Month: February 2023

Yesterday, we discussed a series of cases in which individuals who were clearly engaged in self defense were arrested and prosecuted for purely political reasons.  Recently, a new case has been brought by prosecutors who also appear to be unconcerned with the law or justice, this time in Arizona.

According to Fox News, “George Alan Kelly, 73, was charged with first-degree murder in relation to the Jan. 30 death of Mexican national Gabriel Cuen-Butimea. Authorities are remaining quiet about specific details surrounding the shooting, but Santa Cruz County Sheriff’s Deputy Chief Gerardo Castillo told Nogales International that law enforcement authorities were called to Kelly’s ranch located in Kino Springs regarding a report of shots fired. Upon arrival, deputies found a deceased Hispanic male around 100 to 150 yards away from Kelly’s home, according to the outlet.” 

Kelly was immediately arrested for First Degree Murder, and is currently being held in custody, unable to post a one million dollar bond. 

Under Arizona law, “(a) person commits first degree murder if…(i)ntending or knowing that the person’s conduct will cause death, the person causes the death of another person…with premeditation…”

To date, the Arizona authorities have not provided any factual basis to believe Kelly “intended” or “knew” that his conduct would cause the death of another person, let alone that Kelly acted with “premeditation.”  But some facts are provided in a Motion for Reduced Bond filed by Kelly’s attorneys; “On January 30, 2023…Mr Kelly had completed chores on his ranch and had come to his house to eat lunch with his wife.  As they ate, Mr. Kelly heard a single gunshot…he saw a group of men moving through the trees around his home.  They were armed with AK-47 rifles…he had not given any of them permission to come on his land…Mr. Kelly then went onto his porch with his rifle. The leader of the armed group of men saw Mr. Kelly and pointed an AK-47 right at him.  Mr. Kelly, fearing for his life and safety, fired several shots from his rifle…the group then began running into the desert surrounding his home.” 

Later that day, after calling Border Patrol Agents (who searched the property and found nothing), “Mr. Kelly noticed that his dogs were focused on something on the ground…Mr. Kelly approached his dogs, and observed a body lying face down in the grass.,,(w)hen law enforcement arrived, Mr. Kelly helped them find the body and he cooperated with their investigation.”

Most significantly, according to the Defense motion, “(i)t remains unknown what kind of bullet caused the wound to the person, what the time of death was, how long the body had been at that location, or where and in what position the person was in prior to receiving the fatal wound.”  

Let us assume for the sake of argument that Kelly is the one who shot Cuen-Butimea, a fact that is not clearly established at the present time.  Kelly was on the front porch of his home, on his own property. Nothing contradicts Kelly’s statement that he was confronted by armed men. trespassing on that property.  

Under Arizona Rev. Statute Sec. 13-405 (A), “(a) person is justified in threatening or using deadly physical force against another…(w)hen and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly physical force.”  According to Section B, “(a) person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act.”  

In other words, Arizona is a “stand your ground” state.  But Arizona law goes even further in allowing for the use of deadly force in the protection of property.  Under Arizona Rev. Statute Sec. 13-407(A) “(a) person or his agent in lawful possession or control of premises is justified in threatening to use deadly physical force or in threatening or using physical force against another when and to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises.”  Note the use of the word “threatening” in the statute.  That language is modified by Subsection B, which states that “(a) person may use deadly physical force under subsection A only in the defense of himself or third persons.” 

According to the Daily Mail, the deceased “tried multiple times to enter the US illegally…(r)ecords indicate he was deported several times, most recently in 2016,”  activities which would indicate that Cuen-Butimea  was engaged in criminal activity at the time of his death. If Cuen-Butimea was in the company of armed men trespassing on Kelly’s property while brandishing weapons, then under Arizona law, Kelly is well within his rights to have shot Cuen-Butimea – if that is what actually happened.

It is just as likely that Cuen-Butimea was shot by members of his own party (which would explain the gunshot Kelly heard) and left for dead before the group encountered Kelly on his front porch.

The District Attorney of Santa Cruz County is Jeffrey Rosell, who “graduated from UC Santa Cruz in 1984, and earned his law degree from the University of Southern California in 1988.  He practiced civil law for two years in southern California and spent four years as a prosecutor in Hawaii, before returning to Santa Cruz, where he has practiced ever since.”  Rosell served as the Chief Deputy District Attorney until he was appointed in 2014 by the Santa Cruz Board of Supervisors to replace District Attorney Bob Lee upon Lee’s death.  

Unlike St Louis’ Kim Gardner or Atlanta’s Paul Howard, Rosell is not obviously motivated to prosecute Kelly by overt racial politics or a desire to curry favor with potential voters. In fact, to date, the Santa Cruz District Attorney’s Office has not released a Press Release of any kind regarding Kelly’s arrest.

What then would be the political motivation for the arrest and prosecution of a 73 year old rancher who has a strong case pointing to self defense? 

As described by Phil Boas of The Arizona Republic, Kelly  “is living next to one of the most violent nations on earth, where narco-bosses and their heavily armed wolf packs roam the borderlands, trafficking people and drugs. He is living in a time when parts of the border are pure chaos. Illegal immigration is at a record high and waves of humanity are overwhelming border towns such as Yuma and El Paso. The U.S. federal government has done little to solve the problem… Kelly, however, sees strangers crossing his property and can’t know who they are and whether they pose a threat…Living in the remote desert Southwest, he probably can’t depend on law enforcement to get there quickly in an emergency.”

Despite a strong presumption in Arizona law allowing for defense of self and property from criminal activity, Kelly was arrested and charged with First Degree Murder.  Further, despite there being little evidence to connect Kelly to the death of illegal trespasser Gabriel Cuen-Butimea, other than Kelly’s own admission that he fired a shot in the direction of unknown armed men on his land, Kelly is being held in prison on one million dollars bond.

You would think that Arizona authorities would investigate this matter more thoroughly before arresting a 73 year old rancher with Arizona self defense law on his side.  But in fact, Arizona has been discouraging property owners along the border from enforcing their property rights against illegal alien trespassers for years.

According to the Arizona Daily Sun, in August of 2005, “(a)An Arizona ranch that once served as the headquarters for a civilian group watching for illegal immigrants has been turned over to two people caught trying to enter the United States illegally. The ranch was conveyed to satisfy a judgment against its owner, Casey Nethercott, a member of a self-styled border-watch group that seeks to protect private property from illegal immigrants crossing the border from Mexico…(i)n March 2003, Nethercott…was accused of pistol-whipping an illegal immigrant as he and other people…patrolled a ranch in Hebbronville, Texas…Edwin Alfredo Mancía Gonzáles, the man who accused Nethercott of hitting him, and another immigrant traveling with him from El Salvador, Fátima del Socorro Leiva Medina, filed a civil lawsuit…saying they were harmed while being held… a Texas judge issued (a) default judgment of $850,000 against Nethercott… (the) Nethercott (family) gave up ownership of the ranch to settle the judgment when challenged by the immigrants’ lawyers.”

As stated by Chris Simcox, president of the Minuteman Civil Defense Corp. in 2005, “If the federal government was doing its job, ranchers would not be living in fear…They can’t even protect their own property for fear of these frivolous lawsuits when people are trespassing on property,’ he said. Ranchers ‘are held captive by the federal government who tells them, ‘Well, we can’t protect you but you can’t do anything to protect yourself.”‘

The prevailing view on this issue is expressed by Jacob Hornberger of the Future of Freedom Foundation; “(A)s a former trial attorney who practiced law for many years along the border in Texas, I..advis(e) these conservatives and right-wingers to not shoot and kill these undocumented immigrants…if they…shoot these immigrants…they will find themselves indicted, convicted, and incarcerated for murder. Moreover, no judge is ever going to permit them to defend against the murder charge by claiming that they had the right to kill ‘invaders’ of our country.”

Of course, Hornberger admits that “it’s not clear yet that Kelly did, in fact, commit the shooting.”  Nonetheless, Hornberger expresses the belief that “this shooting in Arizona…is a direct consequence of the socialist immigration-control system that both right-wingers and left-wingers have foisted upon our land…(with) open borders – genuine open borders – people would be free to cross back and forth between nations without any restrictions. Thus, Mexican citizens would be crossing the border by simply driving on a public road and entering the United States. In other words, there wouldn’t be any need to trespass onto people’s property as a way to avoid getting caught by the Border Patrol…under a system of genuine open borders, Gabriel Cuen-Butimea would be alive today, no doubt working peacefully for an American employer wishing to hire him.” . 

Given this history of punitive legal action taken against ranchers along the Southern border who try to protect their families, livestock and property from illegal activity, it is no wonder that Kelly was arrested and incarcerated before any real investigation of Cuen-Butimea’s death was even begun.

But, as we have argued throughout this series of articles, justice is accomplished through a vigorous defense, and the assertion of the rights of the accused.  Kelly may be in a very difficult position now, but unless there is evidence discovered to contradict his version of events, the presumption of innocence remains with Kelly, and the prosecutor is still obligated to prove his guilt beyond a reasonable doubt.   

Judge John Wilson served on the bench in NYC

Illustration: Pixabay

In October of 2020, we discussed the arrests of several individuals for conduct that, under normal circumstances, would constitute self defense. As we also discussed, there were obvious political motivations for the arrest of each of these people, motivations which led prosecutors to ignore each defendant’s inherent right to defend themselves, others and their property.

Readers can be confident that the American justice system remains strong.  Each of the defendants we discussed more than two years ago has had their case resolved in their favor.  However, in Parts 2 and 3, we shall examine the continuing threat of criminal prosecution based upon political considerations.

We began our 2020 review with the arrest of Police Officer Garrett Rolfe in Atlanta Georgia, for the shooting of Rayshard Brooks.  During an investigation, Brooks had grabbed the Taser from off the belt of Officer Rolfe’s partner, and then pointed that Taser at the Officer.  Rolfe then shot and killed Brooks.   

Officer Rolfe was arrested and charged with murder by Atlanta District Attorney Paul Howard within days of the shooting,   despite a Georgia law which states that “Sheriffs and peace officers…may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others…”  

Why the rush to judgment by the Atlanta District Attorney?  According to the Law Enforcement Legal Defense Fund, “(t)he District Attorney, Paul Howard, is under criminal investigation himself, for allegedly misappropriating over $100, 000 in taxpayer funds. He also faces a runoff election against a string (of)challenger(s). Politics, rather than faithful adherence to the law…led Mr. Howard to wrongfully pursue these charges against Officer Garrett Rolfe.” 

As we noted at the time, “(t)he shooting of Brooks led to more riots in a city already suffering from the effects of riots after the death of George Floyd in Minneapolis… (t)here is an argument to be made that (the case was) brought in an effort to quell further protests and riots.” 

We are happy to report that in August of 2022, “Peter J. Skandalakis, the lead prosecutor appointed by Georgia Attorney General Chris Carr, determined Garrett Rolfe was justified in shooting Brooks in 2020 and dismissed charges against him…(t)he investigation and analysis of several video sources determined Brooks took (Rolfe’s partner’s) Taser and fired it at him. Investigators said Rolfe determined Brooks posed an immediate threat when wielding the Taser. ‘It’s my conclusion that the use of deadly force was objectively reasonable,’ investigator and former prosecutor Danny Porter said.”  

Currently, Officer Rolfe has been reinstated by the Atlanta Police Department, with back pay, and is “suing the city of Atlanta and former city officials for the violation() of (his) constitutional rights and false arrest.”

We then discussed the case of Mark and Patricia McCloskey in St Louis, Missouri; “the McCloskeys sat in their backyard together having dinner. Suddenly, as they ate, a mob of hundreds of screaming people destroyed a wrought iron gate with a no trespassing sign on it and came pouring in, moving toward them quickly…(t)his mob was clearly intent on violence…the mob threatened to murder him and his wife. Then they threatened to kill the family’s dog.  Panicked, the McCloskeys called the police. Then they called the neighborhood security patrol, but no one came. They had no choice to protect themselves.” 

In that effort at defense of themselves and their property, “Mark McCloskey…came out with (an) AR-15 rifle, according to court records, which said Patricia McCloskey…displayed a semi-automatic handgun. No shots were fired.”  Yet, St Louis Circuit Attorney Kim Gardner wasted no time in charging the McCloskeys with felony unlawful use of a weapon. “Gardner said their actions created the risk of bloodshed during an otherwise peaceful protest.” 

Gardner brought these charges against the McCloskeys despite a Missouri law which states “(a) person may…use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person.”  

In spite of their self defense claims, in June of 2021, the McCloskeys both plead guilty to reduced charges,   but only after Circuit Attorney Gardner was removed from the case.  In December of 2020, “a city judge…disqualified Circuit Attorney Kim Gardner from prosecuting Mark McCloskey… Circuit Judge Thom Clark II stated that a special prosecutor shall be appointed to take over the case…’Seeking to enhance her personal interests, Ms. Gardner distribute(d)…two different emails following the June 28 event,’ Clark wrote. ‘Importantly, the emails solicit(ed) donations while highlighting Defendant and the event surrounding his alleged criminal conduct. Both emails (were) created within a five-day window of her decision to charge Defendant on July 20, linking her prosecutorial discretion to money solicitations.’”  

Since then, Gardner has been reprimanded by the Missouri Supreme Court for ethical violations unrelated to the McCloskey case.   As she is described by the St Louis City Journal, “Gardner remains focused not on law and order but on social justice – and on bizarre self-aggrandizement. During her short tenure, the circuit attorney’s office has had more than 100 percent turnover, the equivalent of losing 470 years of collective experience. In January 2020, Gardner filed a federal civil rights suit against the City of St. Louis, the St. Louis Metropolitan Police Department, and the St. Louis police union, alleging a racist conspiracy to oust her from office, in violation of the Ku Klux Klan Act of 1871. Gardner soon appeared on PBS to declare St. Louis ‘ground zero’ for criminal-justice reform efforts and likened any attempt to hold her accountable to a ‘modern-day night ride.’”  

Like Atlanta DA Paul Howard, St Louis Circuit Attorney Kim Gardner had obvious political motivations for the arrest and prosecution of the McCloskeys – in this case, Gardner wanted to signal her support for those protesting in favor of “social justice.”  Once more, however, the slowly grinding wheels of actual justice came to a fair resolution that was very different from the original inflated charges.

Then there is the now-infamous case of Kyle Rittenhouse. discussed more fully here.   Rittenhouse was arrested for the shooting of three protestors in Kenosha, Wisconsin, two of whom died.  As is well known, after a jury trial in November of 2021, Rittenhouse was acquitted of all charges.  The evidence established clearly that Rittenhouse had been defending himself, as even the only survivor of the shootings,  Gaige Grosskreutz, “admitted under cross-examination that Rittenhouse did not shoot him when he had his hands up after a confrontation. Instead, he admitted, Rittenhouse shot only after Grosskreutz pointed his own 9mm handgun at Rittenhouse’s head.”

The only difference between the Kenosha DA, Michael Graveley, and the prosecutors in Atlanta and St Louis, is that Graveley was less overtly political.  Unlike Gardner and Howard, Graveley and his trial attorney, Thomas Binger, did not comment on the Rittenhouse case, even after the acquittal. 

Nonetheless, as in Georgia and Missouri, Wisconsin law on self defense states  “(a) person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person…(t)he actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” 

As we stated in 2020, “(o)nce more, the strength of America’s legal system is displayed to full effect.  Though the arrests and prosecutions of Officer Rolfe, the McCloskeys and Kyle Rittenhouse were rushed to satisfy the appetite of an angry and violent mob, the deliberate process of the rule of law has come to the aid of each.” 

But the proper resolution of these matters has not ended the use of political motivations to justify the arrest and prosecution of individuals involved in self defense that is not approved of by the powers that be.

The Report concludes tomorrow

Judge John Wilson served on the bench in NYC

Photo: U.S. National Archives

So much is happening in China’s military development programs and foreign affairs that analysts in Washington are no longer making “what if” arguments but have moved the discourse toward debating about “when.” Concern in the democratic West extends across a wide swath of threats from Chinese surveillance balloons over sovereign US territory to military weapons deals supporting Russian aggression in Ukraine that could lead to regional war across Europe. China today possesses a military shipbuilding industry that outpaces America’s. From submarines to satellites China is designing a military, in concert with Xi Jinping’s aggressive foreign policy, that is recalcitrant to nations urging Beijing to behave as a responsible partner in the international rules-based system. 

This week Chinese researchers revealed that Beijing plans to deploy almost 13,000 satellites in low-orbits, under the project code “GW.” The system, when in place, will be capable of spying on rival networks such as Starlink and carry out anti-Starlink missions. Professor Xu Can, of the People’s Liberation Army (PLA) Space Engineering University in Beijing, cited the development in a paper published in February in the Chinese journal Command Control and Simulation. The plan calls for it to launch satellites in the near future before Elon Musk launches his planned network of 12,000 satellites in 2027. Starlink satellites can receive data from DOD to coordinate positions and they are equipped with monitors to watch the space environment, according to the Chinese paper. The researchers suggest that this requires China to build a more powerful system to identify, track and, using new weapons, be capable of destroying Starlink. It notes that China’s system will include lasers and high-power microwaves.

From the stars to the bottom of the seas, Xi Jinping is overseeing a military development program that is destabilizing the world and threatening the democratic peace. This week HI Sutton, in Naval News, reported that China’s XLUUV (extra-large underwater drone) design, which is similar the US Navy’s Boing Orca, will have advanced weapons on board beyond what the Orca can provide today. Sutton points out that while the US Navy is in the lead in experimentation and orders, China’s XLUUV represents a “significant leap” in technology and will be armed with four torpedo tubes. It not only represents a capability lacking in the Orca, China has at least four additional designs already being tested in the water. Images release by Chinese shipbuilding organization CSSC 705 Institute indicate the underwater drone is built for export, too. It is the first to include specialized sonar with the torpedo tubes. When operational it will need to be autonomous and, as such, represents an increased risk of blue water accidents.

In a recent meeting in Moscow, China’s Foreign Minister, Wang Yi, is quoted China-Russia relations remain “mature, resilient and stable” after being test by “international storms.” Although the two communist states are allied in some areas, there also is a quiet but competitive environment between the two in Central Asia. China is beginning to expand its “private security companies” (PSC’s) in the region in support of its Belt and Road Initiative (BRI). They are, however, de facto armies. Analysts point to Tajikistan and Kyrgyzstan as the two countries most likely to receive the security forces, according to Sergey Suhankin of the Jamestown Foundation. Today, he says, the PSCs’ should be viewed as being more of a “continuation of business by other means” rather than military-political tools or instruments of geopolitical competition. China faces negative sentiment in region due to its anti-Muslim policies. The PSC’s offer a two-prong advantage for Beijing. They will be on the ground to restrain Sinophobia and quell and anti-China demonstrations or activities. Second, and perhaps more significant, is that these officially “non-official” forces will be acquiring real world experience that could be used in other theaters of operation. China’s soft power approach could quickly transform into a hard power conflict. Suhankin points out in a February 22 article that “The strategic importance of the region is highlighted not only by the attention given to it by Chinese government agencies but also by the existence of more than 30 large research institutions—including those under the umbrella of China’s largest and most reputable universities—specifically tasked with researching and monitoring developments in Central Asia.” The pattern is clear. No matter where one turns, China is on the move and becoming increasingly aggressive in its policies. Chinese war planners are trained to examine the battlefield as Sun Tzu described long ago. He wrote that an army must climb high to see farther down the road. China’s allocation of resources to programs that are offensive in nature points to a road filled with conflict if the West does acknowledge what is occurring today.

Daria Novak served in the U.S. State Dept.

Photo: China Defence Ministry

Ninety-seven years ago, the Soviet Union laid its first modern territorial claim to lands and islands located in the Arctic region. More recently, in 2001, recognizing the area’s potential for economic wealth from potential energy exports, Russia submitted a claim to an extended continental shelf beyond its 200-mile exclusive economic zone. In December, due to Putin’s invasion of Ukraine a year ago, the the G7, EU, Canada, and Japan began implementing a $60 price cap of Russia’s seaborne crude oil exports. China and India quickly seized on the opportunity for inexpensive energy offered by Russia. The Economic Times reported, however, that there may be additional ceilings on Russian petroleum products later this year that will greatly impact Russian exports. In retaliation, Putin announced that those countries that adhere to the price cap or other sanctions will be prohibited from buying Russian energy.

Additional sanctions will place Russia in a complicated situation as most shipping insurers are members of the “Price Cap Coalition.” The majority of the world’s cargo companies are subject to it, according to Grant Turner, of the Jamestown Foundation. He says that “Russia may struggle to export from freeze-prone ports due to a reliance on foreign ice-class tankers—though China is bypassing this via the few ice-tankers Beijing and Moscow own.” Recent data from Russian sources claim that the country experienced an increase in oil production last year by two percent to 535 million metric tons and a growth in oil exports of seven percent. In January, the Russian publication Sputnik claimed that this helped Russian budget revenues in 2022 rise by 28 percent, or $36.7 billion. In the first two quarters of 2022 most of Russia’s Arctic oil exports went to Northern Europe. That declined in the last half of the year to about one-third and, Turner says that the High North News reported that by November “shipments had almost completely pivoted to Asia.” 

Russia surpassed Saudi Arabia as China’s primary source of oil in 2022. Turner says good data is difficult to find on China’s current Arctic crude figures, but it appears that Russia’s discounted prices can meet its short-term needs. Beijing is in a solid position to leverage its influence over Moscow as Putin needs the energy sales. China last year announced that it is retaining its coal-fired electric plants for 40 years. It imports less than 10% of its coal. Over 55% of Chinese energy comes from Chinese-mined coal. As needed, it can obtain energy resources from non-Russian sources as China is expanding its influence operations in the Arctic. Turned argues that “For the United States and its partners, India’s case is perhaps more concerning. From April through December 2022, Russia exported about 64,000 barrels per day (b/d) of Arco and Novy Port grade Arctic crude to India.” By last October Russia was India’s largest source of crude (22%) and by November broke an export record with 6.67 million barrels of Russian crude sold to India. Last year India released its official policies for the Arctic (May 2022) and Antarctic (August 2022). What is significant is that the Arctic strategy, notes Turner, “is distinguished by its discussion of raw materials, trade, development and security.” In December the Economic Times pointed out that although Russia was not mentioned by name, the country is expected to remain a primary partner in achieving India’s goals with a focus on energy and trade. 

In a Jamestown Foundation China Brief last November, Sudha Ramachadran argued that India’s presence in Arctic politics may create another friction point in the Arctic as China is a rival for Russian energy resources. Washington is left of the discussion as the Biden Administration has failed to appoint an Ambassador to India and cannot challenge New Delhi’s reliance on Russian resources. As of January 15, the Biden Administration is allowing the continued importation of Russian petroleum products into the United States via India and China, according to the Times of India. Perhaps, the United States need to revisit its Arctic energy policy, too.

Daria Novak served in the U.S. State Dept.

Photo: Pixabay

America’s national security is threatened by internal corruption.

There is a terrible reality that Americans must face. The system of checks and balances that has prevented abuses of power in the past is facing an unprecedented challenge. Our journalists, who previously provided the transparency so urgently required are now mired in partisanship, leading them to extoll the virtues of their favorite leaders and ignore their crimes.

Throughout history, otherwise dignified and intelligent nations have fallen prey to elements within whose abuse of power is so overwhelming that it can change the very character of its society.  The Roman Republic was crushed when powerful men destroyed its traditions and commenced a monarchy.  The people who overthrew a Czar were themselves overthrown by Communists who established a nightmare regime.  One of the more educated countries on Earth descended into the insanity of Naziism.

Many believe that an end to individual liberty cannot happen in America. Our freedoms seem to be as ever-present and permanent as the very oxygen we breath. Our institutions were established by brilliant men who understood the dangers that could be faced, and set up a system of checks and balances that could withstand the onslaught of greedy and power-hungry interests.

That paradigm stood the test of time. Despite individual incidents of corruption and assaults on liberty, American government stood strong. The original evils of slavery, segregation and the disenfranchisement of women were overcome. When one branch or sector disregarded the law or the Bill of Rights, others corrected course.

The threats of the 21^st century are, however, unprecedented.  The corruption from individual persons or parties is not the whole issue; frankly, that could be dealt with in the same manner as past instances. The problem is the systemic rise of partisanship within key portions of the government, and the dire failure of the media to report the issue.

If the abuses were limited to mere financial crimes with no further implications, the current environment of corruption would be bad but not necessarily a threat to the very safety of the nation and the foundation of our freedom. Unfortunately, that is not the case.  What has occurred in the 21^st century is far worse. Bluntly, President Biden has accepted family and probably personal financial gain from China, not for the sale of a product or legitimate service, but from the provision of illicit influence. 

It’s not a case of first impression.  There is little doubt that Hillary Clinton destroyed federal evidence.  Anyone other than a powerful government insider would have been charged, convicted and punished for this act, let alone the underlying crime that was covered up.

As Secretary of State, Ms. Clinton set up an unsecured private email server, endangering national security. When discovered, it was necessary to examine the evidence to determine what damage had been done to the nation.  Ms. Clinton willfully destroyed that evidence, both physically by smashing relevant devices and by using a “bleach bit” program to permanently erase computer files.  According to 18 U.S. Code § 1519, “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

But Ms. Clinton, a former First Lady, Senator, and Secretary of State was neither charged nor punished.

Similar to Biden’s relations with China endangering the nation, Clinton approved the sale of uranium, the basic ingredient of nuclear weapons, to the Russians.  Russia was then able to own about 20 percent of U.S. uranium production capacity. The payback? A related donation was made to the Clinton Foundation of millions of dollars.  Bill Clinton then received a $500,000 speaking fee in Russia. Were there details in those destroyed emails?

As dangerous as these deeds are, the failure of the normal procedures of justice to properly respond to them are even more distressing. Similarly, the normal journalistic response has been missing with just a few exceptions. 

When the New York Post exposed the Hunter Biden laptop revelations, most media sources ignored the issue, and some outlets even ridiculed the newspaper for its work, which should have been awarded the Pulitzer Prize.

Illustration: Pixabay

Before we recommend that Catholic institutions refuse all federal funding in an effort to avoid federal rules that conflict with their religious belief, a recent decision from the Eight Circuit provides a different perspective, albeit from a different angle.

In  Sisters of Mercy v. Becerra,   “a  coalition  of  entities  affiliated  with  the Catholic Church . . . challeng[ed] the implementation of Section 1557 of the Patient Protection and Affordable Care Act (‘ACA’)…(a)ccording to  the  plaintiffs,  “the  Department  of  Health  and  Human  Services  (‘HHS’)…interpret Section  1557  and  related  antidiscrimination  laws  in  a  way  that  compels  them  to perform and provide insurance coverage for gender transitions.”

Unlike the District Court in Hammons, the Eigth Circuit took pains to discuss the dilemma presented by HHC’s interpretation of Section 1557, and its effect on religious institutions; “Title IX exempts from its restrictions ‘an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.’ 20 U.S.C. § 1681(a)(3)…(i)n 2016, HHS promulgated a ‘final rule implement[ing] Section 1557 of the Affordable Care Act (ACA) (Section 1557)’…(t)he 2016 Rule defined ‘[c]overed entity’ as ‘[a]n entity that operates a health program or activity, any part of which receives Federal financial assistance’…(i)n the 2016 Rule, HHS “concluded that almost all practicing physicians in the United States are reached by  Section  1557  because  they  accept  some  form  of  Federal  remuneration  or reimbursement…”

Significantly, the Eighth Circuit noted that “(w)hile the 2016 Rule provided that the statutory exceptions  applicable for discrimination based on race, color, national origin, age, and disability applied…it  omitted  Title  IX’s  religious  exemption.” 

This 2016 interpretation of Section 1557 was continued by HHC in the final rule adopted in 2021.

A group of Catholic organizations realized that under the government’s interpretation of Section 1557, a religious hospital could be forced to participate in sexual reassignment surgery. These organizations then sued to prevent Religious health institutions to be required to  “provide, perform, pay for, cover, or facilitate access to health services for gender transition.”

In granting the Sisters of Mercy a permanent injunction against the enforcement of Section 1557 against religious health institutions, the Eighth Circuit held that “the plaintiffs have suffered an injury-in-fact from the government’s interpretation of Section 1557… [p]laintiffs’ refusal to cover gender-transition procedures in their health plans stems from a First Amendment exercise of their religious beliefs… intrusion  upon  the  Catholic  Plaintiffs’  exercise  of  religion  is sufficient to show irreparable harm.”

It is important to note that there are several significant differences between the District Court decision in Hammons and the Eighth Circuit decision in Sisters of Mercy – differences which make the Hammons decision dangerous to religious liberty.  

Hammons was brought by a private individual against a private institution, while Sisters of Mercy was brought by a group of Catholic health care providers against the government.  Government interference in religious freedom is directly proscribed by the US Constitution, which is why the Eighth Circuit prohibited the government from bringing enforcement actions against these Catholic institutions.  The back door opened by Hammons, however, would allow a private individual to assert the superiority of their right to non-discrimination over the right of a Catholic hospital to act in accordance with its faith-based guidelines. 

In other words, the government cannot force a Catholic hospital to perform sex reassignment surgery – but an individual who wants that surgery can.  As noted in Hammons, “(Plaintiff) was not a party to the (Sisters of Mercy) lawsuit…and is not enjoined by the terms of the injunction—only HHS and its agents are…Hammons private right of action is different from a potential enforcement action against St. Joseph by HHS…an injunction against government enforcement is not the same as an injunction against private lawsuits.”

Further, Sisters of Mercy is not based on whether or not a religious health care facility receives federal funding, leaving open the possibility the government could make that argument in a future effort to force Catholic hospitals to participate in gender reassignment surgery.  If Hammons is followed by higher courts, then the Sisters of Mercy injunction could be reversed – a decision which would force religious health providers to choose between violating their consciences – or closing their doors.

For the time being, then, the phrase continues in effect; federal funding equals federal rules.

Illustration: Pixabay

Judge John Wilson (ret.) served on the bench in NYC.

There is a saying that I believe I may have coined – “federal funding equals federal rules.”  This means that under the Spending Clause of the US Constitution (Article 1, Section 8, Clause 1), “the federal government (has) the legal authority to offer federal grant funds to states and localities that are contingent on the recipients engaging in, or refraining from, certain activities.” 

The Spending Clause applies to federal funds provided to States.  Regarding non-state entities, Title VI of the Civil Rights Act of 1964,  “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. As President John F. Kennedy said in 1963: ‘Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.’ If a recipient of federal assistance is found to have discriminated and voluntary compliance cannot be achieved, the federal agency providing the assistance should either initiate fund termination proceedings or refer the matter to the Department of Justice for appropriate legal action.” 

In 1972, the Civil Rights Act was expanded to include Title IX, which “prohibits discrimination based on sex in education programs and activities that receive federal financial assistance…types of discrimination that are covered under Title IX include sexual harassment…and discrimination based on pregnancy.”    

These prohibitions against racial and sexual discrimination sound reasonable on their face.  After all, why should the federal government provide taxpayer funds to States or entities (such as private colleges or hospitals) that discriminate against either pregnant women or Asian students?  Sounds reasonable, right?

But there is another saying that I did not coin – “the road to Hell is paved with good intentions.”

What began as the good intentions of discouraging racial and sexual discrimination in 1963 and 1972, has led to the Hell of government coercion in the 21st Century.  

In June of 2021, the US Department of Education issued a “Notice of Interpretation” that declared “the Department interprets Title IX’s prohibition on discrimination ‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity.”  Thus, the Department “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.” 

Then, in March of 2022, the Biden Administration issued a statement recognizing a “Transgender Day of Visibility,” in which the Administration described “new actions to support the mental health of transgender children, remove barriers that transgender people face accessing critical government services, and improve the visibility of transgender people in our nation’s data.”  These efforts include reminding “all state attorneys general…of federal constitutional and statutory provisions that protect transgender youth against discrimination, including when those youth seek gender-affirming care,” and “(r)eaffirming that transgender children have the right to access gender-affirming health care” by “expanding non-discrimination protections for transgender people in health care, housing, education, credit and lending services, and community safety programs.” 

Recently, “(t)he U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) issued a…final rule implementing Section 1557 of the Affordable Care Act (ACA). Section 1557 makes it unlawful for any health care provider who receives funding from the federal government to refuse to treat an individual—or to otherwise discriminate against the individual—based on race, color, national origin, sex, age or disability.” 

Again, this sounds reasonable on its face – until this further statement is added; “beginning May 10, 2021, the Department of Health and Human Services (HHS) will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity.”

Thus, the slippery slope is made obvious, when we are on the bottom looking up.  We began with the noble intention of prohibiting the federal funding of entities that discriminate against people based on their race, sex or place of origin.  We now are at the point where a health care provider who accepts federal funding must provide treatment to an individual whatever their sexual orientation or stated gender identity.

Many Americans are in agreement with these rules.  But where does this federal mandate leave religious health care providers?  What if your faith leads you to conclude that “(c)reated in God’s image and likeness, male and female, our sexuality is a gift from God that we offer back, in love, to Him. Transgenderism violates God’s design.”

Apparently, the answer depends upon which Court you ask.

According to US District Judge Deborah Chasanow of Maryland,  “a Catholic hospital,” which was operating “in a manner consistent with Catholic values and principles,” cannot refuse to perform a hysterectomy on a women who identified as a man because the surgery “was meant to treat (the patient’s) gender dysphoria,” 

in Hammons v. University of Maryland Medical System Corp., a woman who identified as a male had scheduled a hysterectomy with Defendant St Joseph’s Medical Center, a subsidiary of the University.  The Court found that “St. Joseph’s board implemented the Ethical and Religious Directives for Catholic Health Services…as promulgated by the United States Conference of Catholic Bishops, in St. Joseph’s provision of health care,” and that those rules stated that the “[d]irect sterilization of either men or women . . . is not permitted in a Catholic health care institution.”  As a result, the hospital cancelled the surgery for Plaintiff Hammons.

Despite this clear objection based upon religious grounds, why did the Court rule against St Joseph’s?  “Title IX, Section 1557 prohibits discrimination ‘on the basis of sex’…the undisputed facts establish that the (refusal to perform the hysterectomy) was discrimination on the basis of sex because it was pursuant to a policy against providing genderaffirming care.”

In her decision, Judge Chasanow ignored the Catholic principles under which St Joseph’s hospital operates.  It did not matter that “The National Catholic Bioethics Center…has issued a guidance document that states: Gender transitioning of any kind is intrinsically disordered[] because it cannot conform to the true good of the human person, who is a body-soul union unalterably created male or female. Gender transitioning should never be performed, encouraged, or positively affirmed as a good in Catholic health care. This includes surgeries, the administration of cross-sex hormones or pubertal blockers, and social or behavioral modifications.”

Instead, the Court noted that while the Ethical and Religious Directives used by the hospital state that “[d]irect sterilization of either men or women . . . is not permitted in a Catholic health care institution,” those rules also state that  “[p]rocedures that induce sterility are permitted when their direct effect is the cure or alleviation of a present and serious pathology and a simpler treatment is not available.” 

The Court drove its opinion through this exception.  “(Plaintiff) is a transgender man who has been diagnosed with gender dysphoria,” the Court wrote. “Gender dysphoria is a medical condition recognized by the International Classification of Diseases-10 and International Classification of Diseases-11, published by the World Health Organization, and by the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association…the undisputed facts establish that the (refusal to perform the surgery) was discrimination on the basis of sex because it was pursuant to a policy against providing genderaffirming care—a policy that in practice permits all patients to obtain doctor-recommended, medically necessary hysterectomies, except transgender patients seeking treatment for gender dysphoria.” 

Most important, on what basis did the Court assert its jurisdiction over St Joseph’s, a private institution? “Defendants have…admitted that they have received federal funds.” Therefore, St Joseph’s “can be held directly liable under Section 1557 for owning and operating a hospital that adheres to discriminatory policies,” regardless of whether or not that hospital maintains a Catholic identity, and adheres to Catholic ethical and religious directives.

Thus, it bears repeating again – it did not matter to Judge Chasanow that St Joseph’s asserted reasons based in religious practice and beliefs for refusing to participate in sexual reassignment surgery.  The hospital accepted federal funding, and under the law, their religion based objections were deemed irrelevant.

The Report concludes tomorrow

Photo: Pixabay

Judge John Wilson (ret.) served on the bench in NYC

Kinetic warfare ends lives and destroys infrastructure. There is another type of war, state-sponsored cyberattacks, that costs millions of dollars every year and is one of the most dangerous types of security threats faced by the US today.

Last year the United States experienced a 57% increase in overall cyberattacks. World-wide attacks on corporate networks rose by 38%.  These attacks are responsible for communications interruptions and electrical blackouts, the failure of military equipment, and breaches in America’s national security secrets. In the private sector cyber-attacks on the US have caused financial and intellectual property losses that have paralyzed business and healthcare systems and destroyed whole companies. In 2022 the US healthcare sector suffered an average of 1,410 weekly cyberattacks per organization, which is an 86% increase over 2021. When sophisticated cyber actors steal valuable data, especially when the attack is committed by states with an adversarial relationship with the US, the damage can be extensive. A recent Heritage Foundation report says “…no threat facing America has grown as fast, a manner as difficult to understand, as the danger from cyberattacks.” 

China, Russia, North Korea, Iran and other unfriendly states and hacker groups pose a severe challenge to America’s open society. Currently, Russia presents the most sophisticated cyber threat, according to the report, with China as a close second. Hacking enabled Beijing to skip generations of technological stages helped by its rampant theft of commercial intellectual property. The threat is not new. It is ongoing but occurring on a larger scale with increasing frequency over the last decade. In one single 2015 cybersecurity breach in the US Office of Personnel Management, in a campaign believed to be undertaken by the Chinese government, 22.1 million federal employees had their personnel records with personally identifiable information obtained and exfiltrated using a backdoor tool previously employed by China to target Tibetan and Hong Kong political activists. 

In that same year Ukraine experienced the first ever successful cyber attack on a power grid; another also believed to be of Russian origin followed in 2016. A year ago, immediately following Putin’s invasion in Ukraine, Russia took down several major Ukrainian government and banking websites. Last June Microsoft shared a report that detailed Russian hacking activities and said the country has engaged in “strategic espionage” in 42 countries, including the United States. Russia hacked the Democratic National Committee and last year is believed to have been behind multiple cyberattacks that took down portions of Ukraine’s electric grid. 

Iran and North Korea are much less sophisticated than the two giants, but what they lack in expertise they make up for in malice, according to the Heritage Report. It reports that the 2012 “Shamoon” virus unleashed on the Saudi ARAMCO oil production company was a brute-force attack that destroyed 30,000 computers. Iran also committed cyberattacks against banks, government networks, and public agencies in the United Kingdom.

The US intelligence community in its 2021 Annual Threat Assessment notes that “Iran’s expertise and willingness to conduct aggressive cyber operations make it a significant threat to the security of the US and allied networks and data… Iran has the ability to conduct attacks on critical infrastructure as well as to conduct influence and espionage activities.” North Korea has also conducted high-profile cyberattacks against the US. One of the most notable was launched against Sony Entertainment, in response to a movie negatively depicting the North Korea state and its leader. According to the US report, the hackers took terabytes of private data and released confidential information, including five undistributed Sony movies.  The FBI reports that in 2021 alone, ransomware attacks hit 649 US critical infrastructure entities. Virtually every organization in the United States is at risk from cyber threats. One of the problems in defending against such attacks is that they are hard to identify and defend against in an open society. The US Cybersecurity and Infrastructure Security Agency only recently issued its first comprehensive strategic plan since CISA was established in 2018. It will focus and guide the agency through 2025.

The US cannot forget, though, that although kinetic warfare is visceral and talked about more often in news stories, a more encompassing cyber threat looms beneath the surface.