institutionalize a more transparent and dispassionate process, defend the hallmarks of due process, and affirm that neither the executive branch nor U.S.-born terrorists are outside the law. We recommend a fine-tuned version of the second approach raised by President Obama: an independent, executive branch review panel designated to assess the evidence against proposed targets and make non-binding recommendations to the President as to whether the targeting is appropriate before efforts are made to kill the targets.

The authors recommend that we institutionalize the practice of putting Americans on a list much more consequential than the No Fly list, then hunt them down, locate them, and then kill them on the spot without a single day in court or a jury of peers.

David Medine and Eliza Sweren-Becker advocate an institutionalized No Life list for Americans.  They claim that their recommendation seeks to "affirm that neither the executive branch nor U.S.-born terrorists are outside the law" but, in truth, they seeks to institutionalize the executive branch as outside the law in the most terrifying way possible.

Let's turn to the first fallacy.  That the Fifth Amendment, which states that the government cannot deprive a person of "life, liberty, or property, without due process of law," does not guarantee judicial process.  We do not need to show the errors of Holder's claim here in order to demonstrate the absolute illegality of the American assassination program.  It's not essential to point out that the Sixth Amendment, right after the Fifth Amendment, continued with "[In] all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..."  Perhaps that was simply a coincidence?  Perhaps taxpayers can abolish the judicial third branch of government's role altogether if Holder's assertion is correct that due process does not mean judicial process.  If he is correct, there is no need for time consuming court proceedings.  All that government need do is have a process, put somebody on a list, and then deprive them of life, liberty, or property.  No need for lawyers to argue two sides to convince an impartial jury.

Of course Holder's first fallacy is disgustingly wrong on its face.  It is also a false equivalency as "due process of law" does not mean a choice between, a) a President unilaterally choosing which Americans he's going to kill, or b) mere "judicial process."  The judiciary having a process does not itself equate to due process of law.  What is required is the open trial and jury of peers guaranteed by the Sixth Amendment.  Carefully selected judges in a secret court rubber stamping kill orders might equate to "judicial process" but such "oversight" most certainly would not equate to due process of law.

But let's assume Holder is correct that due process of law does not mean judicial process with an open jury trial.  Let's assume the two Government Executive Media Group authors are actually on to something with their recommendation that we come up with some "better form of due process" before picking off American men, women, and children from the sky utterly unbeknownst to them or their families.

Wherever would we find some clue as to the due process of law required before government can take the life of Americans through aerial assassination?  This brings us to the second fallacy of the DefenseOne propaganda piece, and it is the most important fallacy.

The second fallacy is refusing, indeed intellectually bending over backwards, to honestly define the accused crime the government is talking about institutionalizing new "due process of law" for.  The crime they will not label in any actual legal context or even in an embarrassing secret memo written by a legally educated sell out, is the crime of treason.

There are only three crimes listed in our Constitution.  Of those three crimes, the Constitution details the due process required within its own text, for only one singular crime.  That crime is treason.

Treason has throughout history been the favored justification of despots and kings to murder and oppress their own countrymen, and so our students-of-history Founders wisely defined treason and then stated the due process required for it, within the very text of the Constitution itself where it could not as easily be meddled with.  Of course that does not mean that text can't simply be ignored.

Treason is defined in Article Three, Section Three of our Constitution, stating "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

Every American targeted for assassination, we are told once the operation is made public, is a person who is suspected of making war on the United States and presenting a threat to America.  Plotting the shoe bomber attack, or being linked to others who are thought to want to attack America.  Why then are they not labeled suspected traitors?  Their suspected actions most certainly fall squarely into the definition of treason.  But instead of labeling them appropriately, they are referred to as "enemy combatants" rather than as accused traitors.  The reason is because it is crystal clear what the required due process of law is for suspected American traitors.  Not surprisingly, it includes an open trial but it additionally (beyond the due process of law the Sixth Amendment already requires before life can be taken by the government) places an increased burden of proof hurdle on the government not required for other crimes.

Article Three continues after defining treason, stating: "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."
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed - See more at: http://constitution.findlaw.com/amendment6.html#sthash.7cK5Tdjj.dpuf
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed - See more at: http://constitution.findlaw.com/amendment6.html#sthash.7cK5Tdjj.dpuf

Not only does the due process of law include an open court and jury, as is required by our Sixth Amendment before life or liberty can be taken from Americans by their government, but it requires a confession or testimony from two witnesses to the act of treason.  That's a high hurdle of due process of law.  It is no wonder why some in government do not like this inconvenient protection of the rights of Americans found in our Constitution.

No drone oversight board, as easily corruptible as any other part of government, will change the fact that 1) Americans believed to be plotting violence on the United States are believed to be committing the crime of treason, 2) the life, liberty, and property of Americans cannot be taken by our government without the due process of law, 3) the due process of law required for taking life is an open trial and an impartial jury, and 4) even if you disagree with the third point, the due process of law required for suspected traitors means an open jury trial with the even higher burden of proof of the testimony of two witnesses to a treason act or confession.

So no drone oversight board will ever lawfully justify assassinating Americans.  Ever.

Neither will any secret FISA court-like rubber-stamp judicial machine be able to lawfully impose death on Americans without the say so of a jury, even though the nightmare scene of sycophants in black robes issuing secret orders in a secret place might be providing the "judicial process" of Holder's false equivalency.  Not even that judicial process can even remotely pass constitutional muster.

What is required to punish treason, and to provide the due process of law, is an impartial jury to make this pronouncement once there has been a confession or the testimony of two witnesses to the same overt act of treason.

There is no debate, other than a manufactured one by those who wish to completely and irrevocably destroy the very essence of America and the rule of law over the rule of men.

Those like David Medine and Eliza Sweren-Becker who, by wanting to institutionalize the killing of innocent Americans (innocent until proven guilty) using the machinery of war (drones carrying bombs and missiles) are guilty of adhering to the enemies of America.

It is no wonder that they are uncomfortable bringing up treason.  Because they are enemies of America, and a case can certainly be made that their article is itself treasonous, as it adheres to those who wish to use military weapons to kill innocent Americans, and their propaganda no doubt provides them aid and comfort.

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

That these two individuals would seek to institutionalize the unconstitutional murder of innocent Americans through an institutionalized fascism on par with any in history, while yet claiming they are are championing the rights of Americans, is not surprising given a brief introduction to their backgrounds.  In their propaganda piece they offer up the Privacy & Civil Liberties Board (PCLOB) as a role model for the "oversight" they seek, and yet that executive agency board is not without controversy.

The Government Executive Media Group has this to say about one of the article writers:

David Medine started full-time as Chairman of the Privacy and Civil Liberties Oversight Board on May 27, 2013. Previously, Mr. Medine was an Attorney Fellow for the Security and Exchange Commission and a Special Counsel at the Consumer Financial Protection Bureau.

The PCLOB the article lobbies should be providing "oversight" to the murder of Americans has so far failed to reign in NSA abuse (to include getting top NSA officials to be reprimanded for committing felonies by lying to Congress), and the track record of the SEC is probably not quite the greatest given the rampant abuses of the financial sector in recent history and today.

The Government Executive Media Group also has this to say about the other writer:

Eliza Sweren-Becker is an intern at PCLOB and a student at Harvard Law School and the Kennedy School of Government.

Of course Tony Carr, who has offered up this treasonous article on his blog and also feigns concern over constitutional violations (while refusing to debate me publicly on his previous claim that he thinks government can violate constitutional rights without amendment if it thinks it is acting in accordance with the will of 51% of Americans), is also a student at Harvard Law School with an obviously insatiable desire to build political power and get a seat at the power table.  It is no wonder he chose this article to buttress his "concern" over violation and to express his desire for "oversight."

Smoke and mirrors, deep financial and government connections, a track record of failing Americans and lying about it despite a for-public-consumption charge of seeking oversight and accountability.  Propaganda for a political purpose.

Wednesday, April 22, 2015

The "I'm Offended By That" Culture Degrades Military Mission

Some describe political correctness and its institutionalized efforts to make people believe or only express party line or popular or mythical "non-offensive" viewpoints, as a "witch hunt."  It's an interesting comparison.  On the one hand of the comparison is the historical witch hunt where state power led to the murder of innocent people (to include Americans), and on the other hand of the comparison is the hyper political desire to root out some fuzzy and ill-defined conception of politically incorrect topics.

One of the more famous witch hunts, at least to us Americans, happened on American soil in Salem, Massachusetts in the early 1690s.  What started as a rumor became an accusation, a ball started rolling and people in positions of power could not be on the wrong side of accusations and so legitimacy was given to claims that one person or another was turning themselves into diabolical creatures and taking on the form of animals and engaging in ritual with the Devil and engaging in black magic.  The hysteria built and soon it was out of control.  Even those in positions of power were accused, and accusers also found themselves accused, and what started off as rumor quickly became a wildfire leading to the deaths of many innocent Americans who, in fact, had not taken the form of a cat or communed with what Al Qaida cave dwellers (and others stuck centuries behind in their development) refer to as a literally existing Devil.  Mass hysteria ensued, and one writer from the time, Robert Calef, discussed the events as:

And now Nineteen persons having been hang'd, and one prest to death, and Eight more condemned, in all Twenty and Eight, of which above a third part were Members of some of the Churches of N. England, and more than half of them of a good Conversation in general, and not one clear'd; about Fifty having confest themselves to be Witches, of which not one Executed; above an Hundred and Fifty in Prison, and Two Hundred more accused; the Special Commision of Oyer and Terminer comes to a period.

It's interesting that those who just "played the game" and confessed to being witches in the face of idiot accusations, were sent to prison rather than killed.  But those with integrity who refused to lie in response to the accusations of the irrational-superstitious who found themselves in a position of power, were simply executed.  Those who denied the claims were murdered.  Those who said "you got me, I'm a witch" were spared.  It's a power issue and woe to the person who is right and has integrity and who challenges stupidity with their "smart" mind, and who always has to get the last word in claiming their innocence in the face of accusations.  Death!

In the modern world, we know that such ghosts-and-goblins accusations, politically powerful and effective as they were at the time, were ridiculous and the product of irrational, or insane, or opportunistic immoral minds.  And yet people who should have known better, went along with these accusations and major injustice occurred on American soil.

So why is a desire to enforce "politically correct" speech so often described as a "witch hunt?"  Certainly in the military, we have rules and regulations that spell out proper and improper conduct.  It is also true that our regulations often leave a massive gray area to allow commanders to punish a wide variety of conduct using administrative & non-judicial (key phrases, as in "non-due-process") punishment.  What exactly is "good order and discipline?"  What are the elements of "conduct unbecoming an officer?"

It seems to me that part of the comparison, as it refers to the military "I'm Offended By That" Culture has to do with the lack of due process (at least for administrative & non-judicial punishment) that characterized the Salem Witch Trials.  Reasoning and evidence do not matter.  An accuser need not rationally or reasonably explain anything.  All that matters is an accusation and people in power positions not wanting to be on the wrong side of an accusation (ie they didn't want to get accused of defending a witch).  This leeway and punitive discretion is necessary for commanders to run their units without being bogged down by due process requirements at critical times, but it does present a framework where political correctness can grow like a cancer unchecked by common sense.

Due process simply means that a fair hearing is required, where the accuser presents evidence of the crime and evidence of the damages and the accused can defend him or herself.  Due process is guaranteed to Americans by our Fifth Amendment, and this guarantee is without a doubt informed by the Founders' understanding of religious persecution both in Europe and on colonial soil.  The "witch hunt" label conjures up (pardon the pun) the idea of lack of evidence and reasoning.  The offended need not explain why they are offended, or what damage their inability to remain un-offended has caused anything, but rather they simply need voice their personal dislike of something by using the magical O-word.  They can mask personal vendettas or religious discrimination or political differences in a veneer of validity by choosing the right buzzwords.  Those in power positions in a politically charged and/or religious environment take note of the climate, and do not wish to be accused themselves of harboring or defending a witch or an "offense giver."  As in Salem, their allowance of hysteria not only hurts the common folk but also puts themselves at risk despite their attempts to hedge their political bets.  The official nod certainly turns the whole town into a bloody mess.

The main factors of the Salem Witch Trials, according to one essayist, "were politics, religion, family feuds, economics, and the imaginations and fears of the people."  I believe these same motivations are often employed in our own Jimmy Kimmel-Super Bowl half-time show-day-time soap opera-Chris Rock watching society to target others one person simply doesn't like, by justifying their dislike with the diabolical crime of "giving offense" via mundane comments.   Otherwise a time machine would have to exist, which leaves behind our modern world of neon lights and President Obama's great comments on self censorship and modern sitcoms, and lands itself back in late 1600s Massachusetts.

It's an odd time machine for sure, that serves some among us who have all the trappings of modernity and yet mentally appear to be transported from time to time back to the value system of a superstitious Taliban-esque cave dweller who still stares at fire with a puzzling look and thinks it's magic.  We must realize that hysteria and irrationality and stupid ideas (which can quickly turn to evil on a massive scale) are still alive and well among us sane people today.  iPhones and genetically grown ears and 3D printers do not change the fact that these weakest-links live among the rest of us and "feel" things and want to impose their unenlightened feelings on others, and yet can't provide a rational, let alone persuasive, argument why.

Then or now, there is no real explanation of what items are offensive or bad or evil that you're not allowed to say, and the clergy of the Order of the Offended still maintains that they shouldn't have to make a list and staple it to your chest for you to know, and they don't wish to engage in a rational discussion on what is verboten or why.  But as is said by the wise man in the link above, a list does you no good, because it's always somebody else's list that you're not given that is the "problem" and even their list changes from day to day.

In the military we have an official list.  Our regulations spell it out.  No discrimination, no sexism, no racism, no homophobia.  But others are not satisfied with that list, and want to enforce on others their own secret and undefinable list.  If you don't know that list, then you lack common sense and if you don't get it, they can't explain it to you.  You are expected to read their minds and know what they don't like and tailor your words to make them personally happy.  That mirky list of "bad" words and subjects that the Offended refuse to share with those who offend them, is their sacred and secret text.  Were they to share the list then others would change their behavior and they would lose out on their prized ability to claim offense and watch others tremble in response.

In our service such irrational hysteria feeds on the fears of people who are unwilling to take an unpopular stand, and it only degrades the mission.  Self censorship as President Obama discusses, beyond the limits presented by our UCMJ and regulation (and there is no regulation that prohibits military members from offending others), degrades morale and trust in an organization and prevents out-of-the-box brainstorming of solutions to difficult problems.  What starts off as one person making an accusation in a To-Kill-A-Mockingbird fashion, ends up with injustice for individuals and destroys the ability of a military organization to carry out its mission.  It destroys the basic trust and morale required for real combat operations (notably real combat units do not suffer from culture of offense hysteria), and it does not offer up hope for resiliency.  Folks fearing that something they say might cause career destroying "offense" to a person (perhaps one competing for a school slot with them) and lead to an unreasonable and unsubstantiated complaint that simply rests on the claim "I'm offended," does not further the defense of our nation.

Such a self-censoring situation is the nightmare scenario of Crew Resource Management (CRM) which concerns itself with mission accomplishment and boasts the need for a thick skin and free information flow.  CRM demands members across ranks and positions not self censor.

Until recently, and some may claim it's the same today, American warfighters were renown for having thick skins.  How could it be otherwise in an organization that literally disintegrates humans and blows their arms and legs off from the air?  But that may change with a hysterical wave of political correctness.  As an article in the American Conservative, Tyranny of the Offence-Takers, relays from Christian theological writer, Alastair Roberts:

One of the immediate effects of the culture of offence is to encourage the thinning of skins, and the raising of sensitivities. Persons are trained to be suspicious to the point of paranoia of all differing viewpoints, a suspicion that enables them to put the worst possible construction on the words and actions of their opponents and critics. Far from representing a triumph of critical thinking, these hermeneutics of suspicion tend to reproduce the same threadbare analyses that have been applied on a myriad previous occasions and create a sterile groupthink…

We would do well to stamp out such irrational, unsupported accusation-is-all-it-takes hysteria from our organizations whenever we see it.  Fortunately our service has done so in one very interesting area.

Sex.  The most taboo of subjects.

The official Air Force website linked above includes an article, "Summit Prepares Airmen to Talk About Sex" and states:

The president and founder of the Date Safe Project spoke frankly about sex at the Sexual Assault Prevention Summit Jan. 14, at Joint Base Andrews, Maryland.  Mike Domitrz conversed with the 150 Airmen in attendance about how to talk authentically and effectively about sex...

For the paradigm shift to take place, Airmen must become comfortable with the subject, and be willing to speak authentically from their own experience. The way Airmen talk about sex matters. People like to talk about sex when it is positive, Domitrz said.  “What if our number one priority is mutually amazing intimacy?” Domitrz asked. “How would that shift the conversation and education?”

While the problem shows up in the culture, the change will occur at the individual level. Domitrz challenged the audience to take every opportunity to provide others a tool that could change their life. Every person you try to impact is their own human being, and it is important to start by at least laying a foundation, Domitrz said.

The once irrationally taboo work place discussion of sex has been replaced with mandatory and regular training where those in the service are required to be part of a group conversation about sex (whether they choose to speak or simply to just listen to others talk about sex in their presence, at work, in a large meeting and in smaller discussion groups).  What about sex is good, when is it not good, lines and continuum, what is consensual, what is okay and what is not okay.  It's an uncomfortable subject for some in the service to discuss depending on their level of maturity and life experience.  Training appears to mandate that the "you may be uncomfortable" disclaimer be presented at the beginning of the recurring SAPR training.  Still the training is required. 

That would have been unthinkable decades ago at the hands of the Offense Takers.  It's just not appropriate to talk about sex at work, they would say, and they might tell you that if you don't understand it then they can't explain it to you.  You should just know why.

The correct response to such people is...  Grow up.  We don't need children in the business of providing airpower to protect America.  Perhaps a paper route or a lemonade stand would better suit you.

Good on the Air Force.  This is a positive development and it's a maturing experience that allows service members to become more adult, despite the challenges they might bring from their personal upbringings, and it allows more mature professionals to better tackle real issues that plague our service including the very real issue of sexual assault and abuse of power.

Except, perhaps, in the minds of the "I'm Offended By That" Culture.  We're not 1690s Massachusetts anymore, and we should be happy about that.

Tuesday, April 21, 2015

SCOTUS Gets it Right - Scope of a Stop Matters to our Fourth Amendment Rights

In a 6-3 decision
, the SCOTUS provided some guidance on its previous decision of Mimms and its use of the term de minimus, making it clear that a federal judge's personal view that a constitutional violation is no big deal does not allow judges to not rule correctly, and the High Court reiterated that law enforcement must be diligent when dealing with Americans, not dilly dally as if they can do whatever they want, stating:

Its tolerable duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop, Illinois v. Caballes, 543 U. S. 405, 407 and attend to related safety concerns. Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been— completed...

In this decision, our High Court found that a 29 minute detention based on reasonable suspicion for a crime, violated the Fourth Amendment when law enforcement detained two Americans beyond the time reasonably necessary for the scope of the stop.  This is common sense in light of our right to not be unreasonably seized, but today there are those who get it wrong and need to be reminded that our Constitution and our law is not simply a suggestion.

This excellent opinion, and example of public servants getting it right, can be read here.

Wednesday, April 15, 2015

Does This Song Make You Want to Rape Somebody?

It doesn't make me want to rape anybody.  But others have a view that this rap song might put somebody on the road to rape.  So is the Seattle Symphony bad for making and releasing this video?  I look at all those obviously well to do, probably mostly liberal musician people, comprised of several ethnicities, and I look at the spectrum of age groups and I cannot see somebody who is on the continuum from inappropriate music and jokes to rape.

Actually, the conductor is a bit suspect, waving his stick all around.  Doesn't he know he might offend some poor unenlightened, insecure, person who never grew up enough to become comfortable with themselves and humanity?  I mean he's waving his wood through the air, in public no less.

And then again, there is Sir Mix-A-Lot.  Oh, the things he says...  If there were a rickety bridge used to symbolize the road from *music or jokes some person doesn't like for some reason, whether that reason is valid or not* to sexual assault and rape, I think in his case that bridge would be the Tacoma Narrows bridge.  Great bridge in a great state.

But hold on now, if we watch this Seattle Symphony music video we see that Sir Mix invites ladies onto the stage to dance with him.  Whoa.  How inappropriate.  What is the forty-five year old violinist lady from Harvard going to think about such shenanigans?  This isn't the 1920s, we're not flappers, show some restraint!

But Mix does say right after inviting ladies up onto the stage, that "I don't touch."  He follows that up by stating, "we will not bite unless you want us to."  This sounds like recent training I have received.  Consent.  Looking at this music video, I don't see any of the diverse group of ladies who go onto the stage looking like they have consumed alcohol.  Are we sure they consented?  I appreciate Sir Mix making it clear that it's all about consent and I'm reassured by him explaining to the "thick soul sistas" that he "won't cuss or hit ya, but I gotta be straight I want to [inaudible] until the break of dawn" because, of course, baby's got it going on.

Still Sir Mix-A-Lot and the orchestra perform a number that is dedicated to, oh my.  Dare I say it?  Sex.  Yes, sex.  That topic makes me so uncomfortable and I'm not sure where this pit in my stomach is coming from.  The best way I can describe it is, oh I dunno.  Offended.

That's one of the best things about deploying... the ability to get away from such offensive music and instead concentrate on killing the enemy, setting them on fire and blowing their limbs off while they scream in agony, and giving them sucking chest wounds while they gasp their last breaths.  If that doesn't take my mind off the hypnotic rape inducing power of acknowledging sexual nature (and I don't care how many psychologists explain that denying human sexuality results in sexual malfunction and perversion), then I study a little history of the greats from the 1940s, and how they evaporated nearly a hundred thousand men, women, children, and babies instantly with an Enola Gay pickle.

Some topics are just not professional to the military person, they're too "offensive."  For those who are unaware, being offended means you don't like something but you don't want to or can't rationally explain why you not liking something means others should shield it from you, and you're unable to explain how something causes you to not be able to do your job professionally due to things you personally don't like.

So what to do?  Surely we must "do" something?  People are offended by things, and that just can't stand.  As I listen to the Seattle Symphony music video above, I realize Mix starts off his performance with these words:

"I like big butts, and I cannot lie."

That sounds like our very first core value.  He cannot lie.  Integrity first.

If we're going to talk about sexual assault and rape honestly, I suggest we follow his lead.  Sexual assault is real and is utterly unacceptable.  That doesn't change the fact that some jokes and topics are offensive to some, and yet are not racist, sexist, or homophobic.  It doesn't change the fact that having a sense of humor does not make one more or less likely to be a rapist.  It also doesn't change the fact that sometimes, yes sometimes, the correct answer is that the "offended" just need to grow up.

Irresponsible "solutions" do not solve problems.  They create them.  Besides that, as Mix tells us in his jingle, "A lot of simps won't like this song." 

We don't want to be simps about an important issue.  Simps don't win wars.

Sunday, April 12, 2015

Requesting En Banc Review in Border Patrol Lawsuit at Fifth Circuit Court of Appeals

I have filed a request for all the judges of the Fifth Circuit to rehear my civil suit against the Border Patrol agents who detained me for thirty-four minutes and called my employer despite me answering all questions and providing them four forms of identification to prove my citizenship.

Hopefully the full Fifth Circuit brings the two-judge majority's decision (one dissent) back in line with Fifth Circuit and Supreme Court case law.

Thursday, April 9, 2015

"Perhaps the Time Has Come to Reinstitute an Old Custom - Grant Them TQM"

"Total Quality Management (TQM)."

TQM is an old Air Force custom and one I was taught in my cadet days twenty plus years ago.  The Air Force raved about TQM and process improvement, borrowing the philosophy from Japanese business as a way to increase efficiency.  The concept of TQM took on joke status among many in the service, and as leadership changed this pre-911 philosophy was sent to the bone yard.  General Merrill McPeak, then CSAF, was besmirched for his silly view of how the air service should do business.

I thought it was a good idea, and in my young mind it was obviously the way to do business.  It championed a methodical approach to a problem or process, one where data was captured, truth was bracketed, problems were identified and route causes investigated and diagrammed.  It cut through the nonsense politics and personal agendas that drive so many decisions in the service with mission and people degrading consequences.  TQM was a philosophical approach that led to solutions being debated, and processes improved, with the overall goal to increase mission effectiveness and lessen the amount of work required to sustain that improved mission product.

The changing Air Force disagreed and the concept of TQM was rarely mentioned after I commissioned.  That wasn't the only thing to change.  Several years later, the events of September 11 changed just about everything in the service.  One of those things that changed most was the ops tempo.  While the slogan "Do More With Less" did not change, the "More" actually did become more, and the less actually did become less.  Less time, more requirements.  Enter resiliency.

Enter the region of reverse command at an organizational level.

Improving processes and streamlining them and making the mission more efficient while requiring less energy, may have seemed simply an upfront expenditure of short term energy for a long term unnecessary goal.  Back before the Twin Towers were attacked.  But it damn sure doesn't seem unnecessary now.  Rather than engage in process improvement back in the fat relatively peaceful days, like storing up for a winter, our service squandered an approach that would have served our combat service well today.

Now people are swamped, over worked, and often simply want to endure an eight to ten to twelve hour day with their presence rather than using that time to improve the process and give themselves more wiggle room to work less in the future while still producing better results.  They have their heads barely above water and they're just trying to stay afloat.

Like an aircraft in the region of reverse command, flying slower but burning more energy in the form of jet fuel.  If the aircraft can just accelerate enough to plane the nose over, it can actually fly faster, with better performance, and also save gas and cost while doing so.  But it takes a bit of extra energy in the beginning to make that happen.  Many in the service today don't have that extra energy, or at least don't think they do.

Or, more often, they think if they put in the extra work they won't get to save gas.  They'll just be asked to fly even faster where they are burning more gas than they were in the region of reverse command, so what's the point of working harder in the short term?  They're often not wrong.  More claims from above of the mystical packing ten pounds in a five pound sack do not encourage process improvement.

What TQM would have taught us is that we shouldn't measure our productivity by the gas we burn, but by the speeds we achieve while saving gas.  A well functioning organization that inspires creativity and rewards mission accomplishment, along with process improvement and mission enhancement, by allowing service members to share in the fuel savings (their time) wins on both fronts.  The mission improves and people have more time for things like, oh I don't know, doing the only things that actually truly make people more resilient and happy.  Things like a social or family life and rest and activities that do not require a reflective belt or a computer monitor.

Sadly, many times in my career, I have noticed that those who most tout "improving" something are not actually trying to improve anything other than the perception that they improved something translated into a career rewarding performance report bullet.  Change for change's sake.  It's all over our Air Force and the results cannot be missed as A is changed to B, and B is changed back to A, and repeat and repeat.  TQM training would actually give those desiring to improve processes the tools to rationally do so if they were actually interested in improvement beyond their promotion chances.

There are few of us left in the service who have even heard of Total Quality Force Management.  But there are many who are interested only in the perception of improving things.  And many others who just want to show up and get it over with until they can get out of what is deemed a sinking ship, to go seek greener pastures.

If we can ever get some breathing room back, I think it's time for the Air Force to reinstitute an old custom.  Grant them TQM.