DOMA: The Supreme Court Goes Too Far Yet Again

A common complaint among conservatives attends to the improper role of the judiciary in modern American political life: the activism that sees judges rushing in where politicians fear to tread.  The hard questions, the hard decisions that actual statesmen (as opposed to mere politicians) would be expected to make are shunned – too controversial, potentially too costly in the next election, a threat to the projected life-long vocation of a career politician dedicated wholly to preparation, running, and consolidation of a permanent campaign.  Better to let the Executive rule by regulations, his power suffused through the myriad apparatchiki in bureaucratic succession.

But worse yet, encourage the judges to over-reach and hand down not judgments but fiats, deciding not according to the laws of the legislature but by the lights of what they deem to be right and just.  It is not the opinion of some benevolent despots robed in black but the Constitution that must steer their decisions.  This was a favorite topic of Thomas Jefferson, who said, among his many quotes on the subject, "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions.  It is one which would place us under the despotism of an oligarchy."

Yet time has seen this republic march progressively (yes, pun intended) toward just such a situation, and a major indicator of the ability of the judiciary to create law, in the same manner as Roe vs Wade, was seen yesterday in the repeal of the Defense of Marriage Act (DOMA) as a result of the decision handed down with United States vs Windsor.

First, I am fully in favor of the traditional definition of marriage as being between one man and one woman, though not perhaps for the reasons that you would suspect – a subject for a later posting.  But here I am writing about how the Supreme Court in the opinion of Justice Kennedy has abrogated to itself an excuse to step in to express a judgment in an area that was not the purpose of the case.

Justice Antonin Scalia

But let me defer, as I often like to do on this subject, to the always erudite and compelling reasoning of Justice Scalia writing, in addition to Chief Justice Roberts, in the dissent, and a particularly scathing one at that (starting at p35).

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law.  Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former.  We have no power to decide this case.  And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.  The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America. 

The Court is eager – hungry – to tell everyone of its view of the legal question at the heart of this case.  Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives.  They gave judges, in Article III, only the "judicial Power," a power to decide not abstract questions but real, concrete "Cases" and "Controversies."  Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit.  They agree that the court below got it right: and they agreed in the court below that the court below that one got it right as well.  What, then, are we doing here? ... 

Some might conclude that this loaf could have used a while longer in the oven.  But that would be wrong; it is already overcooked.  The most expert care in preparation cannot redeem a bad recipe.  The sum of all the Court's nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a "'bare ... desire to harm'" couples in same-sex marriages. ... 

To be sure (as the majority points out), the legislation is called the Defense of Marriage Act.  But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. ... 

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here – when what has preceded that assurance is a lecture on how superior the majority's moral judgment  in favor of same-sex marriage is to the Congress's hateful moral judgment against it.  I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

The great jurist and Supreme Court Justice Oliver Wendell Holmes is credited with the original quote that "Great cases like hard cases make bad law."  But let us not stop there; he continued, "For great cases are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."  His opinion can otherwise be summed up with the story of his departure one evening from the residence of a friend, with whom he had enjoyed a delightful dinner and engaging conversation.  As his carriage pulled away from the entrance, his friend, seized by a feeling of enthusiasm perhaps fueled by the after-dinner brandy, called out to him to "Go forth and do great things!"  Holmes stopped the carriage and leaned out to reply, "No.  I go forth to follow the law."

Congress Proposes Standard Camouflage Uniforms For US Military

Two members of the House Armed Services Committee have proposed an amendment to the upcoming National Defense Authorization Act (NDAA) which would require all the services within the Defense Department to produce standardized camouflage field uniforms by 2018.  Representatives Bill Enyart and Tammy Duckworth (both D-Illinois) introduced the measure as an attempt to cut defense spending, particularly in light of the new RIF (Reduction In Force) and their hope to cut back slightly on the hemorrhage of some 100,000 Soldiers and Marines (and several thousand from the Air Force and Navy) as part of the Sequester.  Both Enyart and Duckworth are veterans, with Enyart rising through alternate time in the Air Force, Air Force Reserve, and Illinois Air National Guard to become the Illinois Adjutant Major General, and Duckworth is a former Army helicopter pilot who lost both legs in action.

Enyart is quoted as saying, "Congress needs to exercise its oversight to make sure we don't do silly things."  Left unexplained is how Congress itself is going to correct the myriad silly things that it does.

Army, Navy, and Marine camouflage uniforms (MSG Hayes, USA)

The US armed forces have branched out into a veritable kaleidoscope of camouflage uniforms since the beginning of the Global War on Terror or whatever the current term du jour may be.  (Or according to Obama, whether we are even at war at all.  Tolkien said, "It takes but one to make war, not two, and those who do not take up swords can still die upon them."  This is a sentiment not lost upon the tens of millions of jihadis still highly dedicated to the Cause.)

I spent some detail in one of my more popular posts about the development of American camouflage, but an update to the subject is deserved with this news, particularly in light of some of the unresearched suppositions floating about since the announcement.  Refer to that article should you have any questions about this post, as well as some information contained in a post on foreign camouflage.

The Marines started the service-specific ball rolling soon after 9/11 with their introduction of MARPAT, a pixilated woodland and desert style based on the revolutionary Canadian CADPAT, and no, the Marines did not "steal" the design as has been noted elsewhere – they cooperated quite closely with the Canadians to develop the design.  The Marines wanted a more effective camouflage and useful uniform design, which this certainly was, and didn't want to wait on the hidebound DoD bureaucracy to get around to doing it for them.  After all, there was a war on.

A Marine DI (Desert MARPAT) makes a suggestion to a Recruit (Woodland) (BI)

It has also been written that the Marines incorporated small Eagle, Globe & Anchor logos every few feet apart in order to prevent the other services from using it (a trademark stamp, as it were).  The Commandant responsible for the introduction of MARPAT, General James Jones, did allow that it benefited the Marines for the enemy to know who they were up against.  The Marine Corps developed a well honed reputation over the last couple of centuries and General Jones sought to capitilize on that to the benefit of the mission and the Marines.  But the main reason for the Marine trademark was to prevent confusion with counterfeited copies, for the uniform involved more than just the color design – it was the special inks, the high quality cloth that would accept the ink, the machines that could process both, and the infra-red shielding capability, among other concerns.  (The current Commandant, General James Amos, has stated that he wants to retain a distinct Marine field or combat uniform.)

The Army at the time was in the process of developing its own design but the project was hijacked in an attempt to have a quick design that would compete with the Marines.  While the design of the Army Combat Uniform (ACU) was an improvement (other than the poor quality of the cloth), the camouflage selected, the Universal Camouflage Pattern (UCP) has been a dismal failure.  The Army admitted as much in 2009 after a barrage of complaints from the field and added prodding by Rep John Murtha (D-Pennsylvania), who was then the chairman of the House Appropriations Committee on Defense (and who was thereby an example of the Stopped Clock principle of occasionally doing something right).  The Army had to admit that all the research it had performed on a better camouflage (resulting in a Desert Brush design) was scrapped for no apparent reason in favor of the UCP which had no field testing whatsoever.  By the next year, the Army had introduced a variant with the wonkish title of Operation Enduring Freedom Camouflage Pattern (OCP) for the continuing operations in Afghanistan.  This is produced by Crye Precision and used some of the research of the Natick Labs, and is popularly known as MultiCam.  The design was a finalist in the previous competition that was forestalled by the sudden selection of UCP.

Incandescently ineffective - UCP (NBC)

With the Army then branching off with UCP, if the other services did not want to pick up the support costs of the previous field uniform system, they needed to develop their own patterns.

The Air Force then jumped in with its Tiger-stripe variation that used the same poor choice of colors as the UCP, and called the Airman Battle Uniform (ABU).  The only real purpose was as a feel-good measure for the Air Force in its quest to have its airman feel like warriors.  (This is not simply an editorial comment; it has been the stated goal of the Air Force for several decades.  See the article referenced above.)  Wearing of the ABU in a combat zone is now forbidden in favor of a design that actually works.  Unfortunately, for the sake of uniformity and cost savings, the Air Force began wearing the Army UCP, but has now fortunately switched to MultiCam.

The Navy then added to a further fragmentation with its introduction of the Navy Working Uniform (NWU), in a blue and grey pixilated pattern that did nothing to hide anyone, except in the unfortunate case of someone falling overboard.  The real and woefully unexplained reason behind such a strange selection was that it is a work uniform – it says so right in the title – and the pattern was chosen for its ability to hide or adapt to oil and paint stains that are part of everyday shipboard life, thus extending the usefulness and wear of the uniform.  Despite the coloration, the design has been rather popular and utilitarian (other than its loose fit tends to catch on the many metal protubrances found aboard ship), but a major criticism of the NWU is that it is the latest version of a shipboard uniform that is still not flame retardant.  The Navy was committed to such a safety measure for shipboard use after the famous collision between the USS John F Kennedy and the USS Belknap in 1975.

All in the Navy

The Navy has land combatant elements though, which certainly include the SEALs and other supporting personnel.  With the Marine pattern 'copyrighted', the Navy developed its own desert and woodland variations called Area of Responsibility (AOR) 1 and 2 that are very close to the Marine MARPAT patterns, begging the question as to why the differences.  Why indeed – thus the move to come up with one system.  There has been an effort to keep this effective field camouflage system as sort of a fraternity pin aspect for the SEALs alone, with supporting sailors wearing the older DCU, and the ostensible reason being the initially low numbers of the uniforms coming on line.

Master CPO of the Navy wearing AOR 2, addressing sailors underway

Thus, considering that some units hither and yon still wear the old BDU (Woodland) and DCU (Desert) uniforms, that adds up to ten different camouflage patterns in use at one time, all in varying degrees of effectiveness (or not): one for the Army, one for the Air Force, two for the Marines, three for the Navy, and one for the actual combat area of Afghanistan.

It is not envisioned that only one pattern will prevail – it has been proven beyond the shadow of a doubt even to Army bean counters that there is no such thing as a universal design pattern, a point made, incidentally, after the 'universal' chocolate-chip desert pattern, supposedly good for all deserts, was rapidly replaced by the coffee-stain pattern at the end of the First Gulf War, but often it takes learning the same lesson several times over for a bureaucrat to understand it.  The new camouflage system will likely take into account at least the usual woodland and desert variations, as well as the rarely mentioned winter variations (they're out there, packed away in case we have to re-take the Aleutians again).  In theory, this new system would have to accommodate itself to the four basic climes of jungle (liberal: rain forest), woodland, desert, and mountain/alpine, with gear and a load-bearing system that could work across that spectrum. 

Personally, I feel that the occasional mention of urban camouflage is of very limited utility, not only as an effective camouflage but also considering the third world nature of the 'urban' environments we have seen lately.  Not even police departments, which operate almost exclusively in large urban areas, have developed a common sense of what would constitute such a pattern.

Remember that the real money issue will not be the uniforms so much as it is the associated field gear, which has to stretch across the spectrum of camouflage patterns for reasons of budget and logistics.  Switching uniforms near the tarmac for an early morning call to arms is a blink of an eye compared to trying to switch out your full kit.

Should the new plan be implemented, this will be the first time since the coffee-stain pattern prevailed that we will have a standard uniform in the field.  (I found myself among the British for a few days during the First Gulf War.  It took them a while – we were all very busy at the time – to understand that I wasn't in the Army, until they carefully read the tape above my left breast pocket.  Other examples abound in my career.)  Other than the mild embarrassment of etiquette in mistaking one's service affiliation on the battlefield, there is everything to be said for a standard uniform and pattern based on combat effectiveness as opposed to service pride or, worse yet, budget considerations.

During Viet Nam, we all had the same 'Battle Fatigues (or Utilities)', but the Marines had their Eagle, Globe & Anchor with bold USMC on the left pocket; the Army had their patches.  The style of the uniforms was the least of our worries.

On the other hand, the Marines have certainly earned the privilege of capitalizing on their professionally ruthless reputation with their mission to "locate, close with, and destroy the enemy by fire and maneuver."  Focused as we have been on psychological operations in this Global War, it behooves us to consider the effect that it has on the enemy of knowing that they are about to try to engage one of the most effective combat forces in history.  Prior to World War II, Marines had the metal insignia of the Corps affixed to their doughboy-style helmets, and during the war in the Pacific they would occasionally have some distinguishing items such as the 'leopard spot' camouflage.  During Korea, the Marines retained the puttees strapped to their boots from the previous war, another item that made them stand out, resulting in the Chinese nom de guerre of 'yellow legs'.  (Aside: during my career I also served briefly with the Turks, who in the Korean War had the Turkish Brigade alongside 7th Marines during the devastating and Anabasis-like Battle of Chosin Reservoir.  I heard from my Marine training and the camaraderie of the Turkish Naval Infantry of how the Turks would do us the unbidden favor of patrolling our lines at night searching for Chinese infiltrators, approaching our positions from the rear armed with knives.  Marines in fighting holes were occasionally startled to feel a hand around their collar searching for the American-unique dog tag chain, or a hand brushing across their ankle seeking the puttees.)  Despite standardization then, it is still a benefit in some circumstances to have a distinguishing characteristic, and the Enyart-Duckworth bill allows for exceptions for special operations, though here we would be hung up on that definition as it applies to the Marine Corps.

Cost savings could easily be in the hundreds of millions, if not billions, of dollars over time, except for the costs of switching over to an entirely new system throughout the entire DoD and the associated cost of disposing – somehow – of such a tremendous backlog of uniforms.  What is worrisome is that the same attitude that brought us the lamentable combat uniforms we now have (other than the Marines) is that it will involve the same sort of people who brought us the problem in the first place.  It would be like the old story of the Ladies Auxiliary whose annual treasurer's report had the bake sale losing $100, the quilting bee contest losing $200, and the book sale losing $250, with the conclusion that they would do the bake sale again since that was the most successful.

The Army was already in the process of choosing an official replacement for the UCP for use world-wide.  The deadline has been set for 14 June (the Army birthday) and it is not yet known how and to what extent this amendment for all the armed forces (if it passes) will affect that process.

US soldier in MultiCam (OCP)

MultiCam has proven very popular in Afghanistan with the US forces and has been adopted by the British (called Multi-Terrain Pattern or MTP), Australians, New Zealanders, Danish, Dutch, and Poles (some in slight variations) for use there, as well.  Some countries are picking it up for use by their special operations troops (e.g., Argentina, Czech Republic, Ukraine, Sweden) and others for their entire military, such as Chile and Georgia, as well as Pakistan (which could present a particular potential problem – just something to ponder, shall we say).  Russia is also using it with one of its many special units, but then the Russians seem to be using all variations of camouflage known to man simultaneously, spread throughout their wide variety of such special units.

British Royal Marine in MultiCam (MTP)

MultiCam has been successful in Afghanistan, and its design renders it useful in a wider number of areas than other types heretofore fielded, I strongly suspect, yet it is still not the universal answer.  Considering its growing popularity with a number of countries, its usefulness would be attenuated by the confusion of the same pattern spread among potential adversaries.  Thus while MultiCam would be a leading contender for a standard US field uniform, it is probably not a shoo-in or even a likely competitor.  Add to that the fact that it uses seven colors, and now it falls into the "too expensive" category that budgeteers will be screaming about.  After the substantial Army UCP embarrassment that took a Congressional inquiry to uncover, there could very well be an effort made to get it right this time, but we are still subject to all the current federal procurement and contracting nonsense that will likely include an environmentally sensitive approach, and the example of contractors naming their wives as CEOs and other Elizabeth Warren 'Fauxcahontas' set-aside angles.

While this sounds like a good idea, the Devil is always lurking in the details and it stands a chance of being as screwed up as anything that Robert McNamara could imagine.

*****
Update: While we're on the subject of field uniforms, here is a change that is certainly for the better.

D-Day Remembered

I posted this near the beginning of my web log experience, and this basic re-print is just as germane today.

Scott Johnson at Power Line commemorates this 69th anniversary of D-Day at Normandy, the largest amphibious attack in history by far, and has resurrected two great articles.  The first, ‘Too Much, Too Late’, is by Professor David Gelertner of Yale, originally published in the Wall Street Journal in 2004.  Prof Gelertner takes on the phrase ‘the greatest generation’ by the sanctimonious pandering of the “cultural establishment ... especially intense among members of the 1960s generation who once chose to treat all present and former veterans like dirt.”  He continues by saying that if we cared about the topic of World War II, our children should be taught at least four topics:

The major battles of the war – When I was a child in the 1960s, names like Corregidor and Iwo Jima were still sacred, and pronounced everywhere with respect. ... Today the Battle of Midway has become niche-market nostalgia material, and most children (and many adults) have never heard of it.  Thus we honor "the greatest generation."

The bestiality of the Japanese – If we forget this we dishonor the thousands who were tortured and murdered, and put ourselves in danger of believing the soul-corroding lie that all cultures are equally bad or good.  Some Americans nowadays seem to think America's behavior during the war was worse than Japan's – we did intern many loyal Americans of Japanese descent.  That was unforgivable – and unspeakably trivial compared to Japan's unique achievement, mass murder one atrocity at a time. ... In the Japanese-occupied Philippines alone, at least 131,028 civilians and Allied prisoners of war were murdered.  The Japanese committed crimes against Allied POWs and Asians that would be hard still, today, for a respectable newspaper even to describe....

The attitude of American intellectuals – such as “Our entry into the war, under the slogan of 'Stop Hitler!' would actually result in the immediate introduction of totalitarianism over here. ... The American masses can best help [the German people] by fighting at home to keep their own liberties." ... Why rake up these Profiles in Disgrace?  Because in the Iraq War era they have a painfully familiar ring.

The veterans’ neglected voice – World War II produced an extraordinary literature of first-person soldier narratives – most of them out of print or unknown. ... The Library of America includes two volumes on "Reporting World War II," but where are the soldiers' memoirs versus the reporters'?

Next is ‘First Wave at Omaha Beach’ by S L A Marshall, one of the best-known (and official) historians of World War II and Korea, published in The Atlantic in November 1960.  He begins by explaining how “the passing of the years and the retelling of the story have softened the horror of Omaha Beach on D Day.”  This has occurred, in his opinion, by the fact that the initial reports from which the standard account had been built were based on the immediate statements of the survivors.  But Marshall returned to the enormous amount of detail accumulated during the field research afterward in order to make some sort of sense of the overall magnitude of the assault (though he modestly neglects to mention that he was in charge of that research and that it began with the landing of his team while the battle was still being fought).

He draws you into the story by building on the fact that Omaha Beach (one of five assault beaches, in addition to the paratroop landing zones inland) covered a two-division front landing (enormous, to the uninitiated) but only six rifle companies were relatively effective as units during the initial assault, since the others (some three times that number) had been "shattered and foundered before they could start to fight."  He goes on to explain, from his faded notes, what can best be discerned about the fate of the first wave of the assault comprising Able and Baker Companies, 116th Infantry, 29th Division.

Normally, I would say ‘read the whole thing’.  Rather, I implore you to read it all, and I wish that if any one article on the topic could be thrust upon our atrophied and effete public education system, it should be this.  Trying to excerpt some lines or paragraphs to give one the gist of the  assault would be woefully inadequate.

These articles should not be lost, and my thanks go to Scott Johnson for providing them.

W H Auden’s ‘Epitaph for an Unknown Soldier’ sums it all up succinctly:

To save your world you asked this man to die:
Would this man, could he see you now, ask “Why?”

The Onion Tackles Obama Press Coverage, 'Killing Spree'

The Onion has been a satirical 'news' service since about the late 1980s, and in the true sense of satire it has provided some truly trenchant wit and irony in examining the vice and folly of political life in America.  With the steadily mounting number and severity of scandals of the current administration, and the American public increasingly annoyed with pundits who will stare directly in the camera and challenge our intelligence and credulity, The Onion now ponders the response of the Press and the Democrats (but I repeat myself) in the hypothetical case of Obama murdering a local couple, in "Media Having Trouble Finding Right Angle On Obama's Double-Homicide", all delivered in the style of the reportage of the two Chechnyan jihadis in our midst who bombed the Boston Marathon.

(Faithful readers will know that I have a penchant for gallows humor, and this effort sates my appetite at least for the afternoon.)

I am sure that agents of the Secret Service, the FBI, and the IRS are already looking into the story with such tangy examples as: 

WASHINGTON – More than a week after President Barack Obama's cold-blooded killing of a local couple, members of the American news media admitted Tuesday that they were still trying to find the best angle for covering the gruesome crime. 

"I know there's a story in there somewhere," said Newsweek editor Jon Meacham, referring to Obama's home invasion and execution-style slaying of Jeff and Sue Finowicz on Apr. 8.  "Right now though, it's probably best to just sit back and wait for more information to come in.  After all, the only thing we know for sure is that our president senselessly murdered two unsuspecting Americans without emotion or hesitation."  Added Meacham, "It's not so cut and dried." … 

"What exactly is the news hook here?" asked Rick Kaplan, executive producer of the CBS Evening News.  "Is this an upbeat human-interest story about a 'day in the life' of a bloodthirsty president who likes to kill people?  Or is it more of an examination of how Obama's unusual upbringing in Hawaii helped to shape the way he would one day viciously butcher two helpless citizens in their own home?" … 

"There's been some debate around the office about whether we should report on this at all," Washington Post senior reporter Bill Tracy said while on assignment at a local dog show.  "It's enough of a tragedy without the press jumping in and pointing fingers or, worse, exploiting the violence." … 

The article is accompanied by a photograph of a typical press bull pen (are we still allowed to use that term?) with the caption: 

Associated Press reporters investigate any possible gym training regimens the president might have used to get into peak physical condition for the murders.

Heh.

Of course, be sure the read the whole thing, by all means.

*****
Update: This is satire, of course, but then how do you explain the actual quote in the same vein from Charles Pierce of the Boston Globe in 2004: "If she had lived, Mary Jo Kopechne would be 62 years old.  Through his tireless work as a legislator, Edward Kennedy would have brought comfort to her in her old age."