Sunday, May 17, 2009

Fingers Needed For Crumbling Dike

The “fingers” are those of American patriots and the “crumbling dike” is the judiciary, which is actively eroding our nation’s ability to defend against our terrorist enemies.

I explain below, in this lengthy essay. Please stay with me; this is important.

About a half-century ago, the left realized that its liberal-progressive agenda was unacceptable to Congress and most state legislatures. So they shifted their battle into the courts, where with minimum effort and resources they could obtain maximum results in realizing their anti-American agenda, which scoffs at individual rights, limited government, free markets and national defense.

Putting aside the liberal-progressive’s assault on American values in the domestic context, examples abound of their attempt to influence foreign policy for the benefit of our enemies.

For example, during the Vietnam War a group of Congressmen sued over the legality of providing military aid to El Salvador (Crockett v. Reagan). English ladies, joined by American Congressmen Ron Dellums and Ted Weiss, sued to enjoin the deployment of cruise missiles in the women’s town (Greenham Women v. Reagan). Another group of legislators sued to declare the invasion of Grenada unconstitutional. (Conyers v. Reagan). Still other Congressmen sued to force President Reagan to file status reports under the War Powers Resolution. (Lowry v. Reagan). An “ordinary citizen” sued to block military action in Gulf War I. (Pietsch v. Bush). Traitors like Jane Fonda and Tom Hayden, who gave aid and comfort to the North Vietnamese Communists (, were counseled by the Legal Left about how they could travel to Hanoi while avoiding prosecution.

Immediately after the terrorist attacks of September 11, 2001, the Legal Left morphed into a pro-terrorist, anti-American Fifth Column, aiming their considerable firepower at our government’s attempts to defend America. (The Encarta Dictionary defines “Fifth Column” as meaning “any group of people who give aid and support to the enemy from within their own country.”)

In a close contest with the ACLU for the most pro-terrorist, anti-American organization on the Legal Left is the Center for Constitutional Rights (CCR). When the September 11 attacks occurred, it was manna from heaven for the CCR.

It attacked the government’s detention of alien detainees, described by the CCR as the “real” victims of September 11.

It attacked President Bush’s order creating military commissions.

It attacked the Patriot Act, which armed America with the weapons we desperately need to fight this unconventional war.

It attacked American cooperation with friendly intelligence services.

It represented a terrorist named Rasul and squeezed a 5-4 decision out of the Supreme Court of the United States that enemy combatants are entitled to due process of law.

The Left and its platoons of lawyers had its fingerprints all over the Supreme Court case asserting that enemy combatants are entitled to Geneva Convention protection, and that President Bush had no right to create military commissions to try Guantanamo prisoners. The Legal Left led the case giving even battlefield-captured terrorists the American constitutional right to challenge their detention by seeking a writ of habeas corpus from a federal court.

The Department of Justice and Solicitor General’s office represented the government in the terrorist cases, but they could have used help, of which they received precious little.

For example, in one Supreme Court terrorism case, Hamdan v. Rumsfeld, the government was supported by only two “friend of the court” briefs.

The terrorist, however, was supported by briefs from scores of American law professors, hundreds of British and European legislators, and such organizations as Human Rights First, People for the American Way, World Organization for Human Rights USA, and the Urban Morgan Institute for Human Rights.

Laypersons can understandably wonder why government lawyers sometimes need help. Here’s one current example. I’ve just finished writing an amicus curiae brief supporting the government in a case involving a federal statute declared unconstitutional by a federal court of appeals. Because the United States attorney representing the government in the court of appeals did not raise a certain issue in that court, the Department of Justice, as a party, cannot now raise it in the Supreme Court.

But I can. And I have.

Another example of the government needing help is cases in which neither party in the lower courts have identified, nor addressed, important issues that should be considered by the Supreme Court.

Then there are cases where the actual parties can’t risk antagonizing certain judges. For example, once I represented a group of homeowners who opposed a federal judge’s order that low-cost public housing be built in a middle-class neighborhood of a New York suburb. One important issue in the case went to the Supreme Court. My analysis of the case and the justices told me that of the nine, four would vote for our position and four would reject it. That left one justice who would, effectively, decide the case.

Although my client was not a party to the case, it qualified to file an amicus curiae brief.

After reading scores of opinions by Justice X, I wrote our amicus curiae brief’s arguments targeted specifically at him, based on his position on similar issues.

We won, 5-4.

My point is that intervention in Supreme Court cases (and, for that matter, in important court of appeals cases) dealing with national security and other patriot-type issues can sometimes make a difference in outcome.

It has been clear ever since last year’s presidential campaign, let alone now that Obama has taken office, that he views America’s national security through a different lens from those of us who love our country, understand the threat to it from Islamic terrorists, and realize that, for better or worse, much of our war against those persons and the states which support them is no longer decided exclusively by the President and Congress but instead by the courts, especially the Supreme Court of the United States.

Regrettably, it is not clear to me (which is why I am publishing this essay) whether there are enough like-minded private individuals and organizations in America to fight our foreign and domestic enemies, and the Obama Administration, in the courts of this land—up to and including the Supreme Court of the United States.

There are many national security issues which will inevitably be decided by the courts: Guantanamo closure, torture limits, domestic surveillance, terrorist “rights,” intelligence sharing, foreign rendition, habeas corpus, military commissions, Geneva Convention, relinquishing sovereignty, CIA files, “truth commissions.”

In cases like these, and others, the government is going to need help—especially given the soft-on-terrorism attitudes of our president, attorney general, and others in Obama’s defense and intelligence apparatus.

Understandably, you ask, what can be done?

Here is the answer (in courier font below) I gave to that question a few days ago to a retired Army colonel, active in patriot affairs.

I’m glad we had this morning’s conversation.

To summarize my comments:

1. The Bergs, Donofrios, Taitz [Obama citizenship] cases are, as I have said many times before, self-aggrandizing shameless self-promotion, and thus not to be taken seriously. Worse, like bad money driving out good, they taint serious cases that could (and should) have been brought. And they sully the reputations of everyone who does take them seriously.

2. There is much positive work that can be done in the courts where, using Roe v. Wade as a horrible example, there is enormous leverage. Six men on the Supreme Court of the United States wiped out the laws of fifty states and allowed, and thus sanctioned, the murder of millions of the unborn.

3. One easy-entry method into the judicial wars is to file amicus-curiae (friend-of-the-court) briefs in others’ cases, thereby avoiding the necessity of bringing one’s own cases—especially in the Supreme Court of the United States.

4. Using myself as an example of what qualified lawyers would charge, depending on the court, issues, and timetable, the relatively modest cost would be between $10,000 and $20,000, plus printing costs, per brief.

5. Consider that the Supreme Court’s recent terrorism decisions were decided by close votes, as were other important cases involving patriotism and national security issues. Under an Obama judicial regime, the judges will get worse, the fighting harder, and the decisions closer.

6. There are two ways to get into this fight in the judicial system.
a. Have a qualified lawyer look for cases in which an amicus curiae brief should be submitted, and when finding one you and your associates then use your and others’ email lists to find persons and/or organizations who have a plausible reason to file a brief (as for example the humane society in the brief I’m now writing for the Supreme Court) and who are willing to make modest financial contributions to fund the brief.

b. Form a simple not-for-profit corporation (forget about tax exemptions, etc.) dedicated to patriotic causes, and use it to do what I suggest in paragraph (a) above.

7. Here’s an example, either way. I learn of a case going to the Supreme Court (or a federal appeals court) testing the constitutionality of the Patriot Act. It’s the ACLU versus the United States government. You and your associates either individually under (a) or through the corporation under (b) get out the word, solicit plaintiffs, hire a lawyer, and sit back. It is as easy as that.

8. Should there arise, as well there might under an Obama judicial regime, too many cases for one lawyer to handle, he or she could supervise other like-minded lawyers who could probably be recruited on a pro bono basis. For example, you could send out a questionnaire, with the appropriate context explained, asking the following questions: 1. Name. 2. Firm name. 3. Office address. 4. Telephone and fax number(s). 5. Email address. 6. Year(s) admitted to practice, and jurisdiction(s). 7. Specialization(s), if any. 8. Post-law school judicial clerkship(s), if any. 9. Judicial experience, if any. 10. Experience with national security-related cases, if any. 11. Amount of time available annually. 12. Whether your firm has a formal pro bono program

When Erika Holzer and I wrote “Aid and Comfort”: Jane Fonda in North Vietnam, in order to promote our book we had a search conducted of Internet sites devoted to military, patriotic, intelligence, national security, and similar subjects. After a few weeks, our researcher gave up because there were so many. We found—and who knows what we didn’t find?—literally hundreds upon hundreds of such sites, probably reaching millions of like-minded American patriots—people who can contribute modest sums that might make a difference in how our courts decide cases affecting the safety of the United States.

Here, besides writing and publishing this essay, is my contribution to this idea:

On my blog—at the right side of this essay— there is a box directing anyone who wants to receive my blogs to “enter your email address” and then click on “subscribe.” It’s that easy.

Those who subscribe will promptly receive an email asking them to confirm by typing in a few letters and “sending.” Even though one may have clicked on “subscribe,” unless he or she confirms, they will not receive my blog.

The inducement for people to subscribe to my blog is his: As I routinely monitor the judicial landscape in the United States and see a pending case in which a patriot-driven amicus curiae brief can be submitted, I will provide all necessary information: the parties, the case, the issue(s), the importance, the timeline—everything necessary for individuals and/or organizations to decide if they wish to get involved.

When I provide this information, perhaps some individuals and/or groups will put their shoulders to the wheel and let the courts know that there are Americans throughout the length and breadth of this land who will no longer allow the Legal Left to be the only team on the judicial playing field. (For reasonable questions, I can be reached through

I earnestly ask those of you who understand the importance of what I’m proposing to please forward this essay to as many others as you can, with the request that each recipient do the same—in the hope that of the hundreds of thousands who will read it, some will pick up the amicus curiae ball and score some points for our side.