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Thursday, September 12th, 2013




{Published on the Policy Think Site at <>.}

By Jay B Gaskill

For The Policy Think Site

Vlad, the (former) KGB ruler of Russia, has come to President Obama’s aid bearing an olive branch … through clenched teeth.

Today, the New York Times ran Putin’s Op Ed.  {In fairness, I have reproduced it in full below – without advance clearance from the KGB or the NYT.)

Mr. Putin’s Op Ed is skillfully constructed. It is full of humanitarian buzz words and phrases – I call them “gushlets”. – No doubt they were cynically inserted by a Russian expert in “liberal-speak”.  I begin with an early response from key Israeli figures whose beleaguered country has by far the most to lose in this deadly game.



New York Times 9-11-13

U.S. Backing of Russian Plan Leaves a Wary Israel Focusing on Self-Reliance


“JERUSALEM — In tallying winners and losers from the unexpected turn toward a potential diplomatic resolution of the crisis over Syria’s chemical weapons, Israel lands squarely in the question-mark column.

“….many analysts worried that Mr. Assad, his Iranian patrons and the Lebanese militia Hezbollah would emerge strengthened, and that the main upshot of the episode would be a sense of American wavering on involvement in the Middle East.

“When the Iranians see this, they don’t fear a military threat,” Tzachi Hanegbi, an Israeli lawmaker with security expertise who is close to the prime minister, Benjamin Netanyahu, told Israel Radio. “To the contrary, they feel the international coalition is weak and stuttering and not enough of a reason to give up their nuclear program.”

Dan Gillerman, a former Israeli ambassador to the United Nations, said the message to Iran was that “America’s allies cannot rely on it, that its enemies can do what they want and nothing will happen to them.” Avigdor Lieberman, Israel’s former foreign minister and Mr. Netanyahu’s political partner, reacted to the developments with what has become practically a mantra here, “We rely only on ourselves.”





…from Mr. Putin’s Op Ed with JBG’s {running commentary}.

September 11, 2013

A Plea for Caution From Russia


“MOSCOW — RECENT events surrounding Syria have prompted me to speak directly to the American people and their political leaders. It is important to do so at a time of insufficient communication between our societies.

‘The potential strike by the United States against Syria, despite strong opposition from many countries and major political and religious leaders, including the pope, will result in more innocent victims …”

{Omitted in this discussion was any mention of the “innocent” victims killed in Russia’s brutal response to Muslim rebels in Chechnya, or of the potential immolation of Israel via an Iranian nuclear attack. JBG}

“From the outset, Russia  has advocated peaceful dialogue enabling Syrians to develop a compromise plan for their own future.’

{Somehow I missed that stunning Russian contribution to peace and freedom in Syria.  Was I asleep, or was Putin just making a joke? JBG}

“But force has proved ineffective and pointless. … In Iraq the civil war continues, with dozens killed each day.’

{Oh dear.  Saddam, the brutal and dangerous dictator was deposed, Iraq has a functioning civil democracy, slightly impaired because Obama has withdrawn support, and “dozens” are killed each day.  Has the Russian President checked Chicago, LA and Oakland lately? JBG}

“…civilian casualties are inevitable, including the elderly and children, whom the strikes are meant to protect.”

“We must stop using the language of force and return to the path of civilized diplomatic and political settlement.”

“We must work together to keep this hope alive, as we agreed to at the Group of 8 meeting in Lough Erne in Northern Ireland in June, and steer the discussion back toward negotiations.”

“If we can avoid force against Syria, this will improve the atmosphere in international affairs and strengthen mutual trust. It will be our shared success and open the door to cooperation on other critical issues.”

{No one in the Russian security establishment gives a crap about “civilian casualties”, not “using the language of force”, “keeping hope alive” or “improving the atmosphere.” JBG}

“My working and personal relationship with President Obama is marked by growing trust”

{Translation:I have never trusted this guy, but now I think I can play him’.}

[Putin opposes] “American exceptionalism, [Mr. Obama] stating that the United States’ policy is ‘what makes America different. It’s what makes us exceptional.’ It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation.”

{Translation: ‘I, Vlad Putin, believe in Russian exceptionalism and there is no room for the American version. JBG}

“There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy. Their policies differ, too. We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.”

{I can hear the snickers in the Kremlin from thousands of miles away.}

Vladimir V. Putin is the president of Russia.



We are dealing with international thugs.  The rules for this never change.  Do not show weaknessNever bluff.

An open-ended diplomacy initiative to Assad amounts to permission to dither and game us while continuing to fight a civil war to the death.  It is tantamount to an invitation to ignore us.

And it amounts to a message to the Mullahs-in-Charge who run Iran: Go ahead with your nuclear program, “make your day”.

A tough leader would give Assad a firm deadline then hit him hard when (not if) he fails to meet it.  A really tough leader with strategic vision would use this whole mess as a distraction while we prepare – in secret – to rain down the hounds of hell on Iran, taking out naval, military and suspect nuclear assets as a “got your attention yet?” warning for worse to come.

But if there is such a leader, he is absent from White House.



This piece follows three short articles by Mr. Gaskill posted at –


Except for the quoted material, this is Copyright © 2013 by Jay B Gaskill, Attorney at Law

Author contact –



My fellow Americans, tonight I want to talk to you about Syria, why it matters and where we go from here. Over the past two years, what began as a series of peaceful protests against the repressive regime of Bashar al-Assad has turned into a brutal civil war. Over a hundred thousand people have been killed. Millions have fled the country. In that time, America has worked with allies to provide humanitarian support, to help the moderate opposition and to shape a political settlement.

But I have resisted calls for military action because we cannot resolve someone else’s civil war through force, particularly after a decade of war in Iraq and Afghanistan.

The situation profoundly changed, though, on August 21st, when Assad’s government gassed to death over a thousand people, including hundreds of children. The images from this massacre are sickening, men, women, children lying in rows, killed by poison gas, others foaming at the mouth, gasping for breath, a father clutching his dead children, imploring them to get up and walk. On that terrible night, the world saw in gruesome detail the terrible nature of chemical weapons and why the overwhelming majority of humanity has declared them off limits, a crime against humanity and a violation of the laws of war.

This was not always the case. In World War I, American GIs were among the many thousands killed by deadly gas in the trenches of Europe. In World War II, the Nazis used gas to inflict the horror of the Holocaust. Because these weapons can kill on a mass scale, with no distinction between soldier and infant, the civilized world has spent a century working to ban them. And in 1997, the United States Senate overwhelmingly approved an international agreement prohibiting the use of chemical weapons, now joined by 189 government that represent 98 percent of humanity.

On August 21st, these basic rules were violated, along with our sense of common humanity.

No one disputes that chemical weapons were used in Syria. The world saw thousands of videos, cellphone pictures and social media accounts from the attack. And humanitarian organizations told stories of hospitals packed with people who had symptoms of poison gas.

Moreover, we know the Assad regime was responsible. In the days leading up to August 21st, we know that Assad’s chemical weapons personnel prepared for an attack near an area they where they mix sarin gas. They distributed gas masks to their troops. Then they fired rockets from a regime-controlled area into 11 neighborhoods that the regime has been trying to wipe clear of opposition forces.

Shortly after those rockets landed, the gas spread, and hospitals filled with the dying and the wounded. We know senior figures in Assad’s military machine reviewed the results of the attack. And the regime increased their shelling of the same neighborhoods in the days that followed. We’ve also studied samples of blood and hair from people at the site that tested positive for sarin.

When dictators commit atrocities, they depend upon the world to look the other day until those horrifying pictures fade from memory. But these things happened. The facts cannot be denied.

The question now is what the United States of America and the international community is prepared to do about it, because what happened to those people, to those children, is not only a violation of international law, it’s also a danger to our security.

Let me explain why. If we fail to act, the Assad regime will see no reason to stop using chemical weapons.

As the ban against these weapons erodes, other tyrants will have no reason to think twice about acquiring poison gas and using them. Over time our troops would again face the prospect of chemical warfare on the battlefield, and it could be easier for terrorist organizations to obtain these weapons and to use them to attack civilians.

If fighting spills beyond Syria’s borders, these weapons could threaten allies like Turkey, Jordan and Israel.

And a failure to stand against the use of chemical weapons would weaken prohibitions against other weapons of mass destruction and embolden Assad’s ally, Iran, which must decide whether to ignore international law by building a nuclear weapon or to take a more peaceful path.

This is not a world we should accept. This is what’s at stake. And that is why, after careful deliberation, I determined that it is in the national security interests of the United States to respond to the Assad regime’s use of chemical weapons through a targeted military strike. The purpose of this strike would be to deter Assad from using chemical weapons, to degrade his regime’s ability to use them and to make clear to the world that we will not tolerate their use. That’s my judgment as commander in chief.

But I’m also the president of the world’s oldest constitutional democracy. So even though I possessed the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security, to take this debate to Congress. I believe our democracy is stronger when the president acts with the support of Congress, and I believe that America acts more effectively abroad when we stand together.

This is especially true after a decade that put more and more war-making power in the hands of the president, and more and more burdens on the shoulders of our troops, while sidelining the people’s representatives from the critical decisions about when we use force.

Now, I know that after the terrible toll of Iraq and Afghanistan, the idea of any military action, no matter how limited, is not going to be popular. After all, I’ve spent four and a half years working to end wars, not to start them. Our troops are out of Iraq, our troops are coming home from Afghanistan, and I know Americans want all of us in Washington, especially me, to concentrate on the task of building our nation here at home, putting people back to work, educating our kids, growing our middle class. It’s no wonder, then, that you’re asking hard questions. So let me answer some of the most important questions that I’ve heard from members of Congress and that I’ve read in letters that you’ve sent to me.

First, many of you have asked: Won’t this put us on a slippery slope to another war? One man wrote to me that we are still recovering from our involvement in Iraq. A veteran put it more bluntly: This nation is sick and tired of war.

My answer is simple. I will not put American boots on the ground in Syria. I will not pursue an open-ended action like Iraq or Afghanistan. I will not pursue a prolonged air campaign like Libya or Kosovo. This would be a targeted strike to achieve a clear objective: deterring the use of chemical weapons and degrading Assad’s capabilities.

Others have asked whether it’s worth acting if we don’t take out Assad. As some members of Congress have said, there’s no point in simply doing a pinprick strike in Syria.

Let me make something clear: The United States military doesn’t do pinpricks.

Even a limited strike will send a message to Assad that no other nation can deliver. I don’t think we should remove another dictator with force. We learned from Iraq that doing so makes us responsible for all that comes next. But a targeted strike can make Assad or any other dictator think twice before using chemical weapons.

Other questions involve the dangers of retaliation. We don’t dismiss any threats, but the Assad regime does not have the ability to seriously threaten our military. Any other — any other retaliation they might seek is in line with threats that we face every day. Neither Assad nor his allies have any interest in escalation that would lead to his demise. And our ally Israel can defend itself with overwhelming force, as well as the unshakable support of the United States of America.

Many of you have asked a broader question: Why should we get involved at all in a place that’s so complicated and where, as one person wrote to me, those who come after Assad may be enemies of human rights? It’s true that some of Assad’s opponents are extremists. But al-Qaida will only draw strength in a more chaotic Syria if people there see the world doing nothing to prevent innocent civilians from being gassed to death. The majority of the Syrian people and the Syrian opposition we work with just want to live in peace, with dignity and freedom. And the day after any military action, we would redouble our efforts to achieve a political solution that strengthens those who reject the forces of tyranny and extremism.

Finally, many of you have asked, why not leave this to other countries or seek solutions short of force?

And several people wrote to me, we should not be the world’s policeman. I agree. And I have a deeply held preference for peaceful solutions. Over the last two years my administration has tried diplomacy and sanctions, warnings and negotiations. But chemical weapons were still used by the Assad regime.

However, over the last few days we’ve seen some encouraging signs in part because of the credible threat of U.S. military action as well as constructive talks that I had with President Putin. The Russian government has indicated a willingness to join with the international community in pushing Assad to give up his chemical weapons. The Assad regime has now admitted that it has these weapons and even said they’d join the chemical weapons convention, which prohibits their use.

It’s too early to tell whether this offer will succeed, and any agreement must verify that the Assad regime keeps its commitments. But this initiative has the potential to remove the threat of chemical weapons without the use of force, particularly because Russia is one of Assad’s strongest allies.

I have therefore asked the leaders of Congress to postpone a vote to authorize the use of force while we pursue this diplomatic path. I’m sending Secretary of State John Kerry to met his Russian counterpart on Thursday, and I will continue my own discussions with President Putin. I’ve spoken to the leaders of two of our closet allies, France and the United Kingdom. And we will work together in consultation with Russia and China to put forward a resolution at the U.N. Security Council requiring Assad to give up his chemical weapons and to ultimately destroy them under international control.

We’ll also give U.N. inspectors the opportunity to report their findings about what happened on August 21st. And we will continue to rally support from allies, from Europe to the Americas, from Asia to the Middle East who agree on the need for action.

Meanwhile, I’ve ordered our military to maintain their current posture, to keep the pressure on Assad and to be in a position to respond if diplomacy fails. And tonight I give thanks again to our military and their families for their incredible strength and sacrifices.

My fellow Americans, for nearly seven decades the United States has been the anchor of global security. This has meant doing more than forging international agreements. It has meant enforcing them. The burdens of leadership are often heavy, but the world’s a better place because we have borne them.

And so to my friends on the right, I ask you to reconcile your commitment to America’s military might with a failure to act when a cause is so plainly just.

To my friends on the left, I ask you to reconcile your belief in freedom and dignity for all people with those images of children writhing in pain and going still on a cold hospital floor, for sometimes resolutions and statements of condemnation are simply not enough.

Indeed, I’d ask every member of Congress, and those of you watching at home tonight, to view those videos of the attack, and then ask: What kind of world will we live in if the United States of America sees a dictator brazenly violate international law with poison gas and we choose to look the other way? Franklin Roosevelt once said our national determination to keep free of foreign wars and foreign entanglements cannot prevent us from feeling deep concern when ideals and principles that we have cherished are challenged.

Our ideals and principles, as well as our national security, are at stake in Syria, along with our leadership of a world where we seek to ensure that the worst weapons will never be used. America is not the world’s policeman. Terrible things happen across the globe, and it is beyond our means to right every wrong. But when, with modest effort and risk, we can stop children from being gassed to death and thereby make our own children safer over the long run, I believe we should act. That’s what makes America different. That’s what makes us exceptional.

With humility, but with resolve, let us never lose sight of that essential truth.

Thank you. God bless you, and God bless the United States of America.



Mr. Obama’s Haunting Moment

Wednesday, September 11th, 2013


SEPTEMBER 11, 2012

Mr. Obama’s Haunting Moment

A Message from

Jay B Gaskill


I am haunted by memories today.

On this date in 2001, my wife and I were in Manhattan, smelling the dust, seeing the grief and tears at close range, walking the emptying streets of Mid-town, seeing a ravaged fire truck, crumpled like a run-over toy, people huddled on street corners, jets flying over skyscrapers….

But great evil generates an outpouring of great good. By September 12th, we sensed a surge of greatness and generosity among the people who remained in Manhattan, and who gathered in a nearby park. In the following days, all Americans hoped that President Bush would emerge as the strong leader that history demanded.

Then there he was, standing in the rubble at ground zero three days later, inspired by the rough men around him [You could tell he was comfortable with them – alter all, he ran an oil rig company and a baseball team.] Bob Beckwith, a firefighter was standing next to Mr. Bush in the rubble. As he later told Time Magazine:

“I got home and I told my wife, ‘I’m going down,’ ” he said, referring to the smoldering remains of the Twin Towers.

“At first, his family dissuaded him from going to Ground Zero, but after Beckwith discovered that one of his colleague’s sons was one of the hundreds of firefighters missing, he put on his old uniform, strapped on his helmet and went to join the rescue efforts.

“Beckwith had to finagle his way into Ground Zero when he approached the heavily guarded perimeter.

“I said, ‘Come on, guys. You know I got to get in there.’ I showed them my identification card from the fire department and so a couple of guys let me through,” Beckwith said.

“Once inside the perimeter, Beckwith got a firsthand look at the charred remains of the World Trade Center and immediately began working to find survivors.”

“And the president came and he is shaking hands with all the ironworkers and all the cops and all the firemen that were down there … and I figure he’s going over to the microphones, but he makes a quick right, and he puts his arm up and I said, ‘Oh my God!’ “

After helping the president onto the truck, Beckwith begins to crawl down, but Bush stops him.

“He says, ‘Where are you going?’ I said, ‘Uh, I was told to get down.’ He said, ‘No, no, you stay right here.’ “

A voice called out “We can’t hear you Mr. President!” President George Bush picks up a bull horn:

President Bush: Thank you all. I want you all to know — it [the bullhorn] can’t go any louder –  I want you all to know that American today, American today is on bended knee, in prayer for the people whose lives were lost here, for the workers who work here, for the families who mourn. The nation stands with the good people of New York City and New Jersey and Connecticut as we mourn the loss of thousands of our citizens

Rescue Worker: I can’t hear you!

President Bush: I can hear you! I can hear you! The rest of the world hears you! And the people — and the people who knocked these buildings down will hear all of us soon!

Rescue Workers: [Chanting] U.S.A.! U.S.A.! U.S.A.! U.S.A.! U.S.A.! U.S.A.! U.S.A.! U.S.A.!

President Bush: The nation — The nation sends its love and compassion –

Rescue Worker: God bless America!

President Bush: — to everybody who is here. Thank you for your hard work. Thank you for makin’ the nation proud, and may God bless America.

Rescue Workers: [Chanting] U.S.A.! U.S.A.! U.S.A.! U.S.A.!


Such images and thoughts still haunt me as I watch our latest president wrestle with the consequences of his irresolution and reluctance in the face of America’s enemies.



Peggy Noonan on her blog in the Wall Street Journal

“The president has backed away from a military strike in Syria. But he can’t acknowledge this or act as if it is true. He is acting and talking as if he’s coolly, analytically, even warily contemplating the Russian proposal and the Syrian response. The proposal, he must know, is absurd. Bashar Assad isn’t going to give up all his hidden weapons in wartime, in the middle of a conflict so bitter and severe that his forces this morning reportedly bombed parts of Damascus, the city in which he lives. In such conditions his weapons could not be fully accounted for, packed up, transported or relinquished, even if he wanted to. But it will take time—weeks, months—for the absurdity to become obvious. And it is time the president wants. Because with time, with a series of statements, negotiations, ultimatums, promises and proposals, the Syria crisis can pass. It can dissipate into the air, like gas.”


Mr. Obama, speaking to the American people last night, while backing down….

“Even a limited strike will send a message to Assad that no other nation can deliver. I don’t think we should remove another dictator with force. We learned from Iraq that doing so makes us responsible for all that comes next. But a targeted strike can make Assad or any other dictator, think twice before using chemical weapons.”

…over the last few days we’ve seen some encouraging signs in part because of the credible threat of U.S. military action as well as constructive talks that I had with President Putin. The Russian government has indicated a willingness to join with the international community in pushing Assad to give up his chemical weapons. The Assad regime has now admitted that it has these weapons and even said they’d join the chemical weapons convention, which prohibits their use.

It’s too early to tell whether this offer will succeed

“America is not the world’s policeman. Terrible things happen across the globe, and it is beyond our means to right every wrong. But when, with modest effort and risk, we can stop children from being gassed to death and thereby make our own children safer over the long run, I believe we should act.”


Frederick W. Kagan, resident scholar at the American Enterprise Institute, former professor of military history at the West Point Military Academy, writing in The Weekly Standard

“American interests in Syria are clear: preventing terrorists from acquiring chemical weapons; depriving Iran of its most important ally and staging-base in the Middle East; and preventing al Qaeda from establishing an uncontested safe haven in the Levant.


“Syria’s use of chemical weapons by itself dramatically increases the risk of those weapons falling into al Qaeda’s hands. Any action the United States and its allies could take to dissuade Assad from continuing that use—thereby persuading him to keep the weapons locked up as securely as he can—is a step toward reducing that risk.

“The best solution, of course, would be to destroy the weapons or remove them from Syria. Simply bombing them from the air poses unacceptable risks, unless they are about to be seized by terrorists. There is a risk of releasing clouds of toxic gas that could kill scores or hundreds of innocent civilians, even when using advanced bombs designed to incinerate chemical weapons. Using such advanced munitions, moreover, would require putting manned aircraft over Syrian airspace, which in turn means attacking the Syrian air defense system in advance. Bombing secured bunkers also makes it impossible to determine with certainty whether all of the weapons were destroyed, while simultaneously exposing the storage facility to plunder by scattering (at the very least) its guard force.”



If you haven’t yet read them, I invite you to take a look at two brief pieces I posted earlier on The Policy Think Site (,

Obama at War: Bully like a Flea – Sting like a Butterfly


Our President’s Teaching Moment



My most recent article concluded with the observation that “many of Mr. Obama’s missteps have been less damaging than they could have been because he has been remarkably lucky. We should all wish President Obama good luck this time.

The President’s good luck, on this occasion, came in the form of a “rescue” by Russia’s Thug-In-Chief, V. Putin, who has proposed to “help” us persuade the embattled Assad regime to transfer its nerve gas weapons (some of which may represent the remnants of Saddam’s WMD cache) to the UN.

Peace is at hand? Don’t hold your breath.

Our President was spared the embarrassment of a full back-down or the ignominy of a botched attempt to punish a brutal dictator. He was spared by an authoritarian Russian leader with an agenda.

Over the last 4 years and 8 months, our president has demonstrated only one clear leadership skill.  It is his talent to do smooth, chameleon-like mutations of positions calibrated to advance his personal political advantage in the moment.

It is an act.  The act is wearing thin. 


So I am haunted by memories today – and by the “what ifs?” they inspire.

A thought experiment: Setting aside all your political / ideological leanings, ask yourself this-

 Given this President’ bundle of character traits, predispositions and decision-making disabilities, as we now see them revealed, would he be up to the challenge of a 9-11 attack?


Except for the quoted material from other sources,

Copyright © 2013 by Jay B Gaskill, Attorney at Law

Please forward this as you see fit.

For all comments and other permissions, contact the author via email at

Red Line

Thursday, September 5th, 2013


By Jay B Gaskill

Having asked the Congress to validate his Red-Line ultimatum to Syrian President Assad, Mr. Obama flew to Sweden where he said: “I didn’t set a red line. The world set a red line.”

One can’t make this stuff up.


I strongly suspect that the pending red-line crisis in Syria represents the very first time that Barack Obama has ever made a serious threat, one with serious consequences for backing down or carrying it out.  We – and the world – are just observers. He is the student.

[As]…”former Alaska Gov. Sarah Palin posted on social media”: ‘So we’re bombing Syria because Syria is bombing Syria? And I’m the idiot? … President Obama wants America involved in Syria’s civil war pitting the antagonistic Assad regime against equally antagonistic al-Qaeda affiliated rebels. But he’s not quite sure which side is doing what, what the ultimate end game is, or even whose side we should be on.’”

  • Quoted by Washington Post columnist, Ruben Navarrette Jr.

[President Obama] “…lectures Congress, seeking an accomplice while talking about accountability. Perhaps he deserves Congress’ complicity – if he can convince it that he can achieve a success he can define. If success is a “shot across the bow” of Syria’s regime, he cannot fail: By avoiding the bow, such a shot merely warns of subsequent actions.”


[His] “…sanctimony about his moral superiority to a Congress he considers insignificant has matched his hypocrisy regarding his diametrically opposed senatorial and presidential understandings of the proper modalities regarding uses of military force. Now he asks from the Congress he disdains an authorization he considers superfluous. By asking, however reluctantly, he begins the urgent task of lancing the boil of executive presumption. And surely he understands the perils of being denied an authorization he has sought, then treating the denial as irrelevant.”

  • George Will, writing in The Washington Post

“For Mr. Obama, national security is theater.  Mr. Obama is playing a game.  …his national security posture is a self-serving story, a tale being made up as he goes along, part of the book about himself he is writing in his head (“Dreams of my Exploits”).  [Sadly] our president is addicted to the politics of gesture.”


This President’s “red line” rhetoric has provided an opportunity for Americans to attain a long neglected measure of moral and policy clarity.  As spectators in a presidential teaching moment, we should watch closely and absorb the lessons.

Therefore we need to face the snake head on.  This is the dangerous creature called by many names, among them, the fanatical, anti-western Jihad.

Mr. Obama’s teaching moment has dragged the Congress, the Democratic Party and the country into a thicket of foreign policy incoherence, exposing US Middle East policy for the ambivalent mess that it is.

Ever since the September 11th, 2001 attacks on American soil, the USA has been caught up in a war declared by bloody-minded jihadist fanatics against Western liberal democracy. This was not a war of our choosing. But doubt not that we are actually at war.

Notwithstanding that reality, it is apparent that the policy gurus in this administration are caught up in the illusion that militant Islam can be tamed by gestures, soft words and diplomacy. In this conceit, they are Austria before the Anschluss. This reality-disconnect frames the context of our president’s teaching moment.  He hopes to authorize a retaliatory gesture utilizing US missiles and bombs against the entrenched Syrian regime. He may even fantasize that Iran will tremble.

Because we are actually at war, our situation requires a much clearer understanding of what we are fighting against. The enemy is militant pan-Islamic nationalism, driven by its followers’ audacious vision of a united Islamist superpower bestriding the Middle East like a colossus, armed with nuclear weapons, able to intimidate the decadent West and reverse the humiliations of the last century. They will not surrender.

Talk of the coming Syrian “gesture” attack takes place in a larger, graver context: We need above all, to prevent militant Islam from getting nuclear weapons, starting with Iran.  Everything else is a subordinate concern.

I suspect that this “teaching moment” is why the congressional hawks are leaning in favor of a force authorization – not because it is sufficient or even makes strategic sense, but in the faint hope that Mr. Obama will learn from the experience to be much tougher, much sooner.  But the notion that Mr. Obama can be toughened by a one-off Syrian missile strike is as unrealistic as is the administration’s delusion that Islam can be tamed by perpetual softness.




American foreign policy, whether in peace or at war, should stand on three legs:

  1. American self-interest;
  2. The moral compass that defines and guides us;
  3. A prudent regard for that which is realistically attainable.

The prospect of pursuing the forthcoming symbolic shot-across-the-bow, motivated by moral considerations only, without the realistic prospect of having any lasting real-world consequences for good or ill, teeters for lack of two of three legs of any solid, coherent foreign policy. A political gesture of this sort is neither prudent, nor in America’s self-interest.

In previous articles, I have noted that many of Mr. Obama’s missteps have been less damaging than they could have been because he has been remarkably lucky.

We should all wish President Obama good luck this time.

But I am praying for far better judgment and resolve than he and his team have so far demonstrated.


First Published on The Policy Think Site and linked Blogs.

Copyright © 2013 by Jay B Gaskill, Attorney at Law

Author contact for permissions and comments is via email-








Friday, August 30th, 2013


Bully Like a Flea – Sting Like a Butterfly[1]


A Brutally Honest Analysis by Jay B Gaskill

This needs to be put bluntly: For Mr. Obama, national security is theater.  

Mr. Obama is playing a game.  In this game, the President of the United States gets to use the giant defense arsenal of the US security and military apparatus as a prop for the “grand gesture” on the world stage.  Mr. Obama seems to lack the insight to realize that he is playing that game. Nor does he appear to realize that his national security posture is a self-serving story, a tale being made up as he goes along, part of the book about himself he is writing in his head (“Dreams of my Exploits”).

Our president is clueless about his own decision processes. Our president is addicted to the politics of gesture.  His foreign policy is gesture politics, writ large.

Consider is how the Middle East looked before the disastrous Arab “Spring.”

The long-standing peace treaty between Egypt and Israel (negotiated with Anwar Sadat, who was later assassinated by the Muslim Brotherhood) was secure.  For the first time in memory, Iraq was enjoying a stable democratic government at peace with its neighbors. The Turkish government was still secular and tolerant, enjoying the legacy of Ataturk, the father of the Turkish Republic. Of course, Iran was engaged in a duplicitous jihad strategy, building an atomic bomb capability, lying about it, supporting terror through its client state, Syria, and the jihadi Hezbollah forces supported there, and lying about that.  Syria was run by Assad, a terrorist-supporting dictator operating under the false colors of a moderate dictator.

All that was before the Arab “Springtime for Jihad” emerged, full blown, a bitter parody of hope and change. Now consider the present moment.

  • The fragile optimism of the Arab Spring has evaporated.
  • The liberal-secular elements in the Syrian rebel forces have lost control of the revolution there.  Now the Muslim Brotherhood and other radical Islamist elements are in charge.
  • In Egypt, the Muslim Brotherhood swamped the first national election and installed one of its own as president of Egypt. In an Emperor’s New Clothes moment, Morsi was evicted. Of course, the Brotherhood is rioting; and our president is wringing his (metaphorical) hands.
  • The Iranian nuclear bomb program is approaching the point of no return (amid more presidential hand-wringing).
  • Hezbollah is now a renewed regional threat.

Let’s leave all the gestures, the spin and the blame game-aside: We face a grave threat. Wishful thinking has failed.

The US national interest does not change just because the security situation deteriorates or because POTUS chooses to ignore the facts on the ground. Consider:

  • The USA, the region and the world, still need a Middle East that is no longer a terrorist incubator.
  • This requires a stable and peaceful Iraq and a secure, productive Israel, at peace with the US and its neighbors.
  • The bloody-minded jihadists, including the Muslim Brotherhood, remain an existential threat to our security interests, and must be marginalized.
  • Iran must not be allowed to destabilize the region, and cannot be allowed to become a nuclear power.
  • Syria’s role as the terror-client-of-Iran must be ended, and Hezbollah needs to be crushed.
  • The pre-911 isolationism prevalent in the US is just as toxic now as it ever was.

None of our major security objectives can be attained, nor can our security situation be improved, by a few, pre-announced missile strikes on selected targets in Syria.  Hezbollah will not be crushed.  The Jihad will not be tamed.

The time to fruitfully intervene in the Syrian rebellion was before the Muslim Brotherhood took control of the rebels. That opportunity was squandered months ago while Mr. Obama so was absorbed in his “analytic calculations” that he failed to lead.

Either Assad will win or the radicalized rebels will.  There will be hell to pay in either scenario. But going forward, we cannot allow the hostile, terror-supporting regime poised to emerge in Syria to acquire the resources to support and export terror. 

History’s authentic leaders are remembered because they led.  History’s temporizers and appeasers are remembered because they did not. The good leaders took the stage when the moment was ripe, and boldly implemented the measures needed to protect their country’s vital interests in a time of peril. The non-leaders punted.

Leading from behind is not leadership at all.  It is a pretense.

There is one secret to coping successfully with the thuggish regimes that populate world politics.  Be tougher than they are, and never bluff. Thugs can tell the difference between the feather display of an angry peacock and the warning growl of an angry lion.

Is it too late to salvage this mess? …Not at all.

No other country in history has enjoyed the ability to project massive destructive power at the distances and to the extent that US forces still can.  Even in our weakened circumstances, America still has the raw military capability to bring down the regimes in Iran and Syria without deploying massive ground troops.  By using air power relentlessly and without concern for the opinions of others, American military assets can readily destroy the Iranian Revolutionary Guard, most of Hezbollah’s forces, the navy and air defenses of Iran, and its major economic assets.  Syria can be dealt with at the same time.  The USA is still that powerful.

When American military and national security resources are credibly unleashed, ready and willing to do real damage, they are far less likely to be used.

But is it too late for this president to salvage something from this mess?  That poses a question of character, judgment and courage.  Can you imagine this American president seizing the moment and saving the day?

I can’t.  Our president is handicapped by his own prior decisions and non-decisions, and by some innate character flaws.  In a word, Mr. Obama is decision-challenged.  Our adversaries – and they are legion – have Figured This Out.

No one is afraid of the United States under this president; Mr. Obama’s threats are likely to be dismissed as political posturing.  Perhaps they should not be, but perceptions govern actions; and thugs are goaded on by the perception of weakness.  This is one reason that the Russians did not hesitate to deploy major naval assets into the Middle East conflict region.

And it is the chief reason that weak presidents are more dangerous to the peace than strong ones.


First Published on the Policy Think Site, Copyright © 2013 by Jay B Gaskill, Attorney at Law

Permission to forward this article is granted by the author.

For comments and other permissions, contact the author via email:

[1] Apologies to the legendary American boxer, Mohammed Ali (Cassius Marcellus Clay, Jr., January 17, 1942-), who famously said, “I float like a butterfly, sting like a bee.”


Thursday, August 15th, 2013

Without its moral code, conservatism will fade away;


Conservatism can lead a 21st century American renaissance


Political Analysis


Jay B Gaskill



The alcohol prohibition era of the last century was a failed experiment in liberal social engineering. Political correctness is the new puritanism; this overreach by progressive liberalism is an opening for the resurgence of a practical, reasonable, morally anchored conservatism, presented with clarity and humor.                

Any long-term conservative recovery must grow from a well-understood and easily explained moral core.  Otherwise, conservatives will be pissing into the progressive headwinds, mouths open, eyes unprotected and compasses gone wild.

CAUTION: The conservative moral core is not centered on the feel-good therapeutic values of the left – nor is it one more version of the harsh, overly judgmental values attributed the “vast right wing conspiracy.”

By necessary implication, the conservative moral code contains the core features of our common morality, the principles and precepts that undergird any healthy civilization (as in no stealing, cheating, lying, raping, pillaging, assaulting or trespassing on/against innocent men, women and children).

People still assume that these common moral precepts are equally shared by modern liberals, but that is not always the case.  If you doubt this, study the positions of t progressive left activists on law and criminal justice, on terrorism and national security.

A robust adherence to traditional moral values among the loudest voices of the progressive left? Not so much. The Democratic Party attempts to compensate for this embarrassment by going for the images we associate with America’s moral comfort zone. Think of the liberal in Southern or Midwestern clothing, like candidates Jimmy Carter and Bill Clinton. The current leader of the Democratic Party, our president, is an outlier.  This is true both in policy terms and style. Most Americans, and a large plurality of Democrats, are disenchanted, but criticism is muted because Mr. Obama is protected by a politically-correct force field.  That free pass is revoked in 2016.


The conservative moral code inspires and drives five distinctly conservative projects:

Protect all innocent American men, women and children, whether of high or low status and power, whether rich or poor, conventional or unconventional, from criminals, terrorists, invaders and other predators, including government itself.

Protect all law-abiding productive, creative and striving Americans, whether of high or low status and power, whether rich or poor, whether conventional or unconventional, from the cadres of invasive, bureaucratic, puritanical officials bent on punishing success, hindering accomplishment and achievement, and meddling with creative initiative and freedom, in all its manifold forms.

v  Promote upward mobility for all Americans, whether of high or low status and power, whether rich or poor, whether conventional or unconventional.

v  Ensure individual personal accountability for failures and misdeeds, while protecting the fruits of success for all Americans, whether of high or low status and power, whether rich or poor, conventional or unconventional.

v  Commit to practical, commonsense policies that work in the real world; and relentlessly expose the opposite ones promoted by the progressive left.

These are the five touchstones of big-picture, morally-anchored, forward-aimed conservatism.  All the rest – the bickering, the honest the policy differences, the rhetoric, all of it – is small change.

Why are these five goals both conservative and morally grounded? How can this be explained in simple, commonsense terms?

Nineteenth and twentieth century conservatives like Edmund Burke and Winston Churchill in the UK, and eighteenth and nineteenth century conservatives like Thomas Jefferson, Ben Franklin and Abraham Lincoln in the USA were considered liberals in an entirely different context and sense than in the present usage.  They, like the shopkeepers, artisans and professionals who rose up in the 18th and 19th centuries against royal privilege and control, were not levelers, driven by resentment of the hard-won achievements of others. They were achievers and aspiring achievers in their own right, those who opposed the dead hand of the titled classes, challenging the ersatz achievement of inherited status of the complacent royals who would suppress the aspirations of the real achievers.  This was classical liberalism, and it is part of the modern conservative heritage.  It is rooted in two morally anchored ideas, a belief in the innate dignity-status of every human being, and in the concomitant right to earn and own property, including land.

There once was a rock solid moral consensus among Americans, both liberal and conservative, that went something like this:

We believe in the dignity of the individual, in her or his absolute right to earn and keep property, to defend self, family and home against predators; and we believe in a country that takes as its first responsibility the duty to protect its individual citizens from such invasions; and undertakes to refrain, itself, from becoming another invader. 

And, by virtue of our country’s essential legitimacy as a guarantor of the personal dignity of its citizens, we believe that the USA is and should remain a mighty nation worthy of defense from all enemies domestic and foreign, a defense to which we, as Americans, are firmly bound.

Somehow in the late 20th and early 21st centuries, progressive liberals “evolved”.  Now they are no longer “comfortable” with this consensus. And they have quietly discarded the classic liberalism of the Founders.

Instead, modern, movement-progressives tend to misappropriate the common language, twisting and obfuscating the old terms – for example – subordinating individual rights to collective “claims” that are deliberately mislabeled “rights”.

In manifold, subtle ways, over the better part of a century, through curriculum changes in schools and academy, through conversions of a critical mass of the chattering classes, a takeover of the media, progressives have been busy with the “mind-change project”: to overwrite the older (read outmoded) moral code with a vaguely therapeutic morality.

In place of criminal justice they propose “treatment”.  In place of individual, restorative justice, they propose collective “social justice”.  In place of the right to own property they propose “social responsibility”.  But without the right to property, we become the de facto property of the governing elites.

The key principle conservatives need to fiercely defend here is that justice and morality are part of one in the same determination: An individual accounting based on individual responsibility.

Because (to paraphrase Acton) politics corrupts, and absolute politics corrupts absolutely, the power of the “people” (read the power of political classes) to control how and where we individuals live, work, earn, keep and spend – and with whom, for whom, presents a grave moral issue.  Conservatives need to respond to all this in a way that incorporates common sense morality at every turn. Human freedom, as a value, springs from the respect for individual human dignity in the context of the moral obligation to respect the individual human dignity of those who do the same.

Beware the utilitarian argument.  Allowing a free market may be more “efficient” and may over time generate more “income”, but those very terms invite the end of freedom when its exercise is less “efficient”.  Substitute the phrase “allowing me to live my own life” for “allowing a free market”. Now spend a minute reflecting how, in an interest-group-driven political regime, being “allowed to live my own life” might become inconvenient to the political classes.

There are utilitarian arguments for protecting the “productive, creative and striving” among us from petty officials.  And there are utilitarian arguments for assessing accountability for “failures and misdeeds, while protecting the fruits of success”. But suppose these are restated as a moral principle, applicable to all Americans, whether of high or low status and power, whether rich or poor, whether conventional or unconventional. Do you sense the change?  The utilitarian arguments are suddenly ennobled and acquire potency – when the arguments are explained and added – words have the power to stop the progressive juggernaut in its tracks.

And the practice of soft-balling values in favor of utilitarian arguments can lose elections. In an astute analysis of the GOP defeat in 2008, Values Voters Prevail Again by Christopher Caldwell[1], pointed out that the republicans allowed the democrats to dominate the values debate “Where two candidates argue over values, the public may prefer one to the other. But where only one candidate has values, he wins, whatever those values happen to be.”

You may notice that I included, as a specifically conservative principle, the obligation to “promote upward mobility for all Americans, whether of high or low status and power, whether rich or poor, whether conventional or unconventional.”

America is the product of upward mobility; it is in our DNA.  The ideal of upward mobility is a statement of moral principle for Americans.

Conservatives support this ideal without using therapeutic language or proposing an open ended entitlement model.  This is a statement of conservative principle, of the core moral belief in human dignity, and of conservative support for the American Dream as a primary moral value.

Conservatives are about practical, commonsense policies that work in the real world. Upward mobility does not apply to invaders.  Nor does it entail downward mobility through welfare addiction.  But it does apply to all those “huddled masses, yearning to be free” once they are legitimately and legally present as our neighbors. It is a sign of deep respect.

As an illustration, only (this is not about personalities), I suggest that Marco Rubio, the Florida Senator, has not placed himself outside the intra-conservative dialogue by leading out on “immigration reform.”

Conservatives will disagree on aspects of the policy merits. But while doing so, every conservative in the conversation needs to explain the core moral commitment to upward mobility, and to outline workable conservative policies that are consistent with that principle.


“Government’s view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.”
Ronald Reagan, White House Conference on Small Business (August 15, 1986)

President Reagan was particularly good at this because of the confluence of unique circumstances in his life. He lived and worked among Hollywood liberals; he spent years as a patriotic spokesman for General Electric; he honed his policy and rhetorical skills as a two term California governor; he was continually underestimated by his opponents; and he achieved moral clarity in part because he was a privately religious man, and in part because the Cold War demanded and facilitated moral clarity.

Almost all Beltway politicians – and most others, tend to repeat rote phrases as a shorthand for arguments never made; or when pressed, they repeat standard arguments with little explanation and less conviction.  This leaves us with the conservative cause in the less-than-capable hands of men and women content to piss into the progressive headwinds, unaware that their mouths are open, eyes unprotected and compasses gone wild. These are the would-be leaders who are content only to “stir up the base” while persuading almost no one among the un-persuaded.

For all the reasons indicated, and more, the forward-aiming conservative case will be a compelling reason for a majority of voters in 2016 to actually elect the conservative alternative over a liberal-progressive, the virtually inevitable Democratic candidate.

But that case cannot be made just then; and only belatedly incorporated into the run up to the coming presidential election. The case needs to be made now and by hundreds of different public voices.

To paraphrase Mr. Reagan, a conservative should not speak ill of another conservative in times like these.

Every single public figure, every woman or man in the public square with a legitimate place in the conservative dialogue, everyone who begins to personify the resurgence of a practical, reasonable, morally anchored conservatism presented with clarity and humor, is hereby deemed an ally of the conservative movement and, by extension, an ally of the American Renaissance.


Government is like a baby – an alimentary canal with a big appetite at one end and no sense of responsibility at the other.

►Ronald Reagan


In times like these, all allies are to be cultivated and respected. We might as well be living in the Cold War, because the stakes for the survival of this remarkable, beloved country of ours could not be higher.

The hope of hundreds of millions of people around the globe, looking at us from a remove, are captured in the phrase, “God save America”.

But, we are the Americans. And as the Bard wrote[2], our fate is not in our stars, but ourselves….


Copyright © 2013 by Jay B Gaskill, Attorney at Law

Forwards are welcome & encouraged. For other permissions & comments:

[1] { }




Thursday, July 25th, 2013



Follow-up Analysis

By Jay B Gaskill


This follows Part One, which is posted at -

< >

That piece connected the dots between the economic crash of 2008, the Korean jet crash in SFO this year, and a number of other failures, all of which are traceable to the blind reliance on machines and/or decision formulas that failed to work as advertised.

If you haven’t read that article, please do.  It is well worth your time.

Toward the end of that piece I referred the “accidental” election of an incompetent mayor in Oakland and the complete collapse of the “state of the art” computer system that doomed the Romney presidential campaign on Election Day

Here are those tow hair-raising stories in more detail.

Both cases deserve to be studied.



Project ORCA: Mitt Romney Campaign Plans Massive, State-Of-The-Art Poll Monitoring Effort

NOVEMBER 1, 2012

WASHINGTON — Mitt Romney’s presidential campaign has been quietly assembling a massive, technologically sophisticated poll monitoring program that staffers believe will be their secret weapon in defeating President Barack Obama.


The Boston Globe 2012 :

The story behind Mitt Romney’s loss in the presidential campaign to President Obama

By Michael Kranish / Globe Staff / December 22, 2012

It was two weeks before Election Day when Mitt Romney’s political ­director signed a memo that all but ridiculed the notion that the Republican presidential nominee, with his “better ground game,” could lose the key state of Ohio or the election. The race is “unmistakably moving in Mitt Romney’s direction,” the memo said. But the claims proved wildly off the mark, a fact embarrassingly underscored when the high-tech voter turnout system that Romney himself called “state of the art” crashed at the worst moment, on Election Day.

To this day, Romney’s aides wonder how it all went so wrong.


… one factor is emerging as the essential difference between the Obama and Romney campaigns on November 6: the absolute failure of Romney’s get-out-the-vote effort, which underperformed even John McCain’s lackluster 2008 turnout. One culprit appears to be “ORCA,” the Romney’s massive technology effort, which failed completely.

Project Orca was supposed to enable poll watchers to record voter names on their smartphones, by listening for names as voters checked in. This would give the campaign real-time turnout data, so they could redirect GOTV resources throughout the day where it was most needed. They recruited 37,000 swing state volunteers for this. {But}they had issued the wrong PINs to every volunteer in Colorado, and reissued new PINs (which also didn’t work). The problems with Orca appear to have been nationwide, and predated Election Day itself.

They assured us that the system had been relentlessly tested and would be a tremendous success.

[V]olunteers were expected to print their own materials, and were mistakenly not told to bring their poll watching credentials to polling places. Attempts to communicate with the Romney campaign to ask for assistance were unsuccessful.

[There were} widespread real-time complaints and criticisms on Twitter by Project ORCA volunteers. At one point during Election Day, the system had malfunctioned so badly that desperate volunteers wondered if the program had been hacked.

Romney volunteers in Virginia confirmed that the campaign had relied entirely on Project Orca to turn out the vote in key areas such as Roanoke, where Romney and Ryan had made appearances. Volunteers who had driven to Virginia from safely-Republican Tennessee were shocked at the disorganization they encountered.

… ORCA diverted scarce resources that would have been better used physically moving voters to polling places. By a rough calculation, Romney lost the election by falling 500,000 to 700,000 votes short in key swing states. If each of the 37,000 volunteers that had been devoted to Orca had instead brought 20 voters to the polls in those states over the course of the day, Romney would have won the election.

… There was, in fact, massive suppression of the Republican vote--by the Romney campaign, through the diversion of nearly 40,000 volunteers to a failing computer program.

There was no Plan B; there was only confusion, and silence.




Portions of this section were first published on The Policy Think Site in 2010


DO NOT Try This at Home

A brilliant, tough cop, Oakland Police Department Chief Anthony Batts, is about to abandon Oakland for a better city (pick one).

[For more details, see these two stories in the San Francisco Chronicle: < > and


This follows a disastrous patch during which:

(a) Chronic municipal mismanagement led to a fiscal crash that robbed Oakland voters of the 800 police staffing level they had voted to fund (police staffing now down to 657 when even the high water mark 800 officer level was low, given the resident parolee population).

(b) Oakland’s new mayor, in an attempt to improve plummeting police morale, met with line officers in a group, asking them to recite why they liked doing police work, then left the meeting.  “On her first full day on the job, Quan tried to mend fences by meeting with the rank-and-file cops at roll call. The move fell flat with many officers, however, when – after giving a short talk and asking all the officers to introduce themselves and state why they wanted to be on the force – Quan left without taking questions.”

San Francisco Chronicle: < >

Chief Batts had briefly been able to do more with less, but now the “doing much less with much less pattern” will take hold.

The Mayor elect is an obscure former councilwoman named Jean Quan (notable, according to former San Francisco Mayor Willie Brown for having advocated “ebonics’ in an earlier era of lunacy). See Jean Quan off to rocky start as Oakland mayor by Chip Johnson, in the San Francisco Chronicle:

Ms. Quan won the office against a much stronger, more centrist (and much more pro-law & order candidate), Don Perata, even though Quan got only 24% of the vote.  This victory was accomplished by a form of vote manipulation that has its roots in the Bolshevik vs Menshevik dustup in Russia that subverted parliamentary democracy and ushered in the dictatorship of the proletariat.  The scheme avoids runoff elections and the concomitant actual majorities that they produce by a system of “instant runoff’ voter ranking.  The system (sometimes called plurality voting) has the pernicious practical effect of artificially amplifying the negative over the positive to the effect that the angry left (in this instance) slips into power against the sensible center, with a tiny plurality.

Not to put too fine of a point on it:  Ranked voting is a dangerous innovation fully capable of subverting the will of the majority.

Ranked voting is a poison pill that is designed to entrench vestiges of the has-beens (in this instance the left) in power against a reformist trend (in this case the practical center).  See my 2010 post, Quantum Vote Stealing at < > .]

The fallacy of ranked choice is that voters are fully focused on second and third tier candidates and actually think through whether they (say, by ranking Ms. Quan and their second of third choice) seriously want that person to serve as their ultimate.  Most protest votes are just that, and when a protest candidate slips through, disaster almost always follows.

Key executive positions should always require a traditional definitive choice in which a majority of the to-be-governed voters have actually chosen their leader.  Ranked voting (sometimes called plurality voting) is a bad, bad idea whose time seems to have come.

Do not try this at home.


I continue to warn everyone who cares about the future if this country: These examples are about neglecting reasonable judgments (whether about selling bad loans, making intelligent treatment decisions, safely landing an aircraft, or voting for an untested leader) and bypassing actual person-to-person trust relationships in favor of a rote formula, in the name of expediency.

Men and women are not just “in the loop”, we are the loop.  Everything else is a brainless tool, provisionally useful, but not ever to be fully trusted. It is time to wake up. The 2008-13 crashes and other disasters were just the beginning. Instead of blindly relying on algorithms, all matters of consequence to our lives must reflect the work of real people, in real time, in the real world, doing real thinking, making real judgments; and accepting real accountability.



Copyright © 2013 by Jay B Gaskill, Attorney at Law

Forwards and links are encouraged.  For other permissions and all comments, please contact the author by email



Wednesday, July 24th, 2013






By Jay B Gaskill

Aircraft, banking systems, political campaigns and medical delivery systems just don’t just arbitrarily crash. There is always a reason. …And it is not always “human error” on the ground level.  Typically, the failure was foreordained by overreliance on “decision crutches” at the management level. This is another name for trusting algorithms over human judgment.

An algorithm is just a complicated recipe, a preset series of sequential steps that, when programmed into an information-processing gadget, enables an otherwise “idiot” device to execute complicated (though sometimes catastrophically inappropriate) “decision-making” formulas without real time human involvement.   Algorithms do not bleed.  But we do.  Real world people always are hurt when algorithms fail.

Yes, there is a need for rapid fire algorithms in emergency situations when human reflexes aren’t quick enough. But we-the-people tend to be lazy (the author is no exception). Because our Brave New World is increasingly complex, we find ourselves relying more and more on algorithms to do our essential thinking for us.

A recurring theme in traditional science fiction was the rogue robot, built without a “kill switch”. We are now relying on algorithms for absolutely critical functions, all too often without any adequate human back up and without an effective human monitoring system.  This is like building autonomous robots without kill switches.

Blind reliance on algorithms is a very foolish and very dangerous mistake. We have already suffered from its consequences.  It is not too late to pull back a bit from the precipice.  But first we to need connect a few dots.


  • In 2008, investment bankers blithely relied on complex, impenetrable “asset’ bundles that included toxic loans –concealed/disguised as “assets”. The dirty little secret was that the very complexity of these devices hid an illicit alchemy that seemed to turn fecal matter (hidden bad loans) into gold (but it was fools’ gold).

For an overall review, check out these linked articles-



ü ).

The ensuing asset bubble-burst and the resulting disruptions profoundly damaged the US economy, and almost brought down the entire US banking system. Our country is still struggling to climb out of the resulting economic crater. {And our inadequate recovery is the result of relying on another set of failing economic algorithms, but that is a separate story.}

The takeaway lesson is that overly complex systems can conceal more than they reveal. When we blithely rely on these rigged systems, we are abrogating our obligation to pay attention and make sound choices.

  • The same kind of problem is surfacing in medicine.  Because government oversees insurance, and insurance oversees medicine, all of our trained medical professionals, the physicians and hands-on clinicians are now forced to warp informed clinical judgment in order to conform to bureaucratic categories.  


…Algorithms again, in one more form.

Insurance and Medicare “codes” are dumbing down ordinary medical practice.  A number of articles describe the difficulties (sometimes nightmares) of Code Driven Medicine

ü )

“Critics are deeply skeptical that electronic records are ready for prime time. ‘The technology is being pushed, with no good scientific basis,’ said Dr. Scot M. Silverstein, a health I.T. expert at Drexel University who reports on medical records problems on the blog Health Care Renewal. He says testing these systems on patients without their consent “raises ethical questions.”’



  • The tendency towards “cookbook” medicine (read – “creeping algorithm-driven stupidity”) has reached a crisis point in the mental health field where reliance on a diagnostic “bible”, the so-called “DMS-5” has collided with common sense. Couple this with the insurance code system, and we face an impending disaster.

“Glitch in medical code threatens mental health care, therapists warn.”


“Just two weeks before DSM-5 is due to appear, the National Institute of Mental Health, the world’s largest funding agency for research into mental health, has indicated that it is withdrawing support for the manual. In a humiliating blow to the American Psychiatric Association, Thomas R. Insel, M.D., Director of the NIMH, made clear the agency would no longer fund research projects that rely exclusively on DSM criteria. Henceforth, the NIMH, which had thrown its weight and funding behind earlier editions of the manual, would be “re-orienting its research away from DSM categories.” …”The weakness” of the manual, he explained in a sharply worded statement, “is its lack of validity.” “Unlike our definitions of ischemic heart disease, lymphoma, or AIDS, the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure.”’

ü }


  • Millions of us are now passengers in high performance aircraft that are frequently more controlled by algorithms than by pilots. Machines are making crucial life and death decisions for us, and pilots are undertrained. Is this is dangerous? Ask the passengers of Asiana Flight 214.

In that disaster, an undertrained Korean pilot and his crew blithely relied on an automatic landing system in the San Francisco airport. The plane came in to low and slow, the tail caught on the runway berm, and a fully loaded Boeing 777 was wrecked.

A few days later, an experienced, hands-on pilot, speaking for many senior pilots, sounded a warning in the San Francisco Chronicle.  “Cockpit automation can have a pernicious effect on those skills because the emphasis now in most airline training is on technical understanding – to the near exception of traditional flying and decision-making skills known as ‘airmanship.’

“Now we see a new phenomenon: Experienced pilots, who never fully developed their basic flying skills, passing their airline training with flying colors. These pilots go into the cockpit to perform work that resembles that of a systems monitor more than of the work we associate with an aviator.

“The July 6 crash of Asiana Flight 214 at SFO illustrates the worst potential shortcomings of this new training system which, by the way, motivates airlines to offer early retirement to the more senior pilots in order to replace them with a generation who adores the new technology.”

The author, seasoned Pilot James F. Atkinson, was onto something. I recommend his entire article for close study…because it has across-the-board implications for all of us.

ü  )


Ranked voting formulas (yes, another algorithm) have propelled incompetent, untested leaders into important elected positions with as few as 24% of the votes, all in the name of good government.  Mayor Quan of Oakland, California, for example, won over a better qualified candidate who got almost twice her votes (SEE ARTICLES CITED[i]). As a result, Oakland, CA, which was a beleaguered city, a work-in-regress, is now close to an urban basket case under Mayor Quan highly criticized leadership.

And welcome to the era of checklist voters, who leave their critical judgment behind, and rely on some catechism of Official Party Doctrine (which is yet another algorithm, dumbed down for the harried, hurried voter-bots who want to do the “right thing” but need to be told what that is).

The losing Romney presidential campaign crashed in large part because of the turnout differential.  Mr. Obama’s core constituency of benefitted groups had been conditioned to respond to a perceived political threat to their privileged status, a response pattern that was cultivated over a period of three decades at least.  Democratic turnout could be activated via an existing social network that remained intact between campaigns. Mr. Romney’s campaign geniuses relied on a turnout algorithm (you can’t make this stuff up) in an effort to compensate for the absence of a social network potentially ready to respond to an existential threat to their aspirational status.  The existing social network, the diverse mix of aspiration-motivated people sometimes called the “Tea Party” were unmoved by a weak media campaign.  The Romney turnout algorithm failure has rarely been discussed.




Examples of the improvident reliance of algorithms in politics, medicine, air travel and ordinarily life are far too many to catalogue.  My readers are welcome to send me their own examples to incorporate in the discussion.

All of these examples are about neglecting reasonable judgments (whether about selling bad loans, making intelligent treatment decisions, safely landing an aircraft, or voting for an untested leader) and bypassing actual person-to-person trust relationships in favor of a rote formula, in the name of expediency.

We Americans have come to love such formulas, not only because they seem easier to rely on than our own judgment, but also because they can hide our accountability. “I’m sorry that I had to fire you, but I had no choice,” is easier to say than, “I fired you because you were just not good enough.” …Or, “I’m sorry the voters didn’t turn out after all we did,” is easier to say that “I’m sorry that we did very little street level work to get out the vote.”

The next time you are asked to make an important decision, or to rely on a decision-making or “action” process that consists of “a formula or algorithm”, remember Chesley “Sully” Sullenberger whose skill and judgment as a pilot of US Airways flight 1548 safely brought down a crippled airliner with 155 passengers and crew in the Hudson River in 2009.  No set of computer instructions would have as quickly, intelligently or effectively adapted to that engine failure.

Men and women are not just “in the loop”, we are the loop.  Everything else is a brainless tool, provisionally useful, but not ever to be fully trusted.

Our duty to ourselves, and those loved ones who will follow us, is to push to stay in the game at every level as thinking, informed individual human beings.

This may seem hard, but it is not “rocket science”.

Instead of blindly relying on algorithms, all matters of consequence to our lives must reflect the work of real people, in  real time, in the real world, doing real thinking, making real judgments; and accepting real accountability.

Anything else leads to a series of “train wrecks”. The 2008-13 period was just the beginning….


Copyright © 2013 by Jay B Gaskill, Attorney at Law

Forwards and links are appreciated. For other permissions and comments, please contact the author by email–




[i] and


Wednesday, July 17th, 2013

As I write this, Holder’s Justice Department is “reviewing” the question whether to federally prosecute Mr. Zimmerman, post acquittal.  This would be a profound abuse of power and should lead to the Attorney General’s impeachment, in my opinion.  Mr. Zimmerman was not a saint, but he was no murderer and not a bloody-minded racist. His acquittal should be the last word.


I have addressed this sad case in three separate posts.  Here is the last one, including links to the first two.



exposes a political THREAT

…TO your SELF-DEFENSE rights

this post:

Also see –



A Not-Politically Correct Commentary

By Jay B Gaskill, Attorney at Law

In a long delayed Florida jury trial, young Zimmerman has been acquitted and young Trayvon Martin is dead.

That result was unsurprising. Cutting through all the rhetoric, this was the state of the evidence:

A neighborhood watch volunteer in a high crime area (Zimmerman) got into a dispute with a suspected prowler (Martin). A physical struggle ensued (note that the jurors found that Martin was the aggressor); and Zimmerman found himself on the bottom, being pummeled against the concrete. In this position, Zimmerman managed to get control of his lawful firearm. He pulled the trigger once at contact range. He survived the encounter, while, tragically, Mr. Martin did not.

Now imagine this scenario with players changed. A middle aged woman is the neighborhood watch volunteer on that fateful night, and the suspected prowler is a large white man. After a confrontation, she finds herself on the bottom, being pummeled against the pavement. Miraculously, the neighborhood watch woman manages to pull out a self-defense handgun (let’s assume it was borrowed from a friend.) She manages to pull the trigger at contact range … the large white man dies.  The local police refuse to prosecute. The DA, under political pressure from the gun control lobby, files murder charges against her.

Thank God that Lady Justice is still blind to race and gender.

Over my decades as a defense attorney I served in Alameda County, CA, a high crime, mostly urban jurisdiction, that includes Oakland and nine other cities. I eventually came to notice that self-defense cases had better outcomes in the more conservative parts of my county (such as Fremont and Livermore) than in the more leftist jurisdictions (such as Berkeley and Oakland).


Why is this? I asked myself.

During those decades in court rooms and jail interview rooms, I observed accused persons fare differently in different cultural settings; and that one’s political predispositions matter in the jury room.  I learned that a majority of the gentle souls of the humanitarian left tended to assume that criminal aggression was a “cry for help”, or the involuntary response to “bad economic conditions”. For these tender-hearted souls, aggressive self-defense was uncomfortably “selfish”; and passive resistance or flight was always preferable.  Of course, that was never the law in California, but such biases do inform and distort how the evidence in given criminal case is weighed in the real world inhabited by criminal lawyers. Competent defense attorneys, whether liberal or conservative, need to avoid getting stuck with such jurors. And God help the defendant who has hurt a minority person (read oppressed victim) in any way…even in self-defense.  Such cases were and still are a defense nightmare to try, because passions and biases easily trump justice under the law.

Things are changing. Our country is at a watershed moment.  African Americans are now just one thread in the diverse tapestry of American culture, no longer enjoying the exalted status of “chief among the oppressed”. Racism persists, of course, in this county and all others. But we now face anti-white racism, anti-Jewish racism, anti-Hispanic, anti-Asian…and so on.

It is more important than ever before in our history that our institutions of justice simply follow the law. Lady Justice was depicted as blind for a reason.

The right to self-defense is at the core of all our other rights.  It flows directly from the understanding in the American Declaration of Independence that we are all individually endowed with the right to life, liberty and pursuit of happiness, rights bestowed not to some abstract collective membership race or status, but to each of us as individual human beings.

The brand of “justice” currently being pursued post-verdict by the Trayvon Martin advocates is collective social retribution; this has nothing whatsoever legitimate to contribute to the question of individuated justice in a court of law.

Collective justice is the enemy of individual justice; it is at its worst, a version of the justice of the lynch mob.

A final thought: Why do some neighborhoods feel the need for neighborhood watch volunteers? Why is the suggestion that I recently read in a major media outlet that Mr. Zimmerman (and by extension all the other anti-crime volunteers) should have “just made a phone call?” not absurd on its face?

You can answer the foregoing questions for yourself by addressing these:

What is the 911 response time in your neighborhood?

…in the neighborhood of someone near and dear to you?

How long are you prepared to wait, cowering in your home, for outside help?

How long would you like your loved ones to wait?

How comfortable are you with local police staffing and availability?

This is not about Zimmerman or Martin. It is much more than that. It is a discussion in the Public Square about the Zimmerman trial instead of riots.  Let’s talk about public safety resources and how we can have safer communities and neighborhoods.


Copyright © 2013 by Jay B Gaskill

The author served as the Chief Public Defender for Alameda County, CA.

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Wednesday, July 3rd, 2013

{Download the PDF Version of this article from this LINK  — .}




Liberty, never secure, is now at significant risk.  The complacent among us console themselves with the observation that, at least…”Slavery is not an option”.  …To which I must add….unless it is disguised by layers of well-engineered deception.


Because slaves themselves were owned, they could not own property.  In the brave new world of the postmodern multicultural moral relativism, fewer and fewer of us truly own anything…because keeping “property” is a disparaged value. As a consequence, few of our possessions are ever held free and clear: They are held subject to neo-puritanical disapproval, “guilt” taxes, indebtedness (publically encouraged and partially subsidized), to a bewildering network of regulations to further the “public good”… all as defined and imposed by the political class.  The denigration of the basic human right to own property is part of an attempt to recondition human nature to accept less and less freedom. Some of our libertarian friends are particularly blind to the traps this cultural trend presents. When it comes to the legalization of narcotics and recreational psychotropic drugs, libertarians tend to focus on the reduction of state interference with personal behavior and tend to ignore the consequences: A drug dependent population is more easily controlled.

Freedom does not flourish in a well-tamed population under tight cultural control, where independence and creativity are “managed” though drug use (prescription for faux conditions, or non-prescription psychotropic drugs).  The notion of partial legalization with “appropriate controls” echoes the Brave New World where therapeutic intervention and “‘adjusted” expectations are used to reduce noncompliant behavior. Drug liberalization can look on the surface like a libertarian dream.[1] Actually, a well medicated politically correct population is the Marxist dream where the secret police get extra- light duty after the “withering away” of the state – a “libertarian” nightmare that takes place after human nature has been reformed into a “New Man.”[2] My drug reference was just an illustration of the larger issue: Without sharp limits on its power, the temptations for the state to exercise the technologies of social control will not be resisted.  Which raises the largest issue of all: The state has no business attempting to change human nature.


Recall that even slaves are provided for.  Slavery is possible whenever people are reconditioned into forgetting what it really means to be free. We need to grasp the cultural context for any realistic assessment of freedom’s prospects.  In the modern condition we take for granted that almost all social and moral boundaries are subject to elimination.  This predisposes the modern mind to look at any new attack on traditional boundaries as “probably a good thing.” Consider what has already taken place in the developed Western democracies: With breathtaking speed, the intelligentsias have been accommodated to the progressive dissolution of boundary conditions, including those of the nation state, those between achievers and dependents, those between good and evil, between criminal conduct and mental illness and between the forcible government reallocation of resources, and theft… and so on.  In this way, the sophisticated Western defenders of liberty were disarmed.


JULY 4, 2013



A Conservative Renaissance

A Modest Proposal

By Jay B Gaskill, Attorney at Law

Traditionally, liberals have been about challenging boundaries; and conservatives were about defending them.  But both liberalism and conservatism occasionally crash through the overreach barrier. The progressive liberals have now gone over that line.


This leaves the task of restoring balance to the conservatives. But are we/they ready?


Under the prevailing cultural conditions, the GOP (in the USA) and the Conservative Party (in the UK) are locked into a cyclical pattern of rejection, then a temporary ascendance in which conservatives return from exile as a corrective to the progressive juggernaut that has captured the Democratic Party and the Fabian socialists who have captured the British Labour Party.  The conservatives are allowed to stick around just long enough to stop the hemorrhage; and to repair some, but not all of the damage.

This is fire truck conservatism: People are grateful for their rescue but they don’t invite their rescuers to stay for dinner.

Conservative leadership seems to take hold for the long haul only when a particular leader (Think Eisenhower or Reagan in the USA; Churchill and Thatcher in the UK) has traction in the culture and on Pennsylvania Avenue or Downing Street. The key ingredients of such major leadership shifts are the breakdown of trust between the to-be-evicted governing political class, and the emergence of a new, potent trust-chemistry between the new conservative leadership cohort and the people at large.

But trusted leaders are not picked by a political committee or via a series of managed primaries. They emerge from the herd by the force of their personalities, courage, charisma, commitment and record of accomplishments.

The conservative philosophy that animates the GOP and its British counterpart has much more to offer than an occasional charismatic leader. It can endure for the ages, but only to the extent that its most visible advocates are seen as dedicated a great political, cultural and economic Freedom-Renaissance. A quick glance at the current crop of politicians suggests that heavy lifting is required. The new crop of conservative leaders must be very well prepared to promote and explain a practical agenda for America’s restoration, and to anchor each part of the project in conservative principles that are clear and consistent with common sense.

That agenda is nothing short of restoring America by restoring freedom.  It is founded three forward-leaning conservation principles (set out below). But these ideas, values and principles must be sincerely, articulately and persuasively connected to policy proposals, and to the real world aspirations of all Americans.

In an earlier era, President Reagan was gifted in doing this task, partly because he had years of experience among liberal democrats, partly because he was a skilled actor who believed his material. The task is the essentially the same, but the message is updated to address the crises of the 21st century.  I propose that three principles, when explained and connected, have the power to inaugurate a sea change in the American political dialogue. I believe that once they are absorbed into the DNA of the new generation of conservatives these core ideas will ignite a Freedom Renaissance movement that will alter the course of history.

  1. The conservation of human dignity against all the bureaucratic minds and structures, private and public;
  2. The conservation of the conditions in which productive human creativity can flourish by providing a bulwark against the arbitrary controls, constraints, repression, excessive taxation and perversion-of-purpose that creative communities are typically subject to;
  3. …and the conservation of the core moral infrastructure from which individual human dignity and productive human creativity derive their legitimacy.

A comment about why this set of principles is both new and necessary to the postmodern culture. Libertarians advance freedom as a primary good, without further elaboration or explanation.  But freedom cannot be understood as more than indulgence without a larger moral framework that contains it. I maintain that the justification (from a metaphysical point of view) for freedom as a necessary value is that creation and human creativity become primary values as soon as they are linked to a life affirming moral order. And creativity requires freedom in the context of the larger moral framework. Without creativity, the human species dies.  Without robust creativity linked to the moral order, the human species becomes innovatively suicidal. The moral foundations of a free society are deeply tied to the spiritual traditions that connect creative communities with life-affirmation and the enhancement of the human condition as seen through the lens of awakened moral intelligence.

I’ve written about this at length elsewhere, but note the difference between the Italian Renaissance creative community and the captive community of Nazi German rocket scientists at Peenemunde.  And note the fact that whenever a tyranny is first established, the creative ones seek refuge somewhere else.  The USA has benefited immensely from creative refugees.

Each of the three conservation principles listed have been more honored in the breach than in historical practice; and not one of them is widely recognized as essential to conservatism or as crucially important to human survival.

The advocates of liberty are often silent about the “Why?” questions, as in, “Why have liberty?” and “What good is freedom anyway?” Simple ideas with radical implications are easy to state, but they are anything not simple when their implications and interconnections become apparent. {This thesis is developed in more detail, with references in two of the author’s articles that are available on the web – Links below.}

Heavy lifting will be required because the conservative movement is incoherent, tired and pessimistic.  Conservatives tend to be unified only by their opposition to the excesses of “the left”. They tend to be held together between elections by repeated bromides that have lost the power to move us.  The key features of a living, forward –leaning conservative movement are nowhere to be found in the hearts and minds of the political hacks who mindlessly repeat the tired slogans.  People just tune out the catch phrases and talismanic incantations like – “Big government is bad”; “Big spending is bad”; “Freedom is good”; “Taxes are bad”.

The tune-out is a symptom of broken promise fatigue. Somehow, these same operatives leave equally banal slanders unanswered, allowing even the modern conservatives to be smeared with impunity. Who responds (and with what force and energy) when we hear that “Conservatives are mean spirited”; “Conservatives favor the rich over the poor”; and “Conservatives are against social progress”?

What I am proposing here will demand actual thought by all leading conservatives in the Public Square, and sturdy commitment and enduring passion. All this needs to be done with good spirited, but sharp rhetoric in a coordinated push-back, push-forward theme pursued simultaneously on several fronts: in the academy, in the media, in the Public Square, and among the policy makers and power brokers.

Evangelists have given evangelism a bad rap. The “ordinary” people are very good at spotting phonies and hucksters…although history suggests that it sometimes takes them a while to figure out that they’ve been had.  The Freedom Renaissance push needs real programs and real ideas, all of which are based on a conservation and progress agenda. This can’t be just some one-off pre-election run-up. When going against the tide, we succeed only with a long term effort fueled by fierce, realistic optimism and sustained by awakened moral intelligence.

Yes, it is probably too late to reboot and reenergize many of the half-awake political hacks who dominate the public square; and the task of administering plastic surgery on the sad faces of institutional conservatism is a dead end.  There is every reason to be optimistic in the mid-term, so why not be optimistic in the short term and the long term.  All we have to lose is the dead weight of pessimism.

Our situation calls for sharp, likable, engaging personalities.

So…where are they? They are already among us, waiting for the starting gun, waiting for you and me to create the buzz and energy about creativity and freedom, about boundaries, moral and practical, that sustain progress.

We are the milieu from which the next top leaders will emerge.


July 3rd & 4th 2013


Copyright © 2013 by Jay B Gaskill, Attorney at Law

Author Contact for all comments and permissions:

Links to related articles:

The American Creative Surge  (75 pages)

Creativity and Survival (14 pages)


[1]  I recommend taking a close look at the early George Lukas film THX 1138, where the state encourages drug use.  (  The animating vision was a commitment to individualism, and a vivid illustration of the amoral idiocy of the bureaucratic state in its many forms.

[2] This idea been popular among fascists and socialists over the last 80 years: Think of the “Soviet Man – and Woman”, and the “Nazi superman”. The common thread in these schemes is the employment of state power to remold human nature into persons who no longer exercise “unhealthy individualism.”

Wake up – Stealth Threats to Freedom

Tuesday, June 25th, 2013



The Treaty Clause  is – The American Trojan Horse

The greatest current threat to our cherished constitutionally protected freedoms is the stealth erosion of the very protective framework that has worked to protect them during the hard times.  We tend to rally whenever there is a clear frontal assault, but we are very slow to respond when the threat is cloaked, and the approach is gradual.  This article deals with one such assault pathway, the Treaty Clause of the US constitution.


When the US constitution was drafted, America’s founders were thinking of trade treaties and military alliances.  They provided that a ratified treaty could not easily be undone, putting the policy in Article Six of the Constitution (antedating the adoption of the Bill of rights). Ratified treaties would be “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

No one leader in that dawn-time of the American republic seriously considered  that an international treaty regime could even exist, much less seek the power to control essential aspects of American domestic life.  But times have changed. We need to wake up and smell the threat.

The internationalists among us dream of the day when all national sovereignty has gradually been absorbed into a web of international agreements.  …And the US Constitution is an obstacle to their agenda.

e were given a sacred trust: the US constitution and its Bill of Rights and a durable system of checks and balances.  This is what is meant by American exceptionalism. This legacy is ours to keep, but only if we remained informed, diligent and fierce in its defense, because it is also ours to lose.



A: By losing a war…or by signing and ratifying the wrong treaty without losing a war.

The treaty clause of Article Six of the US constitution poses a constitutional threat to the rest of the constitution because of its ambiguity.  It was designed in an era when there were no international regimes-in-the-making that were seeking the power to consolidate control over the sovereign states (in the name of peace) by getting them to surrender sovereignty bit by bit, for “the greater good.”

If a ratified treaty can run roughshod over all state laws in a way that the federal government cannot do (because the federal power is restrained by the 9th and 10th amendments of the federal constitution), what is to prevent a ratified treaty from effectively overriding some other provision of the US constitution as well?  …Nothing at all in my opinion.

Some of the jurists who proclaim that our constitution is “a living document” really mean that its provisions are so plastic that they can be “reinterpreted” to accommodate “new conditions” and “the general welfare.” This means as a practical matter that any given moment we may be only one Senate or Supreme Court vote away from losing the Bill of Rights. The founders never contemplated treaties in which a sovereign power like the USA would be tying itself to international control regimes. Failing to anticipate that modern circumstance, the founders failed to provide a constitutional failsafe, even one the effect that a treaty is the law of the land but is always subordinate to the bill of rights as they apply to US citizens.

When a sovereign loses a war for example, no one doubts that a surrender treaty could give it all away. It seems that the progressive left is engaged in achieving U.S. surrender by stages…all for the greater good.

I first researched the treaty problem back in January, 2007. I had been invited to sit on a Moot Court panel as a “Supreme Court” Justice (at Boalt Hall, my former law school). I found myself dealing with a with a constitutional law case that prefigures some chilling legal scenarios.  Among my fellow judges was an old acquaintance, Federal Judge D. Lowell Jensen, former County DA. [Judge Jensen was President Reagan’s head of the Justice Department’s Criminal Division.]  I’ll skip the specific Moot Court problem we addressed, but my study of the treaty power issue was a wakeup call for me. Here are one of my takeaway lessons:

Q: Could the Treaty Clause of the US Constitution be used to override inconsistent constitutional provisions, even the Bill of Rights?


Q: Why have the legal minds in the last administrations so steadfastly resisted having the US join the International Criminal court (ICC).

A: Because they’re not crazy. Under that treaty, the so called Rome Statute, the International Court has the power to subject U.S. citizens to trials without the constitutional protections we enjoy, like a jury trial, and imposes severe penalties for crimes that no U.S. legislative body has ever enacted.  Note an irony:  Both Russia and China have agreed to the treaty.

So far, the US Senate has never ratified it.

President Clinton signed the Rome Statute treaty in 2000. The second Bush administration refused to join the ICC and sent a note to the UN in 2002, revoking Clinton’s signature and declaring that US recognizes no obligation toward the Rome Statute or to the ICC.

President Obama has reversed Bush’s position.



Q: How Many Votes does it take to override – or even repeal the Bill of Rights?

A: Only 73, consisting in the “vote” of the president, that of 67 senators and 5 Supreme Court members.

“[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”. (U. S. Constitution Article II Section 2.)  


A treaty is ratified by the US Senate by a two third’s majority.  So the is 72 (67 plus 5) and one for POTUS.

It is axiomatic that the Constitution means what five members of the Supreme Court say it means. The language of Article Two, Section Two of the Constitution, based on textual analysis alone, can be construed such that a treaty enforced by the president and congress, could give effect to a draconian scheme of domestic regulations by an international commission. The conflicting provisions of the rest of “the Constitution” would simply be overridden. If you doubt this is a possibility, check out the straightforward language of Article Six of the U S Constitution:

“[All] Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”.

(U. S. Constitution Article Six) 


The textual interpretation of the internationalists who want to bypass the US Bill of Rights “obstacle:” is very straightforward. If the original text had said “the Constitution(s) or Laws of any State”, a reviewing court might reasonably conclude that a treaty and enabling legislation would only override the various state constitutions. But the Article Six refers to “the Constitution” (in the singular), creating a pregnant ambiguity.

I have any doubt whatsoever that a future Supreme Court (especially one in which one or two of the current conservatives are replaced with more internationalist ones and the decision is made under great political pressure) might go the wrong way.  It does not boggle this lawyer’s mind to envision a slightly reconfigured SCOTUS, five members of which are willing resolve the ambiguity in favor of an expansive reading of the treaty power:  I can readily imagine the ruling that conflicting provisions in the U. S. Constitution must give way to effectuate the ratified treaty’s implementation.

The process of freedom’s erosion begins in small increments.  There are a number of plausible scenarios involving the Treaty Clause.

For example, I can imagine the case of Max, an ex-patriot German publisher living here on a visa. Max is prosecuted for running holocaust denial pieces in Europe. So this ex-pat German national relocates to the US, relying on the US First Amendment cases for insulation. He publishes the forbidden books in Brooklyn intending to export them to Europe and the Middle East.  Assume the US has ratified a treaty with several European countries (including Germany) that provides for the co-prosecution and reciprocal extradition of all persons within their territory for listed “hate” crimes, including holocaust denial.  Assume the congress has passed implementing legislation.

In this hypothetical, Max could easily extradited, the New York Times vs. Sullivan case notwithstanding.  [In the New York Times v. Sullivan 376 U.S. 254 (1964), the Supreme Court gave strong First Amendment protection for publishers who print otherwise false and defamatory material.]

In another example, I can imagine a climate control treaty that bypasses the Congress and imposing crippling restrictions on US energy production, manufacture and even personal conduct, no matter what limits are present in the US constitution.

Once the High Court takes the step of allowing a ratified treaty to override any part of the constitution– even by implication, a precedent will have been established. This will opens the door wide for various lower federal courts (think Ninth Circuit here) to take further bold steps in the same direction.

The recent proposed “gun treaty” would have overridden federal and state laws in much the same way.

From this or any similar “small” case, it is easy to imagine how more and more power can be transferred from the Congress and the executive to an international body whose power derives from Article Six, “All Treaties … shall be the supreme law of the land.”

When I reviewed the federal cases on point, I was surprised and dismayed to discover that there is no contrary authority, no single case that would get in the way of the kind of power grab I’ve just described.

For example, my survey of the major Supreme Court decisions over the last 89 years demonstrates that the foreign policy powers of the President can override contrary state laws, especially when he (or she) makes an “executive agreement” with another sovereign (even without a ratified treaty).

Local laws affecting insurance proceeds relating to the holocaust and compensation for assets seized by the Soviets were overridden based solely on the foreign policy powers of Clinton and FDR.  When a signed treaty and Congressional implementation are added to the mix, we get an enhancement of federal power: “The President and the Senate may enact law through treaties that the President and Congress could not do through ordinary legislation.” See the migratory bird case, Missouri v. Holland, 252 U.S. 416 (1920).

Note that in a number of cases conservative libertarians are seeking to restrain the government’s over-expansive use of the Commerce Clause to justify regulations of individual private behavior. A treaty can easily overcome any limitations in the Commerce Clause authority.

In a different case, military wives fared better than the migratory birds. Executive agreements between the US president and foreign powers were held not to subject civilian family members of military personnel to military tribunals (here the wives were being court-marshaled for allegedly killing their husbands). SCOTUS held that the wives retained the Sixth Amendment’s protections while living in US military bases in Britain and Japan. See United States v. Belmont, 301 U.S. 324 (1937) But note the difference: There was not a ratified treaty in the wives’ case that placed them outside the US constitution. Had there been one authorizing the prosecution of civilian military personnel in military courts (or even foreign courts), the constitutional rights of those American civilians could well have been forfeit.

None of the Supreme Court cases that have limited the President’s foreign policy powers because they interfere with protected domestic rights have involved a ratified treaty and implementing congressional legislation.  The Supreme Court has not established any clear bulwark against a treaty that conflicts with constitutional provisions. 

There is a dangerously growing probability that a future court will actually hold that some provision of the U.S. constitution gives way when it conflicts with a contrary provision of a ratified, implemented Treaty.

We now have a president who was apparently willing to exploit the treaty power to contravene the second amendment’s “impediments” to large scale gun confiscation in the USA. This was a blatant attempt to bypass the states and the House of Representatives by exploiting the treaty power.

The misuse of the treaty power is a clear and present danger to our cherished liberties and freedoms.

We are on a slippery slope and it seems that our president is just fine with that. For these and a host of other reasons, it is imperative that the US Senate not remain in the control of progressive internationalists – of compliant party members when we have a progressive internationalist president.  We do not have the time or the political will to amend Article Six, inserting a freedom firewall, so we are tasked to fight this battle over and over again. As Jefferson said, “What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance?”

Jay B. Gaskill


First published on The Policy Think Site and linked Blogs. Copyright © 2013 by Jay B Gaskill, Attorney at Law

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