New Year's Eve

Made it home from the cabin, off to a New Year's Eve party tonight at the house of some friends. I'm feeling a little bit down right now, but I should be able to cheer up more tonight or tomorrow.

Up at the Cabin

Relaxed at the cabin yesterday with friends. Played Cranium, went to see "National Treasure," watched episodes of "The Office" on DVD, went out to eat at Uno's. A good time was had by all.

Skiing at Wisp

We drove up to the cabin on Friday for a ski weekend at Wisp. David drove most of the way, and did a good job. We watched episodes of "The Office" on DVD on Friday, and spent most of Saturday skiing. Photos will be posted later.

The Tiger Attack

For some reason, I am fascinated with the story of the Tiger attack on three young men in San Francisco on Christmas Day. The tiger escaped from his pen, killed one young man and mauled two others before being shot by police.

My first reaction was to sympathize with the tiger and criticize the young men, who were probably taunting the tiger. There is some circumstantial evidence to suggest taunting, such as (1) the fact that young men, aged 17, 19, and 23, were even going to the zoo. Men that age often do dumb stuff; (2) they were there on Christmas Day, around closing time, which could suggest that they planned to be there on a day and time when there would not be many people there; (3) there is some evidence that things had been thrown into the tiger pen, like rocks and sticks; (4) a shoe print on top of a short retaining wall. If some idiot taunted the tiger and got killed, my reaction was that Darwin was right and it is a good thing that an idiot like that it removed from the gene pool.

As more news comes out, however, it appears that the zoo was somewhat negligent. It appears that the walll across the moat was only 12 feet high, which could be reached by a tiger, especially if a leg was dangling over the edge. The tiger had attacked a zookeeper before, so the zoo had some notice that the animal was dangerous. I think it is quite likely that the boy's parents will sue the zoo and the city of San Francisco for negligence, and although I do not know California law on comparative negligence, it seems to me that the boy's family has a reasonably good case. Because the boy's parents are divorced, it will be brought on behalf of the boy's estate and the parents will proably split a settlement 50/50.

In my reading about this case, I was referred to the book "The Life of Pi," a novel by Yann Martel, about a young man who is stranded on a small boat with a large Bengal tiger. I have just started reading it, but so far it is outstanding and I can see why it won the Booker Prize in 2002 for outstanding English fiction. I had heard of this book when it was first published--the title character is named Piscine, but he takes the nickname "pi" after the number because it is easier to pronunce.

McCain on Bhutto assassination

Here is John McCain's statement on the Bhutto assasination.

Another twist

So now my team leader, Mike, has announced that he is going back to the Department of the Army after less than one year at DISA. I applied for Mike's position early in 2007 when Mike was selected, and will surely do so again, because it is a promotion opportunity. The problem is, I will be in Kuwait at the time of the application, and DISA may not select me because they need someone immediately.

Christmas: The Details

James Lileks is one of my favorite writers. It is partly because his life somewhat tracks mine. He is about my age, has lived in North Dakota and Minnesota (near the University of Minnesota), and has a daughter about my kid's age. Yesterday he wrote a nice column about a Lutheran Christmas. Garrison Keillor is an unfunny hack compared to Lileks.

Merry Christmas

Merry Christmas to all! We spent a quiet day, opening presents, playing our new "Guitar Hero" game, and spending the afternoon with friends.

The Theology of "I am Legend"

David and I saw "I am Legend" today. It was a good, scary, move, and Will Smith does a fine job as always.

Rebecca Cusey, who blogs at The American Culture notes that there are some theological messages in the film. Like Job, the Will Smith character questions the existence of God when he is faced with trials and tribulations. Even when he comes into contact with another human being, he instead puts his faith in Bob Marley, who has a more secular hope of racial harmony. I noticed some subtle crosses in the movie too, which traditionally are believed to ward off vampires.

Mary, did you know?

Here's a nice video of "Mary, did you know?" sung by Clay Aiken.

I was interested to see that this song was written fairly recently, in 1990.

Curt Schilling has a blog

One of my favorite pitchers, Curt Schilling, has a blog, that he calls 38pitches.com.

Why do I like Curt Schilling? Well, of course he is a great pitcher, first with the Orioles, Phillies, Diamondbacks, and now with the Boston Red Sox. He pitched a one-hitter last year, and he was on my fantasy baseball team.

He also is smart enough to blog, and also is gutsy enough to appear on Jeopardy! He does a lot for charity, including raising funds for ALS (Lou Gehrig's disease). He has endorsed John McCain, and some have even suggested that he run for the U.S. Senate in Massachusetts after his playing days are over. What's not to like?

Favorite Christmas carols at the mental hospital and the diagnosis

Parties

Here are some pictures from some recent parties. The top two are coworkers at today's holiday party. The third one is the gift I received at the gift exchange. Thanks, Santa!

The last two were taken about a month earlier, at the going-away party for my former boss. One is of me with the boss who just left and my current team leader. The last one is me with my previous boss, who retired in the spring.

John McCain's Christmas greeting

I like John McCain, so I would be remiss if I did not post his well-done Christmas greeting.

Hillary's Holiday Greeting

It seems to me that this holiday greeting from Hillary Clinton will completely backfire.

It's bad enough that she treats all these costly new government programs as gifts to be given when it's NOT HER MONEY but is the taxpayer's money. It seems to me that if you are giving a gift, you should give it with your own money, not someone else's money.

It is also has a dud of a message, with the "Happy Holidays" graphics at the end that look like it was designed by the Lord of the Rings. I can just bet that she had a committee saying "should we say Merry Christmas or Happy Holidays--mustn't offend anyone. You know what? The whole idea behind this ad offends me.

Contrast this ad with better ones from Mike Huckabee, Rudy Giuliani, and Barack Obama.

Red Tape!

Today I got an email from the HR specialist handling the Kuwait position. He said that he needed (1) an official transcript and class rank from my law school; (2) a self-certification that my fitness to practice law has never been challenged and a bar certificate of good standing; and race and national origin information.

Talk about red tape! I graduated from law school 21 years ago, and I do not have that information handy. I will now have to get this information from the University of Minnesota, which could easily take two weeks. You would hardly know that we are fighting a war when this is the hiring process.

Advice for a Job Hunter

Today I got to work and there was an email from an attorney looking for a job. My name was given to him by a DISA employee. He was asking me if I knew of any openings for "attorney's investigating or overseeing US government contracts in the Middle East."

Let me pause for a moment and say that while I appreciate this individual's interest, I am disinclined to assist an attorney who does not know how to use an apostrophe. Maybe it is just me, but it just shows a certain carelessness and sloppiness that I do not like.

I have not responded to the employee's email, but the traditional way people look for government jobs is http://www.usajobs.gov. I have found, however, that it is more effective first to look at yourself and your skills by reading "What Color is Your Parachute" by Richard Bolles. I also like "The New Rules of the Job Search Game" by Larson and Comstock.
In my opinion, the key to finding a good job is to first know yourself--that is, who you are and what you want to do. Second, identify employers who could use your skills. Third, when you do get an interview, research the HECK out of that employer (which is where many people fall short). Read their annual report. Read newspaper and magazine articles about them. What problems are they having? What challenges? What is coming up?

When I interviewed for my current position at DISA, I knew that they were having challenges with BRAC and NSPS, and of course waging war. I knew about major telecommunications contracts they were awarding or were planning to award. And this was all through reading publicly-available information.

If an individual is looking for work "investigating and overseeing US government contracts in the Middle East," I would start by reading some reports at http://www.gao.gov; Inspector General reports for relevant Defense and State Department agencies; relevant Congressional reports (including the Congressional Research Service); and of course reading sources like the New York Times, the Wall Street Journal, the Washington Post, and govexec.com.

Third Sunday in Advent--still waiting

They say that Advent is a time of waiting--I can relate. I'm still waiting for news on when I will go to Kuwait.

One of the images left with me from Emmanuel Lutheran Church dealt with deserts, and the lion and the lamb laying down together. We can be assured that wherever we are, God is with us.

Joke of the Day

Q: How many kids with ADD does it take to change a lightbulb?
A: Wanna ride bikes?

Today is Santa Lucia's Day!

In Sweden, this festival honors Saint Lucy. It marks, together with Advent, the beginning of the Christmas season. Today it is celebrated mainly in Scandinavia and southern Europe.

In traditional celebrations, Saint Lucy typically somes as a young woman with lights and sweets. Usually she wears a crown of candles, symbolizing fire that refused to take St. Lucy's live when she was sentenced to be burned. Usually a song is sung to the Neopoliatan song Santa Lucia, with Scandinavian lyrics fashioned for the occasion. After finishing the song, the procession usually continues with Christmas Carols or other songs.

The tradition began when Scandinavian countries were Catholic, but continued even after the Reformation. According to the Julian calendar, the night of Lucia was the longest night of the year, and the idea of light overcoming darkness was very appealing.

Decline of the west

Pentagon "running on empty"

The Defense Department officially notified Congress yesterday that the department will begin the furlough process for civilian employees of the Army, the Marine Corps, and combatant commands.

The furloughs will become necessary if Congress does not pass a global war on terror spending bill.

The finger of blame needs to be pointed at those reponsible, primarily Congressman David Obey (D-Wis.) and Senator Robert Byrd (R-W.Wa.)

What is Congressman Obey smoking?

Congressman David Obey (D-Northwest Wisconsin) is the Chairman of the House Appropriations Committee, and as such is partially responsible for the stalled war funding bill. Last night he said that "If anybody thinks that we can get out of here this week, they're smoking something illegal."

Obey likes to use this line. On March 7, 2007, he used the same line against a Code Pink protestor that was captured on YouTube.

Obey likes to portray himself as a populist truth-teller, but I wonder if his constituents in Northwest Wisconsin will ever get tired of his shtick and tell him to stop posturing and get to work.

His proposal to pass a bill without any earmarks is a complete non-starter. His colleagues will fight for their earmarks. Incidentally, I do not believe that earmarks are necessarily bad; they lubricate the wheels of Congress. They should be fully disclosed, however.

A better solution is the one proposed by Sen McConnell (R-Ky) which calls for $70 billion in war funding with no strings attached; a 1% cut in all domestic appropriations bills; and allow lawmakers to keep their earmarks.

Oh, there are special Congressional elections today in northwest Ohio and the first Congressional District in Virginia (which is a swath of eastern Virginia running from Fredericksburg to Williamsburg), but you'd never know it by reading the Washington Post's politics page. They are spending so much time focusing on an election a year from now that they can't spare a paragraph on one that occurs, you know, TODAY.

Due Process for Jihadists?

Andrew McCarthy has another good article in the Weekly Standard on the enemy alien habeas corpus cases. He makes a very persuasive argument that the framers would not have conceived that habeas corpus would have been available to aliens held overseas.

Professor Orin Kerr is wondering, after last week's certiorari grants, if the Supreme Court would be taking "lots and lots" of habeas cases, both because it wants to get involved and because it is not busy with other cases.

I do not know how much clearer Congress could be when it said that it said that the jurisdiction-stripping provisions of the Military Commissions Act. Section 7(b) of the MCA says that it applies to "all cases, without exception." The D.C. Circuit likened it to Congress slamming its fists on the table shouting, "when we say all, we mean all,without exception!"

Congress has rarely found it necessary to emphasize the absence of exceptions to a clear rule. Indeed, the use of "without exception" to emphasize the word "all" occurs in only one other provision of the U.S. Code. See 48 U.S.C. 526(a).

If the Court rules that it has jurisdiction under the Constitution; that its jurisdiction extends overseas; and that the MCA is not equivalent to the common-law habeas corpus remedy; and it persists in assuming habeas corpus jurisdiction, one can expect a reaction from the political branches (Congress and the President). Congress and the President have already attempted jurisdiction-stripping; there is probably no basis for impeachment; term limits could probably not be imposed; one could probably imagine another effort to expand the Court to 11 to give the President two more appointments.

If the Court rules in favor of world-wide habeas jurisdiction, there would be no distinction in holding enemies overseas and holding them in the United States. Hillary Clinton, if she is elected, has promised to close Guantamo, presumably moving them to somewhere like Leavenworth. She had better hire lots of lawyers in the Justice Department, because they will be traveling all over the world, wherever prisoners of war are being held, defending against habeas corpus actions.

The "Legalization" of War

One of the themes that I have been interested in is the "legalization" of war, namely the degree to which uncertainty or fear inhibits military commanders from acting. We have seen this somewhat in detention cases, where challenges to detention have been brought, even seeking habeas corpus where foreigners are detained abroad. It is a significant change from previous wars, where the United States held 400,000 German prisoners in the United States and elsewhere. Some books that have influenced by thinking are Jack Goldsmith's "The Terror Presidency;" Eastland's "Energy in the Executive;" Posner's "Not a Suicide Pact: The Constitution in Times of Emergency;" and Rehnquist's "All the Laws but One: Civil Liberties in Wartime."

If detainees can challenge their detention in court, it is possible that soldiers may decide to kill detainees rather than take them captive. I am troubled by suggestions that military commanders may need to have a lawyer at their side to advise them on targets and other policies that properly belong to a military commander.

There were three new developments last week that are actually related. In the first, the Supreme Court took up two more habeas corpus cases, in which U.S. citizens apparently supporting the enemy were detained by U.S. forces, and then turned over to Iraqi courts. The detainees are seeking habeas corpus in United States courts, even though they were captured in Iraq. I had thought this was already decided against the detainees by a WW2-era decision, but apparently the Supreme Court wants to revisit the issue. This is a separate case from the Guantanamo cases mentioned below. I am troubled that a U.S. District Court would want to consider whether an individual could be detained by coalition forces half a world away. Would it want to take testimony from the soldiers who detained them? It seems rather impractical.

The second thing I would like to comment upon is that new National Intelligence Estimate. First, I am surprised that this sort of thing is even made public. I tend to agree with John Bolton that too many CIA people want to make policy and there seems to be some unlawful leaking going on.

Finally, I would like to comment on the apparent destruction of videotaped interrogations of (apparently) Abu Zubaydah and another Al Qaeda operative. If a videotape showed that he was being impoperly interrogated or otherwise mistreated, it could have an effect on a military prosecution of him (apparently Zubaydah was a 9/11 planner and the other detainee was a planner of the USS Cole attack in 2000). Of course, the United States does not have to put detainees on trial; but it could cause a court or military commission to throw out the charges. Therefore, I agree that there needs to be an investigation--and it looks like there will be one, both by the Justice Department and the CIA Inspector General (who is a St. Olaf grad :)).

I am not sure I would agree that criminal prosecution is warranted, however. Let's say that the CIA destroyed the tape to protect the identity of its interrogators; its interrogation techniques; or its methods, such as "false flag" techniques (like pretending to be interrogators from Saudi Arabia or elsewhere). I could see that you would not want to have this information fall into the hand of the enemy. At the same time, anyone who ordered the destruction of evidence should be accountable for what he or she did, but probably not criminally prosecuted. I believe that the CIA Inspector General and the Justice Department will do an adequate investigation, and there is no need for a "special prosecutor" unless it is shown that the CIA Inspector General or the Justice Department cannot impartially conduct the invesigation.

Second Sunday in Advent

Today's Gospel was the story of John the Baptist -- "prepare the way of the Lord."

This is a time of preparation--everyone is busy preparing for Christmas, I am preparing for my trip. Sometimes we are so busy preparing, and other times we get grumpy or discouraged. It's easy to lose sight of what Christmas is all about--the stores and radio stations downplay the true meaning of Christmas. One remedy is to listen to some sacred music -- a performanc of the "Messiah" or perhaps a Christmas cantata.

Christmas party

We hosted a Christmas party last night. It was supposed to be a Christmas party and bon-voyage party, but because my departure date is up in the air, it turned out to be a Christmas-party-bon-voyage-whenever-you-are-going-party. We probably had forty people here, and a good time was had by all. Here are some pictures.

Pearl Harbor Day

Today is Pearl Harbor Day. On this day in 1941, America's Pacific Fleet was attacked and more than 2,400 American lives were lost. Here is the President's proclamation.

My generation's equivalent to Pearl Harbor, of course is the 9/11 attacks in which 2,974 people died.

I just started reading Richard Brookhiser's "What would the Founders Do?" It says that George Washington lived through a much worse attack on New York City. More than 10,000 Americans were taken prisoner and died on filthy British ships harbored in New York harbor.

Let us never forget.

Some War funding after all?

Some background: The administration has asked Congress for funds to prosecute the wars in Afghanistan and Iraq. The House passed a $50 billion spending bill, but conditioned the money on withrawal of troops. The Senate has been unable to pass its version of the bill, and the President has asked for a clean bill without troop-withdrawal conditions. The failure to provide funding has forced the Army to begin preparations for layoffs of civilians and contractors. Some union contracts require 60 days notice, so some layoff notices would need to go out before Christmas.

MSNBC is now reporting that Speaker Pelosi is saying that there will likely be money in an end of year spending bill targeting civilian Defense Department employees. They also might condition the money as limited to Afghanistan operations, and not Iraq operations.

Congress certainly has the power to do this, due to its constitutional power of the purse, but it must realize that its continual delays make it difficult for federal agencies to plan for the fiscal year (oh, by the way, the current fiscal year is nearly one quarter over and most federal agencies do not know how much they may spend).

People keep asking me when I will leave for Kuwait. I had thought it would be around now, but now it is looking more like after the beginning of the new year.

The Guantanamo Cases

I listened to the oral arguments in the Guantanamo cases on C-SPAN today. As you may know, the issues are essentially (1) May the Supreme Court or lower federal civilian courts hear habeas corpus petitons brought by non-U.S. citizens detained on foreign soil (and, more specifically, detained at the Guantanamo Naval Base in Cuba); (2) Is Guantanamo sovereign U.S. territory or is it Cuban territory; and (3) do the Detainee Treatment Act and the Military Commission Act (passed by Congress and signed by the President), which allows Combatant Status review tribunals and review by the U.S. Court of Appeals for the D.C. Circuit) an adequate substitute for habeas corpus?

One must start with the Constitution, which says that the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it. Article I, Section 9.

One could argue that we were "invaded" on 9/11/01, so it was proper for Congress and/or the President to suspend habeas corpus.

The government, however, is saying that there /is/ no privilege of habeas corpus for persons captured overseas in a conflict, and courts have never recognized such a right. Justice Scalia asked Mr. Waxman to identify a case where a court (either American or English) has granted habeas corpus in such a case, and Mr. Waxman pointed to a case entitled the "Three Spanish Sailors." I do not know what that case says, so I presume that the Court, in some cases holds that foreigners detained overseas are entitled to habeas corpus.

This, of course, raises concerns that persons detained in Afghanistan or Iraq could file habeas corpus claims in U.S. courts. Mr. Waxman and his colleagues say that habeas corpus claims may be filed by persons detained on U.S. sovereign territory, and that Guantanamo is U.S. sovereign territory (of course, that's what they say /now/. I suppose the next step will be to file habeas claims on behalf of persons detained in Afghanistan or Iraq. This claim may already be decided, because five justices in Rasul v. Bush already said that Guantanamo is essentially U.S. territory.

Finally, the petititioners say that the CSRT/D.C. Circuit review process is an inadequate susbstitute for habeas corpus. The solicitor general did a good job saying that the procedures exceed those at common law, but Mr. Waxman did a good job at the end telling the story of a German detainee who was detained for terrorist associations and was not given the name of the person who he was alleged to have associated with.

I suspect that the four liberal justices plus Justice Kennedy will conclude that the CSRT/D.C Circuit procedures are adequate, but that they must afford detainees procedures such as the ability to see evidence against them; the right to an attorney; and full-scale review by the D.C. Circuit.

My problem with this approach is that it takes power away from the "political" branches (Congress and the President) and gives it to unelected judges that may or may not be able to react to changing conditions. Presumably, the court would conclude that the habeas right attaches when the detainee sets foot on U.S. sovereign territory. This will force the military to detain individuals who it does not want the possibility of release to detain individuals on soil that it does not control.

I could see a situation where a rapidly-changing war causes certain bases to be overrun by the enemy. For example, what if Cuba or Venezuela launch an attack on Guantanamo in an attempt to free the prisoners? And what if the courts order the U.S. to release the prisoners? Does the government just open the gate and let them into the Cuban countryside?

I also have a problem with transferring the detainees onto U.S. soil, as Hillary Clinton and others have suggested. Not only is there a problem of litigation, there is a possibility of escape onto U.S. soil. As in any other conflict, there is nothing wrong with holding enemy combatants until hostilities cease. To anyone who says "close Guantanamo," they should be required to say what they would do with the detainees.

Army Civilians Could Receive Furlough Notices by Christmas

According to this news release from the Department of Defense.

Meanwhile, Congress continues to dither and delay.

Funding the war

This is pretty self-evident, but the President is Commander-in-Chief, but it is the Congress' responsibility to appropriate funds to fund the war. In fact, the Constitution, in Article I, Section 9, prohibits spending money unless it has been appropriated.

Why do I mention this? Because as of this date, Congress has failed to appropriate funds for wars that it authorized (I use the word "wars" because technically there were two authorizations for the wars in Afghanistan and Iraq, even though I see it as one war). That is its perogative, but there are consequences to Congress' failure to act.

One consquence is that the Defense Department must begin planning for when the funds run out. With no funds provided since the beginning of the fiscal year, the Army has had to shift funds from other accounts to finance the war.

On November 26, the Vice Chief of Staff of the Army directed all Army commanders and agency directors to begin planning for reduced Army-wide operations, and to minimize Operations and Maintenance funded activities not required to protect the life, health, and safety of occupants of Army installations, or required to maintain assets vital to the national defense. Detailed reports of thie review and planning effort by installation commanders are due back to the Vice Chief of Staff by today.

The Army expects to exhaust all operation and maintenance funds by Feb. 23, even after considering a reques by DOD to move over $4 billion from Navy and Air Force personnel accounts and the Army's working capital fund.

The Army Vice Chief of Staf directed Army commanders to be prepared to "warm base" all Army installations and commands to minimal essential levels; furlough Army Civilians after mid-February; curtail or suspend contract expenditures; and discontinue all routine operations funded by OMA dollars.

This is no way to run a war; and the finger of blame needs to be pointed directly at House Speaker Nancy Pelosi; House Majority Leader Steny Hoyer; and Senate Majority Leader Harry Reid.

I agree with this commentary by Sens. McCain and Lieberman.

Today at the Supreme Court

Today I had the opportunity to attend oral argument in an age discrimination case before the United States Supreme Court. Today's case, Sprint/United Management v. Mendelsohn, asks whether the 10th Circuit Court of Appeals erred when it appeared to adopt a per se rule allowing the admission of so-called "me too" evidence (i.e., evidence by other employees saying they, too, had been subjected to discrimination.

The questions by the Justices indicated that they were troubled by absolute rules either allowing or prohibiting the admission of "me too" evidence. They are likely to set forth a rule requiring weighing of the probative value of such evidence against the possibility of prejudice. Most of the justices have not tried a case in a long time--and it showed. Justice Breyer even admitted that he had not tried a case in a long time when he was questioning the attorney for the respondent. It would be nice if the next President would nominate justices who had tried a case in the previous ten years. This is one issue in which Rudy Giuliani shines--he knows what it takes to try a case before a jury, and he has promised to make judicial appointments a priority.

It was also noteworthy that the Solicitor General introduced the new Attorney General, Michael Mukasey, to the Justices.

Minnesota Twins notes

Well, Torii Hunter is gone, and Johan Santana could be next. There's the usual hand-wringing about how small-market teams cannot afford to compete with large-market teams, but when you remember that Twins Owner Carl Pohlad is one of the richest people in America, you realize that it is not about a lack of resources, it is about an unwillingness to put those resources into the team.

First Sunday in Advent

Today is the first Sunday in Advent. I see that Minnesota got quite a bit of snowfall yesterday. However, that is not enough to stop the St. Olaf Christmas festival. Go see it if you can! There is also a live simulcast in theatres around the country and broadcasts via public radio.

Busy Saturday

Paid bills, put up Christmas lights, blew leaves, ran errands. Just another busy Saturday.