Tag Archives: duty

Sharia Law and Impeachment

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Andrew McCarthy, writing for National Review Online last Friday, described a shocking—and revolting—development in American jurisprudence.

Before I go into that, though, let me digress and provide a couple of quotes from the Pennsylvania Constitution.  First is a state judge’s oath of office, from Article VI, Section 3:

I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.

Next is the state constitution’s view of free speech, from Article I, Section 7 (I won’t go into the Federal Constitution’s 1st Amendment statement on free speech—a statement which a Pennsylvania state judge also is sworn to support, obey and defend):

The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

Now to cases.  It seems that Ernest Perce was the victim of a criminal assault.

Ernest Perce wore a “Zombie Mohammed” costume and pretended to walk among the dead (in the company of an associate who was the “Zombie Pope….”  The assailant, Talag Elbayomy, a Muslim immigrant, physically attacked Perce, attempted to pull his sign off, and, according to police, admitted what he had done right after the incident.

State Judge Mark Martin

dressed the victim down for failing to appreciate how sensitive Muslims — including the judge himself [a converted Muslim] — are about Islam.

The (now twice over) victim recorded the audio of Martin’s shameful performance and has posted it on YouTube.

Here is an excerpt from Martin’s…ruling (there’s more at the NRO link above).

Before you start mocking someone else’s religion you may want to find out a little bit more about it. That makes you look like a doofus.

And Mr. Thomas [Elbayomi’s defense lawyer] is correct. In many other Muslim speaking countries – excuse me, in many Arabic speaking countries – call it “Muslim” – something like this is definitely against the law there. In their society, in fact, it could be punishable by death, and it frequently is, in their society.

Thus, what goes on in “other countries” must, of necessity, supersede domestic law governing behaviors done domestically.  Even when what goes on in those countries is patently barbaric.

Courtesy of The Volokh Conspiracy, Martin explains himself:

This story certainly has legs. As you might imagine, the public is only getting the version of the story put out by the “victim” (the atheist). Many, many gross misrepresentations. Among them: I’m a Muslim, and that’s why I dismissed the harassment charge (Fact: if anyone cares, I’m actually Lutheran, and have been for at least 41 years).

I also supposedly called him and threatened to throw him in jail if he released the tapes he had made in the courtroom without my knowledge/permission (Fact: HE called ME and told me that he was ready to “go public” with the tapes and was wondering what the consequences would be; I advised him again to not disseminate the recording, and that I would consider contempt charges; he then replied that he was “willing to go to jail for (his) 1st amendment rights”- I never even uttered the word “jail” in that conversation).

He said that I kept a copy of the Quran on the bench (fact: I keep a Bible on the bench, but out of respect to people with faiths other than Christianity, I DO have a Quran on the bookcase BESIDE my bench, and am trying to acquire a Torah, Book of Mormon, Book of Confucius and any other artifacts which those with a faith might respect).

He claims that I’m biased towards Islam, apparently because he thinks I’m Muslim. In fact, those of you who know me, know that I’m an Army reservist with 27 years of service towards our country (and still serving). I’ve done one tour in Afghanistan, and two tours in Iraq, and am scheduled to return to Afghanistan for a year this summer. During my first tour in Iraq, I was ambushed once, attacked by a mob once, sniped at once, and rocketed, bombed, and mortared so many times that I honestly don’t know how many time I’ve been attacked. Presumably by Muslim insurgents. My point: if anyone SHOULD be biased towards Muslims, one would think it would be me. I’m not, however, because I personally know or have met many good, decent people who follow Islam, and I shouldn’t characterize the actions of those who tried to kill me as characterizations of all Muslims.

When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended. And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”;

In short, I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.

A lesson learned here: there’s a very good reason for Rule 112 of Rules of Criminal Procedure- if someone makes an unauthorized recording in a Court not of Record, there’s no way to control how it might be manipulated later, and then passed off as the truth. We’ve received dozens upon dozens of phone calls, faxes, and e-mails. There are literally hundreds of not-so-nice posts all over the internet on at least 4 sites that have carried this story, mainly because I’ve been painted as a Muslim judge who didn’t recuse himself, and who’s trying to introduce Sharia law into Mechanicsburg.

Like Professor Volokh suggests, this is unconvincing.  There remains the fact of the assault, both unprovoked and unjustified.  As to “the victim’s version, the defendant’s version, and a very intact Styrofoam sign,” there’s also the police’s hearing of the assailant’s confession and the possibility of an explanation of the sign’s condition, both of which he refused to hear when he tossed the case.

This judge has willfully and deliberately applied foreign law (and he as, as a separate matter, applied foreign religious law) to a domestic American criminal case, and he has done so by replacing applicable domestic law with that foreign law.  This is a deliberate violation of his oath of office, and this should be an impeachable offense.  We’ll see in the coming days whether the Pennsylvania legislature is up to the task of protecting American, and its own state, law.  We’ll also see in the coming days whether the prosecutor involved is up to the task of appealing this willfully wrongful dismissal.

America’s Future—Defense Policy Principles, Part I

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I wrote about nature of war from foreign policy perspective here.

In this first post about national defense policy principles and force structures, I want to talk about the meaning of “war” and “state of war”  from a defense policy perspective.  There is far more to war than shooting and exchanging missile fire, although overtly military actions are certainly central aspects of any war, especially in the end game.  A clear understanding is necessary if Defense and State are to work together as the unified whole they must in order for the United States effectively to defend itself in wars of any type.

The damage doesn’t have to be done with bombs or bullets.  Anything that is designed deliberately to impede or to prevent our freedom of action is damaging: it is an act of war.

What, then, is “war?”  Certainly it includes the formally declared state of war, wherein Congress acts under its Article I, Section 8 responsibilities; I won’t go into that further here.  War also includes, though, the aggregation of those acts of war described in the link above (and in links within that post); it need not be declared in order to be in progress, or to be damaging to us and to our security and even survival.  Indeed, in the modern world, where the distribution of formal military power among the nations of the world is so vastly asymmetric, the weaker almost invariably will make war—shooting or otherwise—outside a formal, openly declared state.  Rather, the (weak) attacker will fight in as stealthy a manner as can be managed, at least until the damage done has accumulated to the point of eliminating military advantage and transferring practical advantage to the attacker.  Obviously, such conflicts from deep within the shadows, includes seemingly nonviolent fighting [sic] as well as the asymmetry of terrorist attack.

Moreover, America’s enemies, especially those actively fighting us, are not even necessarily classically formed nation-states; they’re much more amorphous.  These entities, which I’ve been calling non-national entities in earlier posts, have components that are spread across national boundaries; they’re organized as coordinating, but largely separate and more or less independent components.  Further, these non-national entities operate outside Geneva Conventions governing the “proper” way of conducting warfare.  This diffusion across national boundaries and this lack of Convention guidance complicates our response to attacks, but they need not constrain us to the point we cannot defend ourselves.

Complications arise when an overt attack, or a limited series of “acts of war,” originate from within the jurisdiction of a nation-state with which we are not (formally) at war.  (When the attack originates from within a nation that is a friend or ally, the situation actually is much simpler: we can expect that when the attackers are identified, the “host” nation will act decisively on its own initiative.)  It is difficult to enter the host nation’s borders in order to strike the entity and destroy its ability to continue its war against us.  Alternatively, the diffusion of the non-national entity can make it difficult to identify useful targets.  It is the role of diplomacy to create the conditions, permissive or not, that facilitate our entry.  Afghanistan is one example of diplomacy’s success in enabling such an entry for such a purpose.

The Geneva Conventions contain within them mechanisms for prosecuting a defense against attackers who themselves do not follow the Conventions; however, even at that, the Conventions themselves are obsolete: they cannot apply in any practical way to modern wars that don’t necessarily involve actual shooting, nor are they an efficient framework for addressing the kind of war prosecuted by terrorist non-national entities.

In the end, while our diplomacy is creating the conditions that legitimize bypassing the Conventions in wars involving non-national entities and/or undeclared wars inflicted on us by nation-states, our defense policy that must create the conditions for actually fighting such wars to their only possible end: the destruction of the attacker’s ability to continue, wherever it exists, whether that attacker is a nation-state or not, and whether a legal, formal state of war exists or not.

Some examples of patterns of actions deliberately inimical to us and of non-declared war include these (note that this is not an exhaustive list; it is for illustration only).

Russia:

  • in 2007, threatened nuclear war against a US ally, Poland, if we went ahead with a planned missile defense shield radar installation.
  • in 2008, invaded and partitioned a US ally, Georgia, in a naked Sudetenland-like Anschluss.  Nominally, the partitioned provinces, with Russian tanks backing them, simply declared their independence from Georgia; however, they are functionally principalities of Russia.
  • in 2009, participated with the People’s Republic of China in a hack into our national electric power grid control facilities.
  • presently, in response our renewed efforts to defend ourselves against missile attacks, has said they will move nuclear missiles into western Russia so as to target our defensive installations, and our European allies generally.
  • actively supports Iran’s efforts to obtain nuclear weapons, knowing Iranian purposes for the devices.  Russia routinely blocks any serious options, beginning with truly effective sanctions, that would influence Iran to stop its development and acquisition efforts.

Russia’s behaviors are not overt acts of war, but they are inimical to American interests, and Russia clearly knows this.

PRC:

  • actively engaged in hacking into our defense and national infrastructure computer systems, not just for “ordinary” espionage, but also to plant malware having the purpose of disabling those systems at a time of Chinese selection.  These hacks include a years-long penetration of the US Chamber of Commerce, hacks into our national electric power grid control facilities, and attacks against Lockheed Martin, maker of our newest fighter, the F-35, as well as an attack against the F-35 program itself.
  • routinely ships poisoned trade goods, including laptops assembled in Chinese factories under US trade names having Trojans installed before they leave the factory, baby formula with poisons in the mix, gypsum sheets for American housing permeated with sulfur (including hydrogen sulfide), strontium, and organic compounds associated with acrylic paints.
  • actively supports Iran’s efforts to obtain nuclear weapons, knowing Iranian purposes for the devices.  The PRC routinely blocks any serious options, beginning with truly effective sanctions, that would influence Iran to stop its development and acquisition efforts.

While the poisoned trade goods may not be overt acts of war, but rather reflective of incompetence, it’s hard to accept the thesis that a modern nation like the PRC really is that sloppy.  The hacking and delivery of malware with a view to damaging our national ability to function plainly are acts of war, as DoD has lately recognized.

Iran has had a long-standing shadowy war in progress against the US.

  • in November 1979, Iran attacked the US embassy in Tehran and seized our diplomats and staff, imprisoning them for a year and a quarter.  Under international law, this is a casus belli.
  • in 1998, Iran, together with Sudan, participated in the terrorist bombings of the American embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, another casus belli.
  • presently threatens an ally of the US, Israel, with extermination.
  • presently developing nuclear weapons, which it will use for that extermination, and which it will pass to other terrorists so they can attack US allies in Europe and attack us directly in our homeland.

Northern Korea:

  • frequently attacks with artillery, and at sea, an ally of the US, the Republic of Korea.
  • transfers nuclear weapons technology to nations inimical to the US, including Saddam’s Iraq, Syria, and Iran.

Even Pakistan, a alleged US ally, actively transfers nuclear weapons technology to nations inimical to us, including the same Syria and Iran.

I’ll address the policy principles and force structure that must guide these capabilities in subsequent posts.  Our responses won’t necessarily be to shoot back, or to respond in kind (though these options will plainly be present); they do need to be directed to the purpose, and be capable, of promptly defeating the inimical acts.

Penn State and Duty

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My blog is supposed to be about economics, politics, and their intersection, so I was reluctant to write this piece.  And in truth, the subject sickens me.  But in the end, politics also is about the interaction of people with people, about duty, about responsibility.  But what higher duty, what higher responsibility does any person have—does any society have—than to the welfare of our children?

I’ll not recap the case; ample reports can be found here and here and here.  Instead, all I can do is ask questions.  I won’t address all the key players in this ugly charade; my point will be clear, though.

When Mike McQueary, ex-starting quarterback for Penn State, graduate assistant with Penn State at the time he saw  Sandusky in one of the acts, and now an assistant coach with Penn State’s football team, saw Sandusky having anal sex on the boy, did he not step in on the spot and intervene?  Of what was he so terrified?  Where was his sense of duty?  Why did he wait overnight even to report the matter—and then to Paterno, and not to the University authorities and the police?

Why did Joe Paterno, head coach of the Penn State football team, think it sufficient to buck the complaint—finally received from McQueary—up the University chain and then walk away from it?  Where was his follow up?  Where was his sense of duty to his players and his coaching staff?  Where was his sense of duty toward the children entrusted to the care of a member of his staff, now known to be abusing those children?

Where is the NCAA?  It’s been more than a week since the story broke, and the indictments made public, and the NCAA is still trying to see its way forward vis-à-vis Penn State and the tragedy its employees have created.  How is the NCAA’s duty unclear to them?  Boston College sports law professor Warren Zola makes this excuse for the NCAA:

No student-athletes are involved, for now, and nothing benefitted the teams or the institution for a competitive advantage.

Hmm….  Really?  A coach of student-athletes isn’t close enough?  Because, maybe, these student-athlete children had aged out of the threat zone?  No competitive advantage accrues from suppressing the child abuse, which then avoids the “distraction” of a criminal enforcement action?

NCAA President Mark Emmert did say, today, that the NCAA “will launch” its own investigation into the matter, albeit while staying out of the way of the criminal investigation that’s already underway.  When, exactly, is “will?”  Emmert also said he’ll watch developments and “decide whether NCAA rules were violated.”  The NCAA has no rules involving moral turpitude?  It has no rules concerning appropriate treatment by staff of the children in their charge?  There’s a question in Emmert’s mind beyond the legal one of whether Sandusky did the deeds for which he’s been charged?

College sports have become a professional business where winning is more important than honor.  Lost is the teaching aspect of college sports (and sports in K-12, but that’s a different thread): challenge, competition, teamwork, the mutual responsibility and mutual trust that underlie teamwork, the value to that teamwork of the individual standout who makes the rest of the team better, the excellence of the one that creates leadership.

Especially that mutual trust and mutual responsibility have been lost in our college professional sports industry.  As has the integrity of the concept of standout.