Wait. What? A sea lion, only the most recent of half-a-dozen this year, has been sentenced to death because he ate salmon at the base of a federal spillway, which is a federal offense. The first court petition on behalf of the sea lion was rejected because animals have no standing under the law.

This current spate of ever-diligent federal officials using high-powered rifles to teach sea lions a lesson in respect for federal property is just one of a series of challenges facing the creatures. Mexican fisherman are talking about organizing a mass slaughter of sea lions, unusual numbers of sick and dying sea lions are showing up along the Central Coast, and poorly understood oceanic forces have caused oddities in migration patterns of the animals.

Although some might find the wanton shooting of foraging sea lions outrageous, government agencies are not prohibited from killing animals whose activity, behavior, or even mere existence is deemed at odds with public safety or policy, even in some cases when such an individual execution or mass culling is contrary to statutory protection of the species in question. Constitutional law assigns no inherent rights to non-humans (unless those non-humans are corporations, of course). That means the condemned sea lion will soon be some dutiful and fearless federal rifleman's bullet sponge.

Still, however, a few concerned citizens might reasonably comment that the feds are shooting a sea lion for eating salmon where he wasn't supposed to.

That's right, the feds are going to kill a sea lion who ate salmon.

REALLY?

Yes, really.

Remember: except for federal, state, and local law enforcement officials, along with the President, the Vice President, Members of Congress, and thousands of bureaucrats who just follow orders for the good of the country, the rule of law applies to everyone.

Even to those who have no standing under that law.

Despite federal courts having rejected the same efforts by the Bush Administration, the Obama Administration is refusing to let reporters see records of who is visiting the White House. Lacking any particular creativity in crafting an argument for such secrecy, Obama's people are using the old Bush argument that the visitor logs are not Secret Service property that would be subject to the Freedom of Information Act, along with the fatiguing claim that the President must be free to meet with people to discuss hush-hush, important president-type business without worrying about who's going to find out that hush-hush, important president-type business was being discussed.

This little episode might force me to change my mind about the presidency of Barack Hussein Obama, which I have been characterizing as "Authoritarianism without the Incompetence": it seems that incompetence is rather more of an embedded principle of authoritarianism than I had thought.

Oh, and by the way, as I've pointed out in the past and herewith repeat just for the record: "Hope 'n change," my ass.

The Supreme Court without comment has rejected the appeal by James Pietrangelo of a federal court ruling dismissing his lawsuit against the United States Army for discharging him under the military's "Don't Ask, Don't Tell" policy, in effect since 1993.

Although the First Circuit Court of Appeals had dismissed Pietrangelo's lawsuit, a separate ruling from the Ninth Circuit Court of Appeals in a parallel case gave Pietrangelo a foundation for appeal to the nation's high court, based upon the Ninth Circuit's reasoning that a 2003 U.S. Supreme Court ruling striking down a Texas anti-sodomy law opened the door for review of other cases where laws effectively target homosexuals.

In Pietrangelo v. Gates, however, the nation's highest court chose not to review the First Circuit Court decision against Pietrangelo, deferring to the will of the Pentagon, which is resistant to any erosion of its anti-gay policy. Perhaps more surprising to those who still believe that Barack Obama is a progressive, the White House, itself, prevailed upon the Supreme Court in the case, despite its public claim that "Don't Ask, Don't Tell" is under review.

From CNN.com comes this note from the Associated Press on the Supreme Court's decision in Pietrangelo v. Gates:

"The Obama administration had asked the high court not to take the case, and White House officials had said they would not object to homosexuals being kicked out of the armed services."

The President who has described the standing "Don't Ask, Don't Tell" policy as "abhorrent" and "counter-productive" is at the same time prevailing upon the United States Supreme Court to protect that policy from judicial review, citing the well-worn argument that the armed forces need "group cohesion" and "discipline," neither of which, according to the White House, now, can be accomplished by the best military in the world if gays and lesbians are soldiers.

The gap between Democratic presidential candidate Barack Obama's high-minded, progressive rhetoric and President Obama's operational policies is becoming a veritable chasm that only the most ardent of his supporters can deny. In matters ranging from his fight to prevent release of detainee abuse photos to his penchant for appointing indisputably incompetent insiders like former New York Fed Bank President Timothy Geithner as Treasury Secretary, Mr. Obama has displayed a willingness to play by the rules of the Beltway establishment many who voted for him specifically and earnestly expected him to vanquish.

It remains to be seen whether or not the new friends and supporters Mr. Obama is courting with his non-progressive, authoritarian, and conservative appointments, decisions, and policies will be sufficient to replace those among his previous supporters who finally, before the next general election, come to figure out the difference between soaring rhetoric and concrete actions.

For his own part, the President may very well find that currying favor with entrenched, conservative, establishment forces within the military, economic, and political communities yields only a meager cache of new friends among those who have run Washington for too long. His far greater chance of a second term will be from the prospect that the liberals and progressives he is now ignoring — and thereby alienating — will have become too accustomed to the abuse of their trust to think they have any option other than to continue supporting the man in whom they placed so much hope and got in return only so much facile lip service. On the other hand, perhaps by 2012 the progressive community will be able to appreciate that a deep shadow cast by bad governance is not remedied by bad governance of a shadow made lighter by the false sunshine of unfulfilled assurances.


The Dark Wraith will surely mince no words in persistent reporting on the difference between a good President and an establishment authoritarian cloaked in the fineries of empty rhetoric.

Bush Administration Attorney General Michael Mukasey collapsed this evening while speaking at a meeting of the Federalist Society, a Right-wing extremist legal group from which President Bush has drawn the vast majority of his appointments to the federal bench and other influential government positions. A Justice Department official indicated that Mukasey was "shaking" just before he lost consciousness, which might point to some kind of seizure. He did not regain consciousness right away.

Michael Mukasey was appointed to head the Justice Department in the wake of the resignation of his embattled, controversial predecessor, Alberto Gonzales, who had long resisted calls to step down because of his obfuscation and inconsistent testimony before Congress about the political motivations alleged in the firings of U.S. Attorneys.

Mukasey, himself, was not without controversy when he sat on the federal bench. In the wake of the attacks of September 11, 2001, young Arab men were being rounded up around the country, and one of those detainees who appeared before then-Judge Mukasey on October 2, 2001, claimed through his attorneys that he was beaten while in custody. The immigrant, a Jordanian named Osama Awadallah, was wearing a prison jumpsuit and was in shackles in Mukasey's courtroom when his attorneys told this to the judge. Mukasey, with no medical background, no way to see any bruising on the prisoner's body, and no interest in ordering a medical examination, said, "As far as the claim that he was beaten, I will tell you that he looks fine to me."

A later medical exam found that Mr. Awadallah had, indeed, suffered blunt force trauma consistent with having been beaten.

Mukasey, who sent a number of men rounded up after 9/11 to indefinite detention, never apologized for his handling of that case.

Attorney General Mukasey has reportedly been taken to a local area hospital for treatment of the condition that caused his collapse. It is hoped that he will be in the hands of those with medical training when the determination is made as to whether or not he looks fine.

In a recent article written by Father Tyme at the blog BlondeSense, the suggestion was made that supporters of Hillary Clinton should "stop and think" about their continued opposition to Democratic presidential nominee Barack Obama because "[S]he stands a rather good chance of becoming a Supreme Court Justice" if Obama is elected President. The writer explains: "A very good 62 year old 'liberal' would be in a position to not only help out the country in ways a president couldn't, and for possibly 15 to 20 more years, but it would make the Republicans gnaw their own legs off!"

Suffer me a minor point and attendant suggestion.

For a while—just for a while, mind you—perhaps we could set aside the idea of politically motivated paybacks, quid pro quo motivations, and ideologically driven hopes in appointing Justices to the Supreme Court.

I know, I know: Radical! OUTRAGEOUS, even.

Hear me out.

Perhaps, for just a few appointments, we could seek in potential Justices these three qualities:

a vast understanding not merely of common law but of its evolving arc across time in building an ever more refined rationale of rule by which people should interact with one another both in their capacities as individuals and in their small and large aggregates as groups;

a profound knowledge of the history of statutory law that may guide clear understanding of what laws mean, what intentions were purposely crafted in their enactment, and how that intent in application comports with the United States Constitution;

a keen insight into original intent of the Founding Fathers in writing the Constitution that we may have an unyielding anchor in documentary statement that was written by men of sufficiently great wisdom who were motivated to establish a nation that would not be drawn asunder from external enemies or internal strife.

Concomitant to these qualifications, and acting as an umbrella over them, we would in our search for Justices look for those who could masterfully balance strictly constructionist interpretation of statutory law against the desirable, if often impatient, impetus afforded by time and social evolution to advance the community from early brutishness to later, humane accommodations. In broadest summary of this most important, overarching selection criterion, and without any defect in the above three requirements, every person considered for position on the high court would always, unfailingly be dedicated to preserving at all possible opportunities the underlying interest those founders of this republic had in finding the means by which natural law could be respected in the maintenance of a civil, well-ordered society.

That last, overriding criterion would be the most important and the most difficult to fulfill because it is the tendency of the ignorant, the rash, and the harsh to imagine that individual freedom is anathema to a maximally civil, well-ordered society. It is not, but it is far easier to find a construction of law that permits license at the expense of order or, as is common in the present time, a construction of law that progressively subordinates freedom to the interest of government in security as a flawed proxy for order.

Such guiding principles in the selection of men and women for the high court would necessarily demand that radicals like Associate Justice Antonin Scalia, ideologues like Associate Justice Samuel Alito, political favorites like Chief Justice John Roberts, and imbeciles of political opportunism like Associate Justice Clarence Thomas be turned away. It is their kind who, in the cacophony of their opinions replacing judgment, beliefs replacing reason, and personalities replacing jurisprudence, deny this nation the opportunity to construct an arc of constitutional law that adheres as closely as possible to the principle that free people accorded their rights under natural law organize to the best nation and, consequentially, the best society.

In fear of bias to the Left, the conservatives cast their lot with the degraded men and women of the extremist Federalist Society.

In fear of bias to the Right, liberals are now planning their response with men and women who might promote this or that agenda.

In neither case, however, do we have any conversation about finding those who would, despite personal affiliations and background, locate a profound, consistent respect for liberty, a deep suspicion of the state in its authority, and a brilliance of mind to walk the narrow and harrowing path that would keep us safe as a nation and free as a people. That conversation is worth having.

As the alternative, we may continue a long, tit-for-tat, debilitating whipsaw of Supreme Court decisions from one case to the next and one era to the next in which event enduring natural law never emerges, while passions, agendas, and plans are paraded as the pale imitation of the rule of law.

I submit that it is in this degraded arc of Supreme Courts that the greatest harm will be done, for it is in this environment, where the rule of law is at auction, that justice cannot be aligned to its gravest duty, which is to hold at bay the ever-waiting state that would prefer obedience at the fist of law to compliance at the behest of freedom.


The Dark Wraith has spoken.

For many years, American conservatives have criticized judicial activists — judges who read into the United States Constitution that which is not in the plain language of the document. This criticism extends to judicial interpretations of statutory law, as well.

In many ways, condemnation of interpretive rulings is disingenuous and simplistic: the Constitution and laws must be understood in the context of how words, phrases, and sentences were used at the time a law was written. Terminology and even word arrangements used in written law are often the product of a highly specialized dialect known only to those with appropriate training; and even the most ardent of strict constructionists cannot ignore the historical legislative, political, and social backdrops against which laws have been written, enacted, and enforced.

Moreover, because the United States legal system is based upon a complex hybrid of statutory law and common law, it is the duty of the judiciary in the United States to ensure the survival of the common law component (established through court precedents) by demanding the privilege of judicial review, as first advanced in the 1803 Supreme Court case, Marbury v. Madison, the practical effect of which was to bind judicial decisions, and subsequent respect by courts for those decisions by stare decisis, to the concept of "constitutional law." It is to the purpose of anchoring court decisions in gravity that, while the Congress may write laws that the President then enforces, the judiciary constructs law as a body through affirmation of its interpretations of the Constitution and the several laws crafted by Congresses from term to term and time to time.

Returning to the matter of simply reading the plain language of the Constitution, this has as much to do with the history of the language as it does with the history of law. The Second Amendment is an excellent case in point:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Late 18th Century writers had the annoying habit of using a comma to separate the subject of a sentence from the predicate, but even setting aside that curious artifact (along with the same penchant as High German for capitalizing nouns), the above sentence is an abomination. It begins with what appears to be the subject:

A well regulated Militia...

Then, a comma shows up, meaning that either the 18th Century scribe is moving on to the predicate, or he is preparing to insert a so-called "non-restrictive" phrase or clause, a string of words modifying the subject but not necessary to the sentence meaning. The second possibility seems to be applicable:

...being necessary to the security of a free State...

Yes, that would modify an immediately preceding subject:

A well regulated Militia, being necessary to the security of a free State...

Okay, we're in business; here comes the predicate:

...the right of the people to keep and bear Arms...

Oh, my. That looks like a subject; but the sentence already delivered the subject way back there at the beginning! Worse, a comma follows this little phrase, and that could be interpreted in one of at least three ways: it could be a comma splice; it could be one of those abominable commas 18th Century writers used to separate subject from predicate; or (and this one is really maddening), it could mean that the entire phrase from the last comma had been a non-restrictive adjective clause modifying a prior subject!

...shall not be infringed.

Well, thank God for the occasional period to end the suffering of a mangled sentence.

Years ago, when I taught English grammar and paralegal courses, I complained to a historian on the faculty about the Second Amendment. He said that, were I to have confronted Thomas Jefferson, himself, with my fussing, he would have casually and quite absently dismissed me with a slow wave of the hand and something to the effect, "You know what I mean."

Well, yes, I suppose so: revolutionaries can be obtuse.

Moving along, the Constitution has plenty more interesting language in store for the unprepared, but it also has extraordinary context invisible to the unknowing. When I tell my students that the Constitution of the United States is a "treaty between the federal government and the several states that form the union of those states," they are entirely perplexed. They have never before heard the Constitution described as a treaty. A treaty?

From there, the situation deteriorates because they have no idea of what I mean by ius naturalis (or ius naturale to remove the masculine aspect).

I explain by beginning with this declaration: "The Constitution grants you NOTHING!"

That seems to fly in the face of everything they know (what little it is the typical American college student knows) about the Constitution. Surely, the Bill of Rights begins by laying out essential rights we are given.

In fact, it does nothing of the kind, and the framers did not intend to "give" us rights via the Constitution or any other document; but to understand why this is the case, we must go all the way back to ancient Greece and then to the Roman political theorists who picked up and ran with an amazing observation Greek philosophers before them had made.

When Greek armies were rocking the known world, communiques sent back to the homeland included documents of peoples encountered. Translating the laws of foreigners was no easy task, but the fruits of such labors revealed something rather interesting about the laws of various peoples: although great variety and variation could be found in laws from place to place, some laws seemed to be just about everywhere. Although it would be the Romans and later scholars who would put a solid conceptual and political framework around the idea, it was quite apparent that a core of principles, embodied in a set of seemingly universal laws showing up from one place to the next, existed.

The Romans would come to call this ius gentium, the law of nations, or, as constructed in statutes, the law that applies to the people regardless of whether they be citizens of Empire or foreigners. St. Thomas Aquinas would later take it one step further and postulate that ius gentium is, essentially, an addendum to ius naturalis, the "natural law" that transcends the vicissitudes of this society or that tribe, positivistically inhering to the collective of humanity and to each within that body.

Truth be told, much of this apparently universal law that had begun to emerge by the Middle Ages in high-minded, grueling complex thinking had begun with those observations of a seemingly universal set of observed laws from nation to nation, and this observation led to what the Romans would later refer to as lex ratio, or rational law. Unknown to the Greeks and their successors, the Romans, that common set of laws that seemed for all the world to point to something transcendent and universal—a ius naturalis—was actually nothing more than the result of many of the peoples being encountered all being bound historically and linguistically to tribes that had long before lived around the Black Sea whose members, in their waves of migration perhaps 3,000 to 5,000 years previously, had gone in every direction, carrying not just their earlier ways, but also a common root language, what modern linguists refer to as Proto-Indo-European (PIE), a hypothetical language upon which a huge number of later languages came to be built in layers as the Black Sea tribes fanned out. Latin and its derivatives, Germanic tongues, Greek, and even Sanskrit have their common roots in PIE. In fact, a regular set of rules about how sounds in one Indo-European language relate to sounds in another language of the super-family was first discovered by none other than Jacob Grimm of the Grimm Brothers of fairy tale fame.

That's interesting in and of itself, but what is more interesting is that the Black Sea tribes were quite aware of the importance of social bindings, and we know this because a large group of words across PIE languages still carry the fossil root of important words that begin with the letter "l": lock, line, ligature, lokk, loc, uslok, Loche, loquet, lineage, and lygos, for example. That last one, lygos, is Greek and suspiciously conflatable with logos, the "logic" used in forensics, which derives from the Latin forensis, meaning (among other things) "legal." The Greeks dearly loved word play, especially to the effect of connecting concepts through devices of letter replacements and rearrangements (what is called "metathesis") in words, as in "Hercules" deriving from "Heracles," he who is anointed of the goddess Hera.)

Law is a binding of people, and the 18th Century French philosopher Jean-Jacques Rousseau, consolidating thoughts of some of his contemporaries, went so far as to postulate a "social contract," an implicit instrument that, unlike a common contract binding one person to another, binds a people to their common state. Each performs duties for the other and anticipates reciprocal benefit in return. In more modern legal terminology, each party to this contract suffers "legal detriment" and contractually enjoys "consideration" as a result. Rousseau used the concept of this social contract to replace with somewhat greater substance in codifiable law the less tangible political reliance upon natural law, itself, that was on the mind of John Locke, his predecessor in political philosophy.

The Founding Fathers of this country were well-versed in the thinking of both the ancients and their contemporaries in Europe. They knew very well that ius gentium as nothing more than a class of laws had conceptually evolved, and certainly not coincidentally, with lex ratio into a firm belief in ius naturalis, law that is timeless. St. Thomas Aquinas was certainly favorable to this idea, and several influential thinkers of the 15th and 16th Centuries—among them, Huig de Grotius in Holland and Francisco de Vitoria in Spain—were advancing a "law of reason" inherent in ius naturalis. Vitoria built the case and criteria for what would constitute just war, deeply troubled as he was by the violence being committed by the Conquistadors against natives of the New World. Grotius dismissed the confinement of ius naturalis to trivial, animalistic rules of behavior like producing and caring for the young; if it exists (and these are most decidedly not Grotius' words, but rather my own), then natural law is undoubtedly neither probative in construct nor utilitarian in ontological valence, although by the later part of the 18th Century, it would be about the only deep anchor in law and theoretical reasoning for justifying all-out, separatist rebellion.

The rebels in the British Colonies of North America gladly took hold of natural law: it flows neither from sovereignty nor from its stewards. For purposes of historical, if maybe unconscious, continuity, natural law comported for the restive but intellectual colonists with the earlier rebellion of Protestantism and its predecessors like Lollardism in that the Word and, hence, the will of God may be revealed to the common man without intercession by putative, and necessarily mortal, representatives of God in the stations of the church. To this admittedly speculative argument, it did not hurt one bit that the Founding Fathers were almost to the last man affiliated with Freemasonry, a secretive society in open ideological, religious, and political war with the Holy Roman Catholic Church.

In the Virginia Declaration of Rights dated May 15, 1776, George Mason got quite explicit about ius naturalis with this clause: "That all men are by nature equally free and independent and have certain inherent rights..." [emphasis added].

The Declaration of Independence subsequently riveted the source of rights accorded men not to the state, but to higher authority:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

There, in the first paragraph, is the invocation of "Nature"; then, in the second paragraph, comes the odd adjective "unalienable" used to describe the rights endowed to men by their Creator: unalienable, not inalienable. The rights accorded men may, indeed, be taken away, but they cannot be extinguished. The extent to which a government separates itself from the recognition of the rights men have by natural law is the equivalence of that government's descent into tyranny, and only the consent of the governed, feeble as that consent might be, serves to promote those unalienable rights owned by the governed.

The Constitution—in its Articles, its Bill of Rights, and its subsequent Amendments—is, then, not a document granting rights because no government, no document, indeed, no person or thing on Earth may grant that which is by natural law unalienable. The state as a rightful and legitimate authority may only circumstantially and parsimoniously circumscribe rights from natural law, and it is to that purpose that the United States Constitution may exist as an express treaty between the several states and the separate and supreme sovereign they form in union. The Constitution, then, expressly defines the circumstances, situations, and extents in which the federal government may arrogate to itself the ability to diminish—not to extinguish, not to repudiate, not to abolish, but only to diminish as necessary for the common good—the rights of the governed as citizens both of their respective states and of their common nation as a federation of those several states.

With all that as backdrop, in some places seemingly disconnected and summary, this article concludes with the full text of the Fourth Amendment to the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Amendment is clear: the Constitution is recognizing a right, then clearly describing, first, the procedural circumstances ('Oath or affirmation, and particularly describing' what is to be searched and seized and against whom an arrest is to be made) and, second, the substantive reason ('probable cause') by which that right may circumscribed as necessary by the state.

The plain language—capturing as it does phenomenally complex, interwoven threads of history, linguistics, and philosophy—is available for all, even politicians and judges of the 21st Century, to read and understand.

Natural law does not hide from the just; neither does it vanish at the will of tyrants.


The Dark Wraith rests his case against the New American Century.

With respect to the verdicts exonerating three New York City police officers of all criminal charges for killing Sean Bell, an unarmed, innocent man, the mainstream news media have taken a largely muted, matter-of-fact tone in reporting the acquittals, although shades of support for the decisions by Queens State Supreme Court Justice Arthur Cooperman have come from surprising sources like The New York Times, which sought to characterize the incident in terms of "nuance" in a "...complicated case that unfolded in a city less racially divided than 10 years ago," thereby lending further weight to the reasoning advanced by the judge who presided over the bench trial of the three officers, Detectives Michael Oliver and Gescard Isnora, who were charged with manslaughter, assault and reckless endangerment, and Detective Marc Cooper, who was charged with reckless endangerment.

Justice Cooperman, in acquitting the officers, asserted from the bench that inconsistent testimony by, and prior criminal records of, prosecution witnesses, principally the victim's friends, "had the effect of eviscerating" their credibility.

Not only was Justice Cooperman's means of arriving at his verdicts wrong, it was broadly outrageous on its face, and it speaks to the distortion of justice by courts over which preside judges who use their position to promote their own classist views. The detached assertions of The New York Times notwithstanding, the use of courts to craft justice by class has the invariable effect of promoting racism, sexism, and all manner of other ills the elites would furiously disclaim as their intent, even as they repeatedly ensure the endurance of inequality in both their refined and brutish instrumentalities of maintaining the status quo.

The rule of law cannot exist when, in any way, justice is shaded to the victim's general righteousness, nor should the quality of that victim's grievance before the bar of justice be diminished by some diffuse notion held by a judge that testimonial evidence is "eviscerated" when those who have already been marginalized by the courts, the police, and the larger society are invited to speak to the matter at bar. The misunderstanding of such fundamental principles is one of the primary means by which defense attorneys have historically elicited not guilty verdicts from juries, and it is appalling that any judge, extensively trained and long in experience, would allow such tactics by defense counsel to have any impact whatsoever on trial outcome. To the extent that Justice Cooperman is certainly not alone in permitting his court to become a proving ground for the character and quality of victims and their witnesses, the courts of this land allow themselves to become yet one more formidable wall by which law enforcement authorities deter citizens from seeking redress within the justice system.

That a sitting judge would be so essentially, fundamentally flawed in reasoning that he would incorporate into adjudication his own biases, shaped as they are by his own socio-economic standing, is outrageous on its face. That he would actually speak in his opinion of how he found wanting and thereby suspect the words and demeanor of the prosecution witnesses speaks not only to his classist mentality, but also to a deeper elitism inconsistent both with proper judicial temperament and, indeed, with any claim to legitimacy as a representative of a society that poses to render equal justice for all.

A trial court finds facts; it then applies the law to those facts it has derived from material, circumstantial, and testimonial evidence.

The judge's finding of facts was wrong: it was wrong because he found facts based upon the divergence of his preconceived expectations of testimony from the reality of those providing that testimony whose degraded experience in the society and with the courts had already individually and historically marginalized them.

The verdicts in this case were not examples of the rule of law protecting society and its enduring principles; these acquittals of policemen who used 50 bullets to butcher an unarmed, innocent man were the pernicious rule of an elite advancing the interests of his own class.

Res ipsa loquitur: the thing speaks for itself.


The Dark Wraith has spoken.

The story of the sheriff's deputy videotaped as she dumped a paralyzed man, Brian Sterner, out of his wheelchair and onto the floor at a Tampa detention facility has taken a new turn. The Hillsborough County deputy, Charlette Marshall-Jones, has been charged with one count of felony abuse of a disabled person. She has posted and been released on a $3,500 bond.

In response to this new information offered by commenter Moody Blue here at The Dark Wraith Forums, I offer the following response.

Much broader issues are not being addressed concerning the sheriff's deputy who dumped the quadriplegic. Despite the butt-covering apologies, first by Chief Deputy Jose Docobo, who called the deputy's actions "indefensible at every level," and then by Sheriff David Gee, who said he was "personally embarrassed and shocked by the horrific treatment Mr. Sterner received," watching that video tells a starkly different story from the official line that the treatment was outside policy guidelines and contrary to training of the law enforcement personnel of the county.

Those PR-attenuating flaks' drool is without a shred of credibility. That video clearly shows a uniform, well-practiced, pervasive disregard for fundamental human decency. It wasn't just that one woman, the one who poured the quad out of his wheelchair; it was all of those deputies in that office. Every one of them stood around with utter dispassion while Sterner hit the floor, then flailed about while the deputies moved in like mechanics about to do a 15-minute Quik-Lube oil change on a car with bad suspension. Those officers did not display even so much as a hint of concern for the venality of the incident in which they were actively, knowingly participating.

Quite tellingly, the video seems to show large windows right behind where the action was occurring. That indicates this was no secretive, furtive act done in a quiet, unobserved place; instead, this was done right where it could be seen, not just by department personnel, but also by civilians.

That renders evidence of a very different story from the one being pumped to the ever-gullible media by the sheriff. He is engaging in mere risk mitigation tactics: he is kicking the low woman on the totem pole for what she was doing as part of a pervasive culture of disrespect—indeed, lawlessness—on the part of yet another law enforcement operation that overwhelmingly deals with the public as if an accusation of a crime is sufficient justification to commence retributive, extra-judicial punishment long before the courts have the opportunity to rubber-stamp the convictions already made accomplished facts by police.

This is the Abu Ghraib story of Lynndie England all over again: a person who was probably not the monster made of her by scandal-swilling journalists who fearlessly hunt the weak and small, but who was, instead, a woman who got sucked into a sexualized, violent, abusive, machismo culture and then got destroyed while the man at the top of the chain of command, President and Commander-in-Chief George W. Bush, and a whole bunch of vicious people below him, including then-Defense Secretary Donald Rumsfeld, walked away without even so much as a scratch.

It is just sickening; and because it happens over and over again in this modern Medievalism of immune noblemen, the opportunities to be sickened occur with a systematic regularity that defies the bleatings of those who imagine that justice is somehow done by the occasional hanging of the compliant commoner for the sins of the mendacious sovereigns.


The Dark Wraith has spoken.

U.S. District Judge John D. Bates, appointed to the federal bench in 2001 by President George W. Bush, has dismissed a lawsuit filed by outed non-official cover operative Valerie Plame against Bush Administration officials. In his 41-page opinion, Bates held that White House officials were acting within the scope of their duties in talking with the press about Plame and her husband, former Ambassador Joseph Wilson, who had exposed lies the Administration was using to justify the necessity for a pre-emptive war against Iraq.

The highly controversial judge has been a favorite of powerful Right-wing judges. Former U.S. Supreme Court Chief Justice William Rehnquist appointed him to serve on the U.S. Judicial Conference Committee on Court Administration and Case Management, and current U.S. Supreme Court Chief Justice John Roberts last year appointed him as a judge on the Foreign Intelligence Surveillance Court.

Judge Bates has demonstrated extraordinary willingness to allow the Bush Administration to act in secrecy and without repercussions. Among his previous controversial decisions, Bates ruled that Congress had no standing to sue Vice President Richard V. Cheney in the matter of Cheney's refusal to turn over the names of participants in a White House energy task force. For that and other decisions, Judge Bates has been strongly criticized for his transparent use of non-standard interpretation of the purpose and application of procedural law concerning standing of plaintiffs to advance a 'separation of powers' rationale for throwing out cases filed against the Bush Administration. In dismissing the lawsuit filed by Plame, he has once again used technical grounds to shield the White House and its personnel from facing consequences for their actions. The arc of these decisions is constructing a significant basis in common law for the so-called "unitary executive" doctrine by which a President of the United States is freed from oversight and punishment by Congress and the judiciary so that he or she may have wide, extra-legal latitude in decision-making and actions.

Judge Bates is listed as being on the "Judicial Faculty" of Pepperdine University, whose president is former Independent Counsel Kenneth Starr, best known for spending tens of millions of dollars of public money at the behest of congressional Republicans trying to find grounds to impeach then-President Bill Clinton. Starr was ultimately able to get an indictment against Clinton because the President had lied to a grand jury about being fellated by an intern. Rendering further evidence of his deep connections to Right-wing legal activism in the United States, Judge Bates served as Deputy Independent Counsel during the Whitewater investigation, another attempt in the 1990s by Republicans to damage or prematurely end the Clinton Presidency.

With the growing body of his decisions from the bench to protect Bush Administration officials from civil punishment for wrong-doing that harmed the national security of the country, and after having previously made his mark on the legal landscape aiding fellow Republicans trying to wreck a Democratic President of the United States, Judge John Bates has now clearly found a President and White House staff worthy of being held above the law.

Update, July 20, 2007, 9:40 EDT: Attorneys for Valerie Plame and Joseph Wilson have stated that they will appeal the dismissal of the case by Judge Bates.

The Sixth Circuit Court of Appeals has ordered the dismissal of a lawsuit brought by the ACLU against the warrantless domestic spying that was being conducted by the National Security Agency. The order by the appeals court overturns a 2006 ruling by U.S. District Judge Anna Diggs Taylor. By a 2-1 majority, the Circuit Court found that the plaintiff failed to demonstrate that it has standing to sue, regardless of the fact that, since the ACLU has no access to the secret records of the NSA, it cannot prove its suspicion that its members were targets of the spying.

Writing for the majority, U.S. Circuit Court Judge Alice Batchelder, an appointee of President George H.W. Bush, stated, "The plaintiffs have no evidence... that the NSA has actually intercepted (or will actually intercept) any of their conversations." While remaining curiously silent on the fact that, because the spying program was secret, the records of who was targeted cannot be accessed by those who suspect that they were subjected to judicially unsanctioned surveillance, Bachelder sharply criticized District Judge Diggs' original ruling from the facts, and even at one point scorned the plaintiff group, itself, by using the term "thinly veiled ruse" to describe a claim by the ACLU that the warrantless spying by the Bush Administration was an infringement on the right of free speech enshrined in the First Amendment.

Bachelder was joined, but on far narrower grounds, by U.S. Circuit Court Judge Julia Smith Gibbons, appointed by the current President, George W. Bush.

Writing in dissent, U.S. Circuit Judge Ronald Lee Gilman cited multiple court precedents in which plaintiffs were found to have standing despite defects in capacity to show personal effect of the alleged acts against them.

Although the ACLU could file a petition for grant of writ of certiorari, thus seeking release from the Circuit Court for appeal to the U.S. Supreme Court, it is unlikely that the high court would hear the case solely on its own merits since the Bush Administration claims its warrantless domestic spying program is not in operation at the present time. However, more than three dozen other cases have been brought together before the Ninth Circuit Court of Appeals. If that decision is contrary to the one just issued by the Sixth Circuit Court, the existence of conflicting precedents might compel review by the Supreme Court in order to set uniform, mandatory precedent for the entire country.

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