Gorsuch And The “Frozen Trucker” Case

READ: CNN: “Judge Gorsuch and the frozen truck driver” by Paul Callan

This fine article was an eye-opener for me. To many of us, it first seemed Gorsuch, though conservative, had a good record and “was the best we could get” under the circumstances.

(1) FACTS: The company truck’s brakes were defective or improperly maintained. Brake lines “freeze” because there is water in the brake lines; brake fluid does not freeze. The company was negligent, possibly criminally so if they had been on trial. They were derelict in their responsibility and promise to provide help in a timely manner in freezing weather. They ignored the driver’s repeated calls for help and his statement that his legs were becoming numb and he was having trouble breathing – the truck cab heater was defective too, and he was almost out of gas.

(2) Gorsuch ignored the responsibilities of the company in the matter, concentrating instead on what he presumed were the driver’s “duties.” Gorsuch ignored the health and safely of the driver. Every judge makes bad decisions, later to be regretted, but there’s an even more telling problem with this man.

(3) The article states: “Gorsuch was demonstrating his firm belief in the principle that the actual words of a law should be strictly applied by the court. This doctrine, often referred to as textualism, stands for the proposition that it is up to the legislature to make the law and is up to judges to strictly apply the actual words of the law. “

OUT OF ALL the considerations with which the law provides us, not least of which is following California Motor Vehicle statutes and protecting the health and safety of the driver and the public, Gorsuch focused on insubordination and dereliction of duty because the dispatcher ordered the driver to remain in the freezing truck.

(4) In other words, like Scalia, here is another man who, under the textualism doctrine,  cherry-picks his statutes in order to reach a verdict that is politically and personally pleasing to himself.

CONCLUSION: Gorsuch is not qualified to be a judge, period. Until we get a fair-minded candidate who shows an ability to look at all the facts, prioritize them and evaluate them in the broader context of all US law,  in order from trivial to essential, we should block GOP nominees for the ninth SCOTUS chair until Hell freezes over, if that’s what it takes to get a nominee committed to preserve and protect the Constitution and the individual rights of its citizens.

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The OSS and Ho Chi Minh

Book by Dixee R. Bartholomew-Feis. University Press of Kansas

The OSS and Ho Chi Minh

“Some will be shocked to find out that the United States and Ho Chi Minh, our nemesis for much of the Vietnam War, were once allies. Indeed, during the last year of World War II, American spies in Indochina found themselves working closely with Ho Chi Minh …”

Good book review. An enlightening short read. We trained Uncle Ho, and the fighters that became the Viet Cong, in guerrilla warfare. The international face of American diplomacy hasn’t usually been our Secretary of State, it’s been the Pentagon. Check it out.

 

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Church vs. State: Religious Freedom vs. Freedom of Speech

Just when we thought the HHS “Contraceptive Kerfuffle” was resolved! So-called “social conservatives” from the religious right are attempting to hijack the issue from the Catholic Bishops to put a two-pronged political and religious spin on it.

  1. The President ordered a change to the HHS ruling so that health insurers automatically provide the coverage at no additional charge to any insuring employer.
  2. Brooks and Shields agree that the Administration pulled us back from the brink of “religious war.”
  3. The Catholic Church, ACLU, women’s groups and Planned Parenthood all seem mollified.
  4. GOP candidate Romney finally announces “that attacks religious liberty and freedom of speech.”
  5. Brooks shows how the Administration’s original ham-fisted proposal for universal access to birth control, and the recent California court overturn of the ban on gay marriage, have emboldened the religious right.
  6. The religious right will step up its long-standing assault on personal choice it opposes.

Well, Catholics having been somewhat mollified, we should have been able to predict this would only prompt the religious right “social conservatives” to step in where Bishops care not to tread. Brooks explained the religious right would be opposed to any aspect of the HHS bill anyway, since the original proposal concretized their claim that the whole “Obamacare” program is an unwarranted government intrusion upon their religious freedom, not to mention the untouchable private sector.

As we’d expect from any religion-driven political movement, this is partly political and partly because in the view of the religious right, reproductive preventative services of any kind are a violation of the word of the Creator who blessed only their interpretation of our founding state papers. We only need a Supreme Court to rubber-stamp doctrinaire edicts from the great pulpit on high. The constitutional separation of church and state is being broken down, piece by piece.

In other words, in the “social conservative” view, religious freedom must trump personal freedom of choice every time. In that view, religious freedom requires an imperative to impose upon others sharia, i.e. religious law, by force of political legislation. Never mind that this is unconstitutional in the United States.

Do you want fries with that? Did you know that the very organization which aggressively defames gays and lesbians has its own anti-defamation league? The irony is that we find freedom of speech and religion being used here as a tool to silence personal liberty. See:

1. DefendChristians.org
2. Right Wing Watch
3. Christian Anti-Defamation Commission

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Taking a Second Look at Social Security

Recently Cousin Ron Lamont re-posted a Facebook “Like” quote by someone alleging that as early as 1967, liberal economists were calling Social Security a “Ponzi scheme.” This irritated me enough that I removed it with the “hide this post” tool. I’m still considering whether Facebook, a family-friendly safe space, is even the proper forum for hard-core political commentary and opinion.

So to be honest, It’s fair to say I started it all when I re-posted my personal website article “Social Security Not a Ponzi Scheme” on Facebook. Even though PolitiFact [1] rates Perry’s 2011 “Ponzi” statement as “False,” I’d have to rate the 1967 “Ponzi” allegation, far from being a “Pants On Fire” item, as “Half True.”

My cousin’s post was a fair turnaround. Now then, what’s the story about Social Security?

In 1967 Newsweek reportedly ran a column by noted liberal economist Paul Samuelson (of college Economics textbook fame). Samuelson in fact did compare Social Security to a Ponzi scheme [2]. This source cites numerous other early references to the same opinion, including the Wall Street Journal. The source notes that Samuelson was “actually drawing on the Ponzi analogy to defend Social Security”, a back-handed way for an academic to illustrate a point if ever I heard one. There’s a long history of groups that tried to pin Social Security to the mat before. You should read the PolitiFact assessment [1] of the whole issue.

In my first article I showed that Social Security is NOT a Ponzi scheme by definition, but an account that is actually but not physically held in each contributor’s name. Despite all the rhetoric about what Congress is doing or has done with those funds, the account is still due and payable according to the terms of the social contract. The obvious cause for concern is: how long will the Social Security trust fund remain solvent and be able to pay out on its obligations?

Over the years a major defense of Social Security has been that it is deemed “actuarially sound,” meaning that a statistical analysis of FICA and Employer Contributions, charting pay-in and pay-out amounts against actuarial table life expectancies shows that Social Security is paying its own way, or is at least solvent. Well, it probably would be solvent if its funds were securely invested at going interest rates like any other form of pension fund.

I recently read a cynical charge somewhere that when FDR and the New Deal Congress inaugurated Social Security in 1935, the actuarial life expectancy of the current generation of retirees was about three years. I couldn’t verify that. Social Security Online [3] presents a quite different accounting: “men attaining 65 in 1990 can expect to live for 15.3 years compared to 12.7 years for men attaining 65 back in 1940.” 1940 was the first year Americans could collect Social Security.

One study I can and did do is an analysis of my own SSI account. I started drawing on it at age 65 in 2009. Raw data includes all of my contributions from 1960 to 2009 (49 years), matching Employer contributions in like amounts, and even a withholding rate adjustment recalculation for a five-year period where I was mostly self-employed. Given the taxable income data posted to everyone’s annual SSA statements, and the withholding rate for each year [4], it is a simple matter to calculate annual withholding amounts without trying to locate 49 years of W2’s or Form 1040’s. My 49-year figures came within $186 of the government-reported withholdings. And I know exactly what my SSI income is.

I assumed those funds must be adjusted or amortized for the value of interest they should earn in any interest-bearing account, making no assumption about what the Congress and Treasury may actually be doing with our money. I chose a 5% APR. Some may object that the government doesn’t credit interest accruals to our account. I am calculating the value of the account, not just the portion allocated to us.

But what is the difference between the principal and principle plus accruals? My own contribution’s cash flow plus assumed accrual worked out to 148.47% of principal. (That’s so low because the early years contributed the least). I calculated what the future value [6] of each year’s total adjusted contribution would be by year 2009. Adding the sum of those payments plus interest equaled just under 12% of my lifetime earnings.

Obviously I won’t be publishing personal financial data out of privacy concerns, but you could run the same calculations on your own account using the source links I’ve provided in “References” below. If you do not yet have a retirement year and estimated SSI monthly income, use your SSA annual statements to make some assumptions. You need to know the effect of different retirement ages on SSI income anyway.

My own work experience may not be entirely representative. I probably worked somewhat longer than the average of all wage-earners. On the one hand, my wages include three years in the military, part-time income in college, and five years of exquisitely marginal self-employment income. On the other, I finally “capped out” on SSI contributions in my last years in the workforce. The difference is what those early years might have contributed to personal savings growth had my income curve been more even. That makes a big difference to my old age, but doesn’t materially affect the amount of my monthly social security payment.

We noted how low my wages were in those early years (even if adjusted for inflation, which we should not do here). My experience would be different from someone who went straight from college into a lifelong professional career. Those earners would “cap out” early, and the Social Security Administration fund would probably never “go into the red” for individuals least likely to depend on it. Conversely, my contributions would be proportionally greater than those of someone who, for example, left the workplace to raise a family, or on account of illness or disability. All I can conclude is that it sounds reasonable that a substantial proportion of the workforce probably survives to receive social security payments well in excess of that ever put into the fund. Perhaps people who complain that is not fair forget that’s the security benefit of a social security insurance plan. Private insurance plans of all types depend on the very same mathematical certainty of pooling of risk.

The reason we can’t add an inflation factor to our calculations is off-topic but worth examining. Savings and other interest-bearing accounts don’t take inflation into account either. There, a dollar is only a dollar whether deposited in 1960 or 2009. I ran the “Inflation Calculator” [5] on my yearly payments anyway, even though I could not fairly use them for my bottom-line calculations. It’s instructive to note that the same $36.13 worth of groceries in 1962 (my FICA contribution for that year) would cost $256.66 in 2009 dollars. Younger readers would not remember the late 1970’s, when so many of us consumed with plastic credit cards bearing an 18.99% APR, since we could more cheaply repay later with devalued dollars. It isn’t just the stodgy classic University of Chicago economic conservatives who call inflation the “hidden tax.” It is. Today we call it “Quantitative Easement.”

In my early years I argued that I would probably live to regret paying into the Social Security fund (as if I had a choice). My spreadsheet proves me wrong. Actuarially speaking, in my case, I should expect to get out of it almost exactly the value of what I put into it. The spreadsheet calculations revealed that my own account will hit “break-even” when I turn age 80.25, and my statistical life expectancy right now in 2011 is age 82.77 years.

Unfortunately, even considering my low-earning early years, the purchasing power of my Social Security “nest egg” would have been worth 91% more (almost double the real purchasing power) if we did not live in an inflation-addicted economy. Our “hidden tax” benefits the government in the short run, because it repays debt with cheaper dollars just like we did with the plastic 1970 credit cards. As you can see, in the long run inflation hurts all of us, including our government.

Unsurprisingly, conservatives and upper-income wage earners will argue that Social Security is inefficient and of limited value. Liberals, seniors and lower-income workers will argue that the vast majority of Americans need a safety net. Despite all the rhetoric on both sides, I’d like to know what is going to be done to save a program that has worked for generations of American retirees so far.

If Congress can’t or won’t fix the program we have now, it would be foolhardy to put our faith and trust in a poor substitute that takes the “insurance” out of Social Security insurance, or, even worse, in some scheme that’ll be shunted off to the same private sector that brought us toxic assets, job offshoring and an imperiled middle class. That’s just my opinion, but whether the polls prove that to be in the 51% majority or 49% minority, it can’t and won’t be ignored.

©Alex Forbes 2011

References

[1] PolitiFact, “Shacking up: Social Security & Ponzi schemes
[2] Liberally Conservative, “Perry Wasn’t the First
[3] Life Expectancy for Social Security, SSA
[4] Social Security Administration Trust Fund Data
[5] Bureau of Labor Statistics CPI Inflation Calculator
[6] Future Value: I couldn’t get the built-in Excel function to work properly in my spreadsheet. Just use the formula FV = PV ( 1 + i )^ t (see NetMBA Future Value) which, in the Excel cell, would look like this: =D5*1.05^G5 if cell D5 contains the principal and G5 contains the number of periods. 1.05 is the assumed interest factor compounded annually.

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Social Security Not a Ponzi Scheme

Many Americans were surprised to hear any frontrunner candidate for President, even Texas Gov. Rick Perry, say recently in the GOP candidate debates that Social Security is a Ponzi scheme. As quoted by the Washington Post on August 29, [1] Perry claimed:

It is a Ponzi scheme for these young people. The idea that they’re working and paying into Social Security today, that the current program is going to be there for them, is a lie,” Perry said. “It is a monstrous lie on this generation, and we can’t do that to them.”

It’s a lie only if and when Congress reneges on a solemn US government promise and obligation. Seniors who have paid into the Social Security fund all their working lives should be outraged. The young and those who are only beginning working careers might well find cause for alarm in those words. I believe we can set the record straight here while still bypassing 95% of the partisan rhetoric. The status of Social Security as a “Ponzi scheme” begins and ends with the intent of Congress.

Merriam-Webster defines ‘Ponzi scheme’ as:

an investment swindle in which some early investors are paid off with money put up by later ones in order to encourage more and bigger risks.

For more information on Ponzi scheme, see Wikipedia [2]. It is true that the money you’re depositing into your SSI account goes into the Social Security Trust Fund. It’s true that the money credited to “your account” goes not into the purchasing of equities to build a nest egg for your own eventual retirement, but to pay off obligations to the current generation of retirees. Just like most private pension funds, Social Security obligations pose a long and growing debt “tail” of outgo which is micro-managed by Congress in periodic fits of oversight.

According to OMB, the Office of Management and Budget as quoted in Wikipedia [3]:

These [Trust Fund] balances are available to finance future benefit payments and other Trust Fund expenditures – but only in a bookkeeping sense…. They do not consist of real economic assets that can be drawn down in the future to fund benefits. Instead, they are claims on the Treasury that, when redeemed, will have to be financed by raising taxes, borrowing from the public, or reducing benefits or other expenditures. The existence of large Trust Fund balances, therefore, does not, by itself, have any impact on the Government’s ability to pay benefits. (from FY 2000 Budget, Analytical Perspectives, p. 337)

The Wiki article quoted Dr. Alan Greenspan as saying: “The crucial question: Are they ultimate claims on real resources? And the answer is yes.”

The devil’s in the details. All the worrisome arguments about how those dollar bill notes paid to you out of the fund come from the current cycle of depositors, and are not “your” dollar bills, could equally well be applied to any checking or savings bank account you own. This out-of-context argument makes no sense. The thing to remember is that it’s YOUR account, and the source of the physical greenbacks is an irrelevant distraction. The obligation to make good on your account is indeed YOUR asset, and morally it should certainly not be subject to the discretion of Congress, any more than your bank can legally decide whether your savings withdrawals coincide with the bank’s current priorities.

It’s a well know fact that the Baby Boomers are putting a heavy strain on the Social Security system. We’ve known that was coming for half a century. As we face a looming cash flow problem with Social Security, I think Congress and not individual Americans deserve full blame and responsibility for that.

Personally, I was trained in classical laissez-faire economics, and I’m very conversant with all the theoretical arguments why Social Security was a mistake in the first place. They’re just another political case of “that may work in practice, but it won’t hold up in theory.”  In my twenties I resented Social Security bitterly. After a lifetime paying into the fund, and a lifetime observing corporate practice in the American workplace where I worked for over forty years, I saw I’d be a fool to trust any “privatized” solution. Neither am I amused when I hear my account dismissively called an “entitlement.”

Reasonable people will conclude that Social Security is NOT a Ponzi scheme because, among other things, it is NOT a get-rich investment scheme and, for better or for worse, the “real resources” backing the fund are United States Treasury bonds. One could, if one wished, even argue that Perry was really calling into question the full faith and credit of the United States government. After all, it was his party that shook world confidence in our national will to pay our just debts and obligations in the first place.

© Alex Forbes 2011

Further Reading

[1] Washington Post, “Perry’s Ponzi scheme rhetoric” by Jonathan Bernstein
[2] Wikipedia, Ponzi scheme
[3] Wikipedia, Social Security Trust Fund

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Are Corporations ‘People’?

A most interesting question was posed today to panelists on the “Inside Washington” PBS roundtable. Pulitzer Prize-winning columnist Charles Krauthammer, that brilliant conservative whom I admire but with whom I disagree so much, didn’t bite. Columnist and editor Colby King of the Washington Post did.

First of all, this question is loaded. Krauthammer probably saw that. By ‘people’ do we mean, are corporations best viewed as aggregates of “just-plain folks”, like you and me? Or should corporations count under some kind of “one man one vote” rule, getting entitlement to contribute to political campaigns, and to lobby for tax breaks and special treatment?

Second of all, are we talking about how we define corporations, or are we really talking about a extra-constitutional rationale for expanding their enormous power?

Colby King innocently jumped on the question right away. Corporations, he offered in so many words, are comprised of investors, maybe just like you and me, or like the managers of our decimated 401K accounts. So in that sense yes, King said he could see corporations as ‘people’. The question went nowhere. Panelists quickly jumped to the next topic.

Politically, there is one aspect of corporations that’s much like any other interest group. They are and should be entitled to lobby Washington for fair representation of their interests in the scheme of things. But this kind of advocacy should be vetted for impartial relevance in ways we do not tolerate for private citizens. Washington observers have witnessed a sea change in corporate legal status in recent years. Under the Bush Administration, expanded ‘rights’ were extended to corporations, so that, perhaps, corporations might be allowed to donate anonymously to political campaigns and secret slush funds, or the Koch Brothers might be able to buy an election proposition initiative in California.

The unspoken core principle here was that corporations had heretofore been denied basic individual rights, so statutes and enforcement protocols needed to be relaxed to eliminate discrimination against ‘just plain people’ interest groups that just so happen to be incorporated under the laws of a state.

After all, if you own a corporation, presumably you do go to the polls to vote your personal position on the issues, don’t you? Don’t you think there should be some way your corporation can act as an extension your views, since you own a piece of it or actually control it?

So sorry, but you don’t get your vote counted twice just because you’re incorporated in, say, the State of Delaware. If a private citizen’s vote counts as one, should the “vote” of a Bank of America or Koch Industries count as ten million?

A corporation is not an individual. It does not have individual rights. It doesn’t get to vote. The Articles of Constitution only enumerate individual freedoms for individuals. So corporations are not people, and there is a dangerously destabilizing aspect to this trendy popular doublethink. Look at the 2008 consequences of the SEC and Treasury being asleep at the wheel on “good guys” like Bernie Madoff, Bank of America, AIG and Lehman Brothers. But if they were influenced by the Wall Street “old boys network” (from whom they draw so many into their ranks), nobody can prove it: not above suspicion, not accountable, never free of the taint of conflict of interest.

Individual Americans have many diverging views about religious takes on prayer in schools, abortion, gay rights, divorce or evolution, and we are all free to express our opinions, and to vote on them to the extent not pre-empted by statutory and constitutional limitations. But Congress is not free to count the “votes” of our congregations, synagogues and mosques. Yet the century-old corporate problem remains: Congress remains beholden to very large corporations.

Judicial common sense is of course needed here. Perhaps that’s asking a lot of our current crop of representatives. Your pastor, priest or rabbi should certainly be welcomed as an “expert witness” on a topic of debate, perhaps home schooling, subject of course to their personal experience in the area — but not as a spokesperson for, say, The Vatican. Similarly, shouldn’t a respected and honest businessperson such as Warren Buffett be allowed to address Congress on the economy or a hearing on energy? Certainly — but he should not be invited to make a large contribution to the chairperson of the committee hearing a bill under which Berkshire Hathaway would be a principle or sole beneficiary.

There are honest businesspeople, remember, and Buffett would certainly be one of them. Constraints need to be reimposed upon abuse of power in both private enterprise and Congress.

We need political separation of corporation and state just as we need separation of church and state, and for the very same reasons.

Further Reading

1. The Billionaire Koch Brothers’ War Against Obama : Jane Mayer, The New Yorker
“The Kochs have long depended on the public’s not knowing all the details about them. They have been content to operate what David Koch has called ‘the largest company that you’ve never heard of.’ But with the growing prominence of the Tea Party, and with increased awareness of the Kochs’ ties to the movement, the brothers may find it harder to deflect scrutiny.

2. The Koch brothers: all the influence money can buy : Paul Harris, Guardian
“Not just liberals but conservatives should be deeply worried by a revelatory investigation of the libertarian billionaires’ lobbying”

3. Corporate personhood : Wikipedia
“Others argue that corporations should have the protection of the U.S. Constitution, pointing out that they are organizations of people, and that these people shouldn’t be deprived of their human rights when they join with others to act collectively.”

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What Republicans and Democrats Still Need to Do

On August 2 the world watched the conclusion of Congress’s recent and embarrassing failure to address time-critical debt ceiling and budget decisions until the very last possible moment. It was very possibly the first time in recorded history that Communist China lambasted the United States in a rant almost everybody here in the United States could actually agree with.

We averted a credit default, but the solution was a draconian compromise that’s sure to please nobody. The compromise left untouched revenue strategies, our dire unemployment picture, and the need to balance the budget. If any modern American corporation conducted its management planning the way our senators and house representatives do, its Board would have long ago fired the lot of them. That situation is hardly new.

Our underperforming Congress largely falls back on a blizzard of blamestorming to excuse its failure to execute. If you’re a Republican, it’s the fault of those intransigent liberal socialists who are trying to kill off the goose that laid the golden egg. If you’re a Democrat, it’s those fascistic neoconservative plutocrats who are again trying to push the U.S. working class into virtual serfdom.
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Bin Laden

I’ve refrained from comment on the May 1 killing of Osama Bin Laden because it’s already one of the most talked-about topics in the world. In his RSS blog feed, New Yorker columnist Hendrik Hertzberg even titled a recent post “Not About Osama! Not About Obama!” His post was about spiral galaxy M51 and the speed of light.

Also, it seems self-evident that Bin Laden has been the world’s most hunted man for almost ten years. Literally “wanted dead or alive”, it was absolutely inevitable that Bin Laden would be killed or captured. Virtually the only question was when the United States would find him.

Bin Laden has had a decade to ponder how he would respond if presented with a choice of death or surrender. He might have died in a rain of bombs upon a Tora Bora type shelter, inflicted by invisible Stealth bombers in the night. He might have died by Predator missile strike, at the risk of “collateral” civilian deaths. But he died in the now-famous surgical strike by U.S. Special Forces, making him a martyr in the eyes of his jihadists. The outcome should surprise few.

BBC reports on a New York Times statement from sons of Osama Bin Laden, saying “the family wanted to know why the al-Qaeda leader had not been captured alive.”

The statement goes on to say “the US decision to bury Bin Laden’s corpse at sea had deprived the family of performing religious rites.”

This sudden family concern for sensitivity rings hollow, when Bin Laden deprived the families of nearly 3,000 innocent civilians of the opportunity to bury their dead, after Bin Laden’s attack on the World Trade Center on September 11, 2001.

The family also said “We maintain that arbitrary killing is not a solution to political problems and crime’s adjudication as justice must be seen to be done.”

I do personally believe that unilateral strikes on foreign soil, in all but the most dire national emergencies, are an extremely slippery slope. I will leave it to others to debate whether this was a dire national emergency, but I think the evidence shows it was.

While I would like to see our United States reassess this offshore strike strategy, which wins us no friends abroad, I most particularly believe that the Bin Laden family is the very last family on earth with the right to raise questions of equitable solutions to political problems and international war criminals.

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Congratulations, America

U.S.S. Constitution

U.S.S. Constitution

Yesterday we elected Barack Obama as the 43rd president of our United States of America. It was an unprecedented election in many ways. The news is flooded with stories of excitement and hope all over the world.

As President-Elect Obama said to the nation last night in his acceptance speech, the road ahead will be long. We have a lot of work to do. We have had other presidents who took office in the middle of perilous times. Perhaps those special challenges galvanized them and the nation to decisive action; they and the nation were victorious.
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White House Defends Waterboarding

(02-06) 13:37 PST WASHINGTON (AP) —

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives. President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

We think the White House is probably sincere in its position. And why not? Bush has nothing personally to fear from it. He’s obviously comfortable with the feeling of drowning, he doesn’t know anything, and the globe will be getting used to more water sports anyway.

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