summer patriot, winter soldier

it is a small thing, i suppose, but i have figured out benjamin netanyahu's thinking on palestinian statehood, and you haven't, ... , and i think that i can prove it ...

….  and, if any of you have published similar conclusions before me, i humbly apologize, but, applaud you for the clarity of your thinking.--

it occurred to me that benjamin netanyahu and i think very much alike, the ripening of this realization requiring only 5 months or so of gestation, to engage in my favorite process of mangling and mixing metaphors.

please allow me to explain the process.—

part of the realization begins with an article at atlasshrugs2000, “muslims to declare state in israel, ask oic-un to recognize fakestinian state,” describing benjamin netanyahu’s reaction to palestinian assertions that they may unilaterally declare themselves a nation, outside of any u.s. or u.n. sponsored “peace process” negotiation, and absent seeking israeli approval or participation in such process.  the palestinians announced that they would simply seek united nations and o.i.c. approval of their statehood, and that they would seek diplomatic recognition of the same from key foreign countries, and announced that they would do so “unilaterally,” e.g., without involving negotiation of conditions of statehood with israel.

this position prompted a very interesting response from israeli leader netanyahu, who stated when commenting on this announcement:

"there is no substitute for negotiations between israel and the palestinian authority and any unilateral path will only unravel the framework of agreements between us and will only bring unilateral steps from israel's side," netanyahu said.  http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/11/muslims-to-declare-state-in-israel-asks-oic-driven-un-to-recognize-fakestinian-state.html .

this got me to thinking, sometimes no easy task.  but, it occurred to me that an islamic/arab state located in the former west bank would not be in the better strategic interests of israel. and, that were such a state to acquire a genuine military force, or were it to allow such a force to migrate to within its borders from other arab countries, it would present a threat to israel’s existence that israel might not be able to surmount.

with those thoughts in mind, i submitted the following note to the “comments” section at pamela geller’s website, and it amuses me no end to quote my own thinking with enthusiastic approval:

friends:

think for a moment.--

"unilateral" movements from palestinians will beget "unilateral" movements from outside the peace process, or so says benjamin netanyahu.   …. .

what net&n means by all of this, is that if the palestinians declare an independent state, and if it is recognized by the oic &/or the u.n., then it means war. the immediate consequence of palestine receiving recognition from the largest international bodies in the world, and the assertion of statehood, is that the palestinians will move to expel the israeli citizens and other jews who have settled in the west bank. it seems to me that this alone would engender tactical engagement between israeli and arab/muslim forces, perhaps limited to arab paramilitary groups versus the i.d.f.

the longer and more serious consequence of palestinian "government" on the west bank (to state the concept is to utter a joke) is that other arab entities will seek to arm it w/ strategic military forces, perhaps seeking agreements for bases and the like.

one of the reasons that israel exists, paradoxically enough, is that it is so isolated in a strategic sense from ground attack in force. the syrians have to come down through limited approaches, and then have to be able to muscle the golan and sheba farms ever to mount tank and armor assault on israel. this they have never proven capable of doing. the egyptians have to come over the desert, and they have never had the ability to do that. and, the jordanians, have to marshal up on open ground and then press across the river into the west bank area.

were a military force able to use a "palestinian state" as a marshalling force for conventional armor and tank forces, staging in bases leased from "palestine," this would present a formidable strategic threat to israel, and probably would present a very legitimate threat to her destruction. just consider heavy artillery fire, let alone tanks and other armor, from the west bank directed into israel.

she would be presented with military assault the likes of which would probably be irresistible.

israel could not allow that sort of strategic risk to obtain.

she would have to simply preemptively strike an independent palestine to prevent that from happening.

and occupy.

and, here we are again.

another war. and another stalemate. and, other peace process.

this goes around in circles forever. this negotiation bullshit.

the only solution to this, is for israel to expel the arabs from israel proper, whether or not they are israeli citizens, and for israel to eject the "palestinians" from the west bank, and to assume a state of permanent hostilities between israel and her arab/islamic neighbors as the cost of existence.

there can be no peace, either with a palestine as a "unilaterally" established state, or with a palestine as a "negotiated state" the result of "peace process." either way spells out the same result, the same reaction from israel to preserve herself, and a return to this precise position, with israel policing the west bank to hold terrorism and political unrest to "acceptable levels."

/s/ john jay

…………………..

in short, what i saw in benjamin netanyahu’s mind was an endless cycle of international diplomacy “empowering” and “legitimizing” palestinian statehood only to force the israeli’s to invade and “re-occupy” “palestine” to protect against arab and islamic military adventurism in the form of repeated military forays into israel and against israeli positions.

it seemed to me, that in this statement, netanyahu was saying that the “peace process” if played out this way, by the unilateral assertion of statehood by palestine and recognized by international bodies was the functional equivalent of perpetual hostilities, and perpetual wars thrust upon israel by arab/islamic aggression.

and, it seemed to me, that in netanyahu’s mind this cycle of hostilities bore the heavy intellectual burden of inevitability, of a future doomed to debilitating warfare.  and, this, no leader, no matter how resigned to “real politik,” would want to embrace as a scenario which could not be avoided.

(this is, by the way, my view of the reality of the situation.  i believe that the price of israel’s existence is military preparedness, and a diplomatic posture that does not shun recourse to military force from time to time.  to me, this is reality.)

some days later it occurred to me, that in all probability, and in demonstrable fact, benjamin netanyahu had reached this view a long time before it occurred to me.  not surprisingly, perhaps to you, because you have thought it through to this conclusion yourself, given the total immersion of an israeli politician like netanyahu in this situation his entire life.

i took some smug satisfaction in my surmise.  because i have not seen this “insight” into netanyahu’s thinking published or written about in other places, perhaps because i don’t read enough.  nor, in spite of my gentle kidding above, have i heard from you, gentle readers, along these lines either.

and, several days later it occurred to me.

i had absolute confirmation in my understanding of netanyahu’s thought, in his own words, not more than 6 months previously, in a series of remarks given by netanyahu in a major address, and described in the washington post, no less, his support for a palestinian state premised upon arab agreement and adherence to certain very rigorous diplomatic and military conditions:  http://www.washingtonpost.com/wp-dyn/content/article/2009/06/14/AR2009061400741.html .  in an address given at bar-ilan university, tel aviv, israel on june 14, 2009 netanyahu proposed the following:

“the palestinian state would have to be demilitarized, with international guarantees that it remain so; it would have to cede control of its airspace to israel; and it could be created only if the palestinians recognize israel as the jewish homeland.”  id, at washington post.  [http://yidwithlid.blogspot.com/2009/06/full-text-of-binyamin-netanyahus-bar.html. full text of speech, courtesy sammy benoit at http://yidwithlid.blogspot.com.]

netanyahu’s conditions were described more fully by sammy benoit at yidwithlid with his usual clarity in a series of posts.  in the following post, http://yidwithlid.blogspot.com/2009/06/meaning-of-bibis-speech-take-that-obama.html, sammy excerpted a portion of netanyahu’s speech fully demonstrating that netanyahu has a firm view toward the never ending cycle of islamic/arabic aggression towards israel, as a consequence of islam never having accepted the legitimacy of israel since statehood, or the presence of jews in their homeland prior to statehood:

....In order to bring an end to the conflict, we must give an honest and forthright answer to the question: What is the root of the conflict?

In his speech to the first Zionist Conference in Basel, the founder of the Zionist movement, Theodor Herzl, said about the Jewish national home, "This idea is so big that we must speak of it only in the simplest terms." Today, I will speak about the immense challenge of peace in the simplest words possible.

Even as we look toward the horizon, we must be firmly connected to reality, to the truth. And the simple truth is that the root of the conflict was, and remains, the refusal to recognize the right of the Jewish people to a state of their own, in their historic homeland.

In 1947, when the United Nations proposed the partition plan of a Jewish state and an Arab state, the entire Arab world rejected the resolution. The Jewish community, by contrast, welcomed it by dancing and rejoicing.

The Arabs rejected any Jewish state, in any borders.

Those who think that the continued enmity toward Israel is a product of our presence in Judea, Samaria and Gaza, is confusing cause and consequence.

The attacks against us began in the 1920s, escalated into a comprehensive attack in 1948 with the declaration of Israel's independence, continued with the fedayeen attacks in the 1950s, and climaxed in 1967, on the eve of the Six Day War, in an attempt to tighten a noose around the neck of the State of Israel.

All this occurred during the 50 years before a single Israeli soldier ever set foot in Judea and Samaria . 

there are other aspects to netanyahu’s position, and perhaps on another day they warrant a fuller discussion.  but the key features of his position are that a palestinian state must recognized the right of israel to exist, and to exist as the homeland of the jews, such recognition memorialized by signed agreement; that palestine be demilitarized, and kept demilitarized by international inspection, and that israel has the right to enter and occupy palestine as necessary to keep it demilitarized; and, that israel have control of the airspace over palestine.

in short, and in absolute confirmation of my view of/insight into benjamin netanyahu’s thinking on the matter, palestine will be allowed statehood by israel when and if palestine can be rendered a nullity as a strategic threat to israel.

it is obvious that netanyahu perceives an endless cycle of conflict (as i do) and war with palestine and islamic influences using palestine as a proxy state, if palestine is given the full panoply of state powers, privileges, rights and immunities, because she will use these attributes to arm herself, or to allow her armed neighbors access to her territories, and as such she would present quite fatal prospects of the arab prospects of conquest of israel, given israel’s resultant strategic exposures.

to netanyahu’s thought processes, a palestinian state has fatal consequences to israel, as arab/islamic strategic advantage would be overwhelming, and israel’s heretofore strategic havens rendered an absolute nullity.  this, netanyahu will not allow to happen.

any “unilateral movement” toward this prospect on the part of islam using palestine as a strategic lever will trigger “unilateral reaction” by netanyahu’s israel, and that means nothing less than the military and diplomatic destruction of palestine as a state, and the beginning of another cycle of occupation of the west bank territories by israel.

netahyahu is not buying into this as an historical option.

netanyahu sees, and he has thought it through to this vision, the inevitable cycles of warfare and occupation stemming from genuine palestinian statehood.

this is where there is a divergence in the visions of john jay and benjamin netanyahu, if an obscure blogger from milton freewater, oregon may be permitted divergent thoughts from a brilliant man such as netanyahu.—netanyahu thinks the pit bull can be neutered in his aspirations, and defanged and declawed in his military capacities, … , and thereby rendered a total nullity by the imposition through negotiation and agreement of the conditions he has placed upon the “peace process.”

when i first read mr. netanyahu’s speech in june of this year, i thought that he was just blowing smoke up islam’s ass, to delay negotiation, because i believed that netanyahu had set out conditions to which no arab or islamic leader would ever agree, or could ever agree, without exposing himself to the rage of the arab public.  i thought that he was, moreover, simply rebuffing b. insane obama’s earlier remarks about the peace process made in cairo, egypt: sort of tweaking the idiot's ear, as it were.

but i see now that netanyahu was ever so seriously proposing a solution that he believes is the only solution that will achieve peace.  in netanyahu’s vision of permanent conflict arising from a the creation of a palestinian state fully fledged with the rights, powers and privileges of a genuine state, the only prospect is endless warfare, as islamic aggression after islamic aggression is beaten back and subdued; as occupation after occupation of palestine subsequent to war gives way to negotiated withdrawal of israeli troops under international pressure; and as islamic buildup of military force after islamic build up of military force gives way and leads inevitably to renewed war.

but, netanyahu sees in the institution of what we might call “limited statehood” for palestine, conferring upon it the right of self governance but absent military capacity, a solution that will at least assure a “limited peace,” in which palestinian violence is limited to an acceptable level of internecine terrorism and violence directed towards israel.

in short, netanyahu envisions the status quo assured by “limited statehood” for palestine.

i am not so sanguine about the nature of this peace, nor do i share netanyahu’s vision that “limited peace” is derivative of “limited” palestinian statehood.  i do not see the situation as it exists presenting sustainable state hood and religious & ethical integrity for jews and israelis.  it seems to me that benjamin netanyahu’s position that the israel “settlements” in the west bank would be maintained with a “limited” palestinian state, and that jerusalem would be an undivided capital, simply cannot obtain as any condition of peace, and that such issues will always remain a tension, and source of conflict and warfare between islamic/arab populations and the jews of israel.

no "vision" of “peace” can gloss over these fundamental divides.

as i said in correspondence to sammy benoit then, i believe now:

The Meaning Of Bibi's Speech--Take THAT...‏

From:	(jjatty@msn.com)
Sent:	sun 6/14/09 8:23 PM
To:	(yidwithlid)

sammy, ____________:
 
i think bibi is safe for a little bit.  not very likely the pali's will disarm, not very likely hamas will revise its charter, and not very likely p.l.a. "pres." abbas will ever recognize the right of the jewish state to even exist.
 
i liked the part of his speech where he said the pali's [e.g., palestinian "refugees"] are an arab problem and call for an arab solution, not a solution to be imposed upon israel or a responsibility to be borne by israel.
 
a good speech.
 
now, we have to turn to the reality of the thing.  unless israel gets a grip on this arab demographic business, we will not be reading in coming years of israel's military conquest, but of her inundation under successive decades of arab birthrate and fecundity.  time for israel to consider the "ejectment" question openly and honestly.
 
but, today was a very good start, a very good start indeed.
 
john jay

in my view, no “peace process” will ever “impose” peace upon the middle east, so long as israel exists.  israel’s continued existence is a continued affront to islam, and arabs will always seek the military destruction of israel, and the banishment & annihilation of her citizens from middle east, or, their enforced dhimmitude if they are not killed and do not leave.  but, the existence of israel is forever anathema to islam and to arabs.

ask mr. abbas, and ask the palestinian authority, and every other arab/islamic person who draws breath.

no, the cost of israeli existence is permanent military superiority, and preparedness to do battle to defend israel at the drop of the hat, any day of the week, at any hour.

ultimately, israel faces subjugation and destruction, or coming up face to face with the real issue defining the entire question of whether israel will flourish or perish, as the rose upon the frosts of late autumn.

will israel commit to the ejectment of arabs and islam from israel proper, and the west bank & gaza.

meir kahane was right.  and, wouldn’t you know it, meir kahane remains such a force in the intellectual examination of this extremely complicated question, which remains an unsolvable quandary so long as his long reaching vision is not applied to it, that the united states emissary to the middle east, u.s. senator george mitchell has asked that no israeli observance of the anniversary of his death be performed in israel.

this alone is eloquent and telling testimony to the force of kahane’s argument, and confirmation of the fact that the arab & islamic presence in israel proper and the west bank remains the single most salient issue, the underlying reality, of the existence of israeli statehood.

meir kahane was right.  and, no amount of denial can still his vision or his voice.

benjamin netanyahu has not come this far in his thinking that he and I think congruently on every point.  but, here is the significance of how far he has come.  he thinks like me, in all but the last intellectual and psychological steps, as he has publically confirmed his thinking. 

he has only one very small step to take, to join company with kahane and jay, and to ensure the survival of israel.  and, how far away is netanyahu from taking this step.  in my view, there will be no intellectual or emotional impediment between netanyahu and my view in these matters, nothing preventing him from taking the last step to supporting the notion of ejectment of the arabs, upon the realization in benjamin netanyahu’s mind and intellect that “limited peace” through either the doctrine or the applied practice of “limited” palestinian statehood work towards israel’s perpetual existence and security.

in other words, benjamin netanyahu is a very, very short journey from the vision of meir kahane.  he knows statehood for the palestinians, in any conventional sense means perpetual war.  he has seized upon this notion of “limited statehood” as offering some chance toward peace.  if and when benjamin netanyahu comes to the realization that it is all chimera, and ephemeral gauze that cannot obtain, then his fine & analytical mind will have no place to go in its quest for a security and peace for the israeli state.

he will then think entirely like me.  and, in this instance, he will have the company of a great man, meir kahane, to guide him.

john jay @ 11.17.2009

rather than risk death, she fled ... evidence, apostasy & the rifqa bary case ... expert testimony re: apostasy

rather than risk death, rifqa bary quit her muslim father’s home when he threatened her with death for abandoning her muslim upbringing and faith for a new found faith in christianity.  she fled to the only sanctuary she knew to the home of christian ministers in florida, to avoid the vengeance of her father: she knew his threats were not empty, as she knew the penalty exacted upon apostates to the muslim faith, and she knew it quite likely were she to suffer such a fate, it would be inflicted upon her by family and friends.  she knew she faced death at the the hands that had cared for her.

that apostasy and honor killings are a fact of life, and death, in islam stands as no mystery to those who read the pages at http://atlasshrugs2000.typepad.com.  pamela geller has documented the established fact of such killings in muslim lands, and the disturbing burgeoning of such killings in north america as muslim with the growth of muslim populations. 

it is increasingly clear that islam demands death for apostasy, and it is increasingly clear that muslims who come to north america neither shirk their obligations under the koran to kill apostate family members, nor do they abandon traditions long sanctioned under muslim sharia law to kill those of their own families who bring shame upon them as muslims because of their apostasy, and longings to live as do the americans and canadians amongst who they live.

rifqa bary knew this as a child raised in islam.

you and i know this from reading atlasshrugs and jihadwatch, and a myriad of other blogs and social commentators who have covered the many well known and notorious cases of honor killings and apostasy killings within our own borders, and the muslim world over.

it may be more than mystifying to some of you, therefore, why the law and the courts seem so ignorant of these facts, and seem so stupefyingly bent on remaining ignorant of them, even as they decide cases entirely dependent upon an intelligent understanding and comprehension of such matters in order to do justice.

are they stupid?

do they not see?  why will the courts not deal with the subject of apostasy and honor killings in cases involving muslims?  especially, as here, when the welfare of a child, rifqa bary, is at stake in a case in which her father has threatened her death because she has left islam for christianity.

as a retired lawyer, these issues are as troubling and pressing to me as they are to you.  perhaps even more so.

i was shaken in my faith that ohio would look to protect the welfare of rifqa bary when eric fenner, director of franklin county child services told a newspaper, the columbus, ohio dispatch that he was unaware of any reason why she should not be returned to the home of the father who threatened her with death, before any adjudication on the merits of the matter had ever taken place.  for one, it was shocking to me that a social worker would deign to usurp the function of a court in “deciding” such a matter, most assuredly not his job, and it was even more shocking that the statement seemed to have been made in utter ignorance of the established fact of apostasy and honor killings.

my faith has not been restored in either the competency or good faith of the franklin county courts, nor the lawyers who work in dependency cases in those courts, by the fact that the proceedings have proceeded in secrecy and without any indication that the court system in ohio is in the slightest degree considering the facts of apostasy and honor killings in satisfying their legal and ethical charge to provide for rifqa bary’s safety.

she is a child, she is entirely dependent upon the courts to protect her, and the courts seem bent on turning their backs on the fundamental issues which impact her safety and threaten her life.

why?  why is this so?

well, to my mind, as a lawyer, it would seem that the courts in franklin county ohio wish neither to engage their curiosity and expand their knowledge of certain well demonstrated sociological facts, nor do they seem cognizant of advancing notions and evidence rules & doctrines in the law. 

(in short, they appear intellectually and institutionally lazy.)

let’s examine at first, a doctrine under the law which might suggest a defense to this lackadaisical approach.  it comes under the heading of, "... we have done it this way for so long, why switch ...", if truth be told, but, let us look at the matter with a certain charity towards the slothful.—

in rifqa’s case, the matter before the court that most directly impacts whether she goes back to her home is case number 09JU12299 in the franklin county court, and it is a petition that alleges she is a dependent child, e.g., a child for whom her parents cannot or will not provide her requisite care and supervision either because of neglect or abuse or just simple inability.  (this case was set for hearing on november 16, 2009 but it has been stricken under rather mysterious circumstances, and no substitute date made available to the public, presumably under gag order of the magistrate conducting the case.  thus, the court continues to handle this matter under "cover of darkness," something totally foreign to my practice in juvenile courts.)

the sole legal issue before the court is dependency.  rifqa has stated her father threatened her with death, and the father confirms the incident during which this threat purportedly took place occurred, but he has denied the threat, even while confirming other aspects of the incident.

in my experience in juvenile court dependency cases, this should legally confirm that rifqa is a dependent child.

and, just here, we have the first safe haven for the lazy and the incompetent.—

it is an evidence doctrine so steeped in tradition as to be hoary which says that courts will not examine matters at trial which are collateral to the limited legal issues before them, e.g., if a matter is outside the principal matter is issue, or is extraneous to it, it need not be considered in deciding the issue before the court.  see black’s law dictionary, revised fourth edition, 1968, west publishing, st. paul, minn., page 327.

put simply, in the trial court’s mind, and in the attorney’s minds who work in behalf of rifqa’s interests, it is not really necessary to consider the issue of apostasy in order to establish the fact and legal status of the dependency, because the fact of apostasy killings is not necessary to establish or prove the bare assertion of a threat upon her life by her dad.

and, that is true enough.

but, here is where the laziness comes in, here is where the desire to make things easy and treat it as run of the mill places rifqa bary’s life in danger.

and, an example illustrates the propositions i am going to make.—

consider a situation in which parents who belong to a christian cult that conducts its worship and services accompanied by fully functional & venomous rattlesnakes, who seek to compel an adolescent daughter to take part in such services, and who threatened the daughter with death if she will not.  consider that if the daughter is in that home it is likely she will be compelled to participate in such services.

a court could simply declare her dependent, and then order her to return to the home while the case was pending, were it not for that for an awareness of that circumstance.  no competent judge would order that if knowing of that danger, no competent prosecutor would request that such a return to a home being aware of that danger, no competent attorney representing the child would agree to that being aware of such a circumstance, because the very context of the threat and the risk of harm posed by participating in such services would demand that the child be in all likelihood be placed in protective custodial care, and that visitation be carefully supervised if had at all, and that the risk of such activities be carefully scrutinized before any such child were allowed back in the home.

no doctrine of separation of church and state would stop a competent jurist from such a thorough consideration of such facts, and, based upon such consideration, from fashioning remedies to protect the child.

yet, if the attorneys involved do not raise the issue of apostasy to the court, or if the court is unwilling to considerapostasy or honor killings because it considers such matters as collateral to the issue of dependency before the court, then the disaster of rifqa bary being returned to her home is precisely the situation risked in an ohio court that is not doing its job. 

and, so the consideration of apostasy and honor killings should be central in rifqa bary’s case, with an emphasis upon the factually demonstrable situation obtaining with islamic apostasy  & honor killings all over the world.  and, the recurrent muslim honor killings that take place in north america with an alarming and increasing frequency should be of special relevance in the examination of the court.

the fact is, such killings take place all the time.

and, the fact is, that the ohio court’s and authorities have given absolutely no indication, not one shred, that they intend to consider the facts of koran text which posits the apostasy doctrine, or the realities of murders which follow this religious doctrine, or the interplay all of this has with muslim honor killings in the family setting, ... , well, it is extremely disturbing to me, as someone who has advocated for children in the dependency setting.

the only thing the ohio courts have indicated is that they intend to do their work shrouded in secrecy and hidden from public view.

the sad fact of the matter is, this position of the part of the ohio authorities is not only an indication of laziness and indifference on the part of all involved, but also of a very shoddy understanding of the current status of evidence law in the federal courts, and most assuredly in the state courts because of the overwhelming influence the federal rules upon evidence law.

the fact is, the ohio court may avail itself of readily available expert witness testimony by which it may educate itself of the religious basis behind apostasy and honor killings in islam.  scholars and experts are available who may testify to the textual basis for these practices in the koran & haddiths, and may also testify that leading islamic clerics who speak with the full authority of sharia law upon observant muslims endorse and authorize such killings, and that these clerics also teach that muslims are obligated to kill the apostates among them.  experts are also available who can testify to the frequency of such killings, and there are persons themselves apostate or living under threat of fatwa for their beliefs who can testify to the impact upon their own lives, and the danger that they have been place under, because of these matters.

a lazy judge or lawyer might not regard these matters as capable of consideration by a court under the “collateral issue” doctrine, or as prohibited by a case called frye which had restricted expert testimony to matters “generally accepted” as established in relevant scientific communities.  such a lazy judge might foreclose such expert testimony on the finding that such matters are not "generally accepted" in the relevant academic communities, as such conclusions as i posit above may be matters yet in controversy. judges reluctant to open up collateral examinations might have taken recourse to frye at one time in refusing to consider testimony about apostasy at one time, but they have no recourse to such intellectual laziness at this point, because the rule of law on expert testimony and evidence has changed.  and, lawyers who will not press the issue of apostasy to a judge in order to protect the interests of children such as rifqa bary, are intellectually derelict in their failure to aggressively press courts to consider the issues of apostasy and honor killings, imho.

the law on expert testimony has changed under the federal rules.

daubert v. merrell dow pharmaceuticals, inc., 509 u.s. 579 (1993) rules simply that federal rule of civil evidence no. 70 supplants the “general acceptance” by a scientific community as the basis for the court’s consideration of expert testimony, the rule first announced in frye v. united states, 293 f. 1013, 1014 (d.c. cir. 1923).

i am not going to bore you with a long discussion of the daubert case, but this summary of the case as found in its “headnotes” section indicates that the united states supreme court views the admission of expert testimony on such issues as apostasy and honor killings as desirable, and that wholesale exclusion and consideration of novel expert opinion is not generally to be engaged in by trial courts.  the supreme court takes the view, that if there is some controversy or contention in such matters, that a more proper remedy to assure that unfounded or speculative opinion does not wrongfully sway a jury lies in careful cross examination by adverse parties, and presentation of other expert testimony.

in short, the trier of fact is to decide in such situations where relevant evidence is considered.

this take time and effort.  but it is time and effort to be expended towards the consideration of relevant evidence favored and directed by the united states supreme court, regardless of the views of a franklin county ohio juvenile law court magistrate towards an efficient administration of a “county railroad.”  witness the head notes from daubert:

1.)federal rule 702 governs the admissibility of expert testimony in trials;

2.)foundational elements deal with the reliability of the testimony and its relevance, (and, most assuredly, its materiality);

3.)faced with a proffer of expert testimony, the trial judge must make an initial assessment under federal rule 104(a) whether the  testimony’s underlying reasoning or methodology is scientifically valid and can be applied to the facts at issue.  standards enumerated.  “the inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.

4.)cross examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising “general acceptance” standard, is the appropriate means by which evidence  based on valid principles may be challenged.  That even limited screening by the trial judge, on occasion, will prevent the jury from hearing of authentic scientific breakthroughs is simply a consequence of the fact that the rules are not designed to seek cosmic understanding but, rather, to resolve legal disputes.  pp. 15-17.

it should be noted that such consideration of “history” and “sociology” is not novel.

in brown v. board of education, the courts which decided that case considered voluminous materials which supported the very simple assertion that separate but equal school systems resulted in disparate educations received by whites and blacks in the considered school systems.  it was proof by sociology, and it is and was just that simple, and just that complicated, yet it was left to resolution by the trier of fact.

when history and context can be shown to be relevant to the decision of the matters at hand, history and context are no longer collateral.

a “case note” in the yale law journal, published 05.03.2001, p. 1531 entitled “past imperfect”  by wendie ellen schneider, and considering the case of irving v. penguin books ltd., no. 1996-i-1113, 2000 wl 362478 (q.b. april 11), appeal denied (dec. 18, 2000) illustrates rather precisely the use of expert witnesses in a case which seemed to open an almost limitless examination of a-"classic"-dreaded-by-trial-judges “collateral issue.”  in that case, david irving who in his later years became a “holocaust denier,” (sort of analogous to a “truther”) sued penguin books for defamation over a book written by deborah lipstadt making various assertions about the shoddy nature of his historical methodology, and saying that he denied the occurrence of the holocaust in the face of scholarly research and anecdotal evidence from those who had witnessed and survived it: in short, the history of the holocaust seemed at issue.

under english liable law, the defendants in the suit, penguin books and lipstadt effectively faced a burden of establishing that the scholarly opinion in support of the occurrence of the holocaust had been arrived at using rigorous and fair intellectual and factual methodology, supporting an assertion that irvings’ denial of the holocaust was not based in a good faith historical methodology.

as the article notes, the papers of the time touted the trial as “history on trial.”

and, most assuredly, the court did not want to “retry” the history of wwii or of the holocaust.

the court in irving did not focus on the ultimate truth of the holocaust, but rather on the objective good faith and methodologies used by historians in examining the historical issues at hand, and whether the conclusions held by the general academic community were arrived at using solid methodology and good faith standards of intellectual examination.  based upon the testimony presented by penguin books and lipstadt in support of the general academic examination of the period, the court concluded that irving’s assertions that the holocaust had not occurred were not, and that therefore lipstadt and penguin had not libeled him by accusing him of being an apologist and denier of the holocaust.

at footnote 30 of the yale law review article, the author of the note details any number of cases in which such an examination of historical truth has taken place, and which cases would serve to guide the lawyers and the judge in the rifqa bary case as to a proper and efficient examination of the issues presented by the facts of apostasy and honor killings as they impact rifqa bary's life, given her conversion to christianity.

it is evident given the discussion of daubert and irving that evidence presented via expert witnesses in a courtroom in ohio relevant to the doctrinal foundations for apostasy and honor killings in the koran; relevant to their historical and contemporary occurrence in muslim countries and now in north america; relevant to the actual experience of muslims deemed apostate under edict declaring them apostate and subject to death by islam clerics; ... , would be therefore, relevant to the legitimate fear and concern that rifqa bary had for her own life, and would stand as material, relevant and necessary evidence for the franklin county ohio court to admit and consider in fashioning its decision in rifqa bary’s case.

it is also a fair proposition that any failure of the ohio courts to broaden their inquiry and to examine such issues is derelict, and turns the back of the court upon its ethical and legal obligation to consider all evidence material and relevant to the consideration of rifqa bary’s personal safety.

her life is entrusted to the court.

the ohio court has yet to demonstrate in public and for the record any indication that it takes such responsibility as fully and seriously as it ought to, and has absolutely failed to indicate that it is willing to examine the issues of apostasy and honor killings as it should under daubert. 

it really is as simple that.

daubert holds that the ohio court should consider expert testimony demonstrated as reliable and relevant on these topics, unless some basis reasonably excluding it can be enunciated by the court.  the burden is not upon the proponents of such evidence who would proffer it to the court, as under daubert it is favored, … , rather, the burden lies upon the court and adverse parties to demonstrate why as material and relevant evidence with regard to rifqa’s well being and safety to clearly demonstrate and enunciate why it should not be considered.

failing such a demonstration by the court, in the consideration of issues relevant to rifqa bary's protection raised by her apostasy and the culture of apostasy & honor killings in islam, then the court should be deemed derelict in the performance of the duty it is obligated to perform on behalf of rifqa bary.

and, to the extent that counsel working in rifqa’s behalf do not advance efforts to get such matters considered, they have not performed their ethical obligations toward her.

it my mind, it is just that simple.  counsel owe her a zealous and hard working effort, and the court owes her a fair and full considerations of all the relevant issues before it, not a decision based upon political or administrative expediency.

john jay @  11.15.2009

http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2009/11/research-notes-rather-than-risk-death-.html .  see this link as well, for citations to specific holding in the daubert case and passages in the yale law review article, in support of the matters asserted above.

research notes: rather than risk death ....

yale law journal, may 3, 2001 5/3/01

link:

http://www.yalelawjournal.org/pdf/110-8/schneider.pdf

google hit “high court judge charles gray’s opinion + holoquast  denial trial”  link to hit:  http://www.google.com/search?hl=en&rlz=1T4SUNA_enUS259US259&ei=Sf_9SoKtMJPgsQOVhPGHCw&sa=X&oi=spell&resnum=0&ct=result&cd=1&ved=0CAYQBSgA&q=high+court+judge+charles+gray%27s+opinion+%2B+text+%2B+holocaust+denial+trial&spell=1

citation to legal opinion of gray:

irving v. penguin books, ltd., no. 1996-I-1113, 2000 wl 362478 (q.b. apr. 11), appeal denied (dec. 18, 2000).

law review article footnote 39, discusses duabert v. merrell dow pharmaceuticals, inc., 509 u.s. 579 (1993) as supplanting frye v. united state, 293 f. 1013, 1014 (d.c. cir. 1923) for standards dealing with admission of expert witnesses.

 

text from yale law review

 

This “ objective historian” standard may in fact be more useful in

America than in its country of origin. The “ turn to history” in American

jurisprudence29 has created an increase in the number of prominent cases

employing historical arguments.30 This Case Note focuses on the testimony

22. See, for example, Irving, 2000 WL 362478, ¶¶ 13.13, 5.34-5.47, in which Gray faulted

Irving for uncritical reliance on crime statistics taken from the work of Kurt Daleuge, an

enthusiastic member of the Nazi party.

23. See, for example, id. ¶¶ 13.17, 5.40-5.72, in which Gray reprimanded Irving for being

“ unduly uncritical” of witness statements by Hitler’s adjutants supporting Irving’s account,

statements which were contradicted by contemporaneous documentary evidence, including

Goebbels’s diary and police telegrams.

24. See, for example, id. ¶¶ 13.24-13.25, 5.111-5.122, in which Gray criticized Irving’s

selective treatment of the evidence regarding the shooting of Jews in Riga. Irving relied on an

order prohibiting future mass shootings to argue that the Germans had called a halt to the

shootings, while ignoring evidence from the same source that the order was limited to shootings

“ on that scale” and called for increased discretion in shootings, implying that the shootings were

to continue.

25. See, for example, id. ¶¶ 13.22, 5.90-5.110, in which Gray found that Irving misled readers

by presenting Himmler’s notes as incontrovertible evidence supporting Irving’s proposition that

Hitler had prohibited the general liquidation of Jews, and that this amounted to speculation, rather

than recitation of established facts.

26. Id. ¶ 13.31 (“ Irving has seriously misrepresented Hitler’s views on the Jewish question.

He has done so in some instances by misinterpreting and mistranslating documents and in other

instances by omitting documents or parts of them.” ).

27. See, for example, id. ¶¶ 13.117-13.125, 11.6-11.48, in which Gray condemned Irving for

relying on one document to support his claims for an inflated casualty figure for the Allied

bombing of Dresden, and for ignoring “ powerful reasons for doubting [its] genuineness,”

including accusations of forgery and internal evidence of alterations.

28. See, for example, id. ¶¶ 13.42-13.45, 5.199-5.214, in which Gray faulted Irving for failing

to consider Hitler’s motives when using accounts of his meetings with Antonescu and Horthy

during which Hitler was apparently motivated by a desire to control the fates of Hungarian and

Romanian Jews.

29. LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 132 (1996).

30. One manifestation of this shift has been the historians’ briefs, or historical segments of

briefs, directed at the Supreme Court. See, e.g., Brief of Amici Curiae Self-Advocates Becoming

Empowered at 3-10, Bd. of Trs. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001) (No. 99-

1240); Brief of 281 American Historians as Amici Curiae Supporting Appellees, Webster v.

Reprod. Health Serv., 492 U.S. 490 (1989) (No. 88-605). For the debate regarding the historians’

brief in Webster, see Estelle B. Freedman, Historical Interpretation and Legal Advocacy, PUB.

HISTORIAN, Summer 1990, at 27; Michael Grossberg, The Webster Brief: History as Advocacy, or

Would You Sign It? PUB. HISTORIAN, Summer 1990, at 45; Jane E. Larson & Clyde Spillenger,

SCHNEIDERFINAL.DOC MAY 3, 2001 5/3/01 6:54 PM

1536 The Yale Law Journal [Vol. 110: 1531

of historians serving as expert witnesses at the trial level. Historians have

testified in a range of cases: Indian rights;31 land claims;32 gender

discrimination;33 deportation of alleged Holocaust participants;34 voting

rights;35 and gay rights,36 among others. Yet, historians called upon to

testify claim that the standards applied by courts in assessing their

testimony are contradictory or irrational.37

Historians are not alone among social scientists and other non-scientific

experts in confronting an absence of coherent standards.38 The judicial

guidelines for evaluation of expert testimony have undergone substantial

redefinition over the past decade. Beginning with Daubert v. Merrell Dow

Pharmaceuticals, Inc.39 in 1993, the Court abandoned the longstanding

Frye test, which looked to “ general acceptance in the particular field.” 40

Instead, the Court proposed a list of factors for the trial court to consider

including: whether a technique or theory can be (or has been) tested;41

whether it has been subject to peer review and publication;42 its known or

SCHNEIDERFINAL.DOC MAY 3, 2001 5/3/01 6:54 PM

2001] Case Note 1537

potential rate of error when applied;43 existence and maintenance of

standards and controls;44 and general acceptance.45 These factors, however,

were not presented as a “ definitive checklist” but rather as “ observations”

for the trial court to consider.46 The inquiry, the Court noted, should be a

“ flexible one.” 47 Moreover, it should focus on methodology rather than

conclusions.48

The Court’s decision in Daubert, as commentators quickly pointed out,

left unresolved the question of whether the new test for expert testimony

encompassed specialized knowledge or social science evidence as well

as scientific evidence.49 In Kumho, the Court expanded trial courts’

“ gatekeeping” function to all expert testimony,50 but again emphasized the

flexibility of the inquiry, concluding “we can neither rule out, nor rule in,

for all cases and for all time the applicability of the factors mentioned in

Daubert.” 51 Most recently, the December 2000 amendment of Federal Rule

of Evidence 702 codified the focus on methodology present in both Daubert and Kumho.52

 

 

30. One manifestation of this shift has been the historians’ briefs, or historical segments of

briefs, directed at the Supreme Court. See, e.g., Brief of Amici Curiae Self-Advocates Becoming

Empowered at 3-10, Bd. of Trs. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001) (No. 99-

1240); Brief of 281 American Historians as Amici Curiae Supporting Appellees, Webster v.

Reprod. Health Serv., 492 U.S. 490 (1989) (No. 88-605). For the debate regarding the historians’

brief in Webster, see Estelle B. Freedman, Historical Interpretation and Legal Advocacy, PUB.

HISTORIAN, Summer 1990, at 27; Michael Grossberg, The Webster Brief: History as Advocacy, or

Would You Sign It? PUB. HISTORIAN, Summer 1990, at 45; Jane E. Larson & Clyde Spillenger,

 

“That’s Not History,” PUB. HISTORIAN, Summer 1990, at 33; and James C. Mohr, Historically

Based Legal Briefs, PUB. HISTORIAN, Summer 1990, at 19.

31. See, e.g., Pueblo of Santa Ana v. Baca, 844 F.2d 708 (10th Cir. 1988); United States v.

Dupris, 612 F.2d 319 (8th Cir. 1979); Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F.

Supp. 784 (D. Minn. 1994), aff’d 124 F.3d 904 (8th Cir. 1997); United States v. Michigan, 471 F.

Supp. 192 (W.D. Mich. 1979); Helen Hornbeck Tanner, History vs. the Law: Processing Indians

in the American Legal System, 76 U. DET. MERCY L. REV. 693 (1999).

32. See, e.g., Denson v. Stack, 997 F.2d 1356 (11th Cir. 1993).

33. See, e.g., EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1988). The Sears case

also gave rise to heated controversy. See, e.g., Thomas Haskell & Sanford Levinson, Academic

Freedom and Expert Witnessing: Historians and the Sears Case, 66 TEX. L. REV. 1629 (1988);

Alice Kessler-Harris, Academic Freedom and Expert Witnessing: A Response to Haskell and

Levinson, 67 TEX. L. REV. 429 (1988).

34. See, e.g., Kalejs v. INS, 10 F.3d 441 (7th Cir. 1993); United States v. Dailide, 953 F.

Supp. 192 (N.D. Ohio 1997); United States v. Lileikis, 929 F. Supp. 31 (D. Mass. 1996); United

States v. Koziy, 540 F. Supp. 25 (S.D. Fla. 1982); United States v. Linnas, 527 F. Supp. 426

(E.D.N.Y. 1981).

35. See, e.g., NAACP v. City of Niagara Falls, 65 F.3d 1002 (2d Cir. 1995); Irby v. Fitz-

Hugh, 693 F. Supp. 424 (E.D. Va. 1988); Dillard v. Crenshaw County, 640 F. Supp. 1347 (M.D.

Ala. 1986); Bolden v. City of Mobile, 542 F. Supp. 1050 (S.D. Ala. 1982); Peyton McCrary, Yes,

but What Have They Done to Black People Lately? The Role of Historical Evidence in the

Virginia School Board Case, 70 CHI.-KENT L. REV. 1275 (1995); Peyton McCrary & J. Gerald

Hebert, Keeping the Courts Honest: The Role of Historians as Expert Witnesses in Southern

Voting Rights Cases, 16 S.U. L. REV. 101 (1989).

36. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Commonwealth v. Wasson, 842 S.W.2d

487, 489 (Ky. 1993).

37. See, e.g., Peter Charles Hoffer, “Blind to History”: The Use of History in Affirmative

Action Suits, 23 RUTGERS L.J. 271, 272 (1992); N.E.H. Hull & Peter Charles Hoffer, Historians

and the Impeachment Imbroglio: In Search of a Serviceable History, 31 RUTGERS L.J. 473, 486

(2000); Tanner, supra note 31.

38. See, e.g., Lawrence Rosen, The Anthropologist as Expert Witness, 79 AM.

ANTHROPOLOGIST 555 (1977), reprinted in LAW AND ANTHROPOLOGY 499 (Peter Sack ed.,

1992).

39. 509 U.S. 579 (1993).

40. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

41. Daubert, 509 U.S. at 593.

42. Id.

 

43. Id. at 594.

44. Id. Although this factor is not listed separately in many accounts of Daubert, I follow the

most recent Advisory Committee’s note to Rule 702 in describing it as a fifth factor. FED. R.

EVID. 702 advisory committee’s note.

45. Daubert, 509 U.S. at 594.

46. Id. at 593.

47. Id. at 594.

48. Id. at 595; Raynor v. Merrell Pharms., Inc., 104 F.3d 1371, 1375 (D.C. Cir. 1997) (stating

that the inquiry as to the admissibility of expert testimony must focus solely on principles and

methodology, not on conclusions that they generate (quoting Daubert, 509 U.S. at 595)); see also

Michael H. Gottesman, Admissibility of Expert Testimony After Daubert, 43 EMORY L.J. 867, 869

(1994) (“ It’s The Methodology, Stupid!” ). But see Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997) (upholding the trial court’s inquiry into an expert’s conclusions).

49. See Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly

Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15

CARDOZO L. REV. 2271 (1994); see also Teresa S. Renaker, Evidentiary Legerdemain: Deciding

When Daubert Should Apply to Social Science Evidence, 84 CAL. L. REV. 1657 (1996)

(questioning the applicability of Daubert to psychological evidence).

50. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999); Marc N. Garber, Opening

Daubert’s Gate: Testing the Reliability of an Expert’s Experiences After Kumho, CRIM. JUST.,

Summer 2000, at 4; Michael H. Graham, The Expert Witness Predicament: Determining

“Reliable” Under the Gatekeeping Test of Daubert, Kumho, and Proposed Amended Rule 702 of

the Federal Rules of Evidence, 54 U. MIAMI L. REV. 317 (2000).

51. 526 U.S. at 150. The Court went on to say that it also consciously refrained from making

a definitive judgment of the applicability of Daubert factors “ for subsets of cases categorized by

category of expert or kind of evidence. Too much depends on the particular circumstances of the

particular case.” Id.

52. The recent amendment of Rule 702 provides, in part, for the admission of expert

testimony if “ (1) the testimony is based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.” FED. R. EVID. 702. The Advisory Committee’s note

indicates that the revision was prompted by Daubert and Kumho. Id. advisory committee’s note.

 

 

daubert v. merrel dow pharmaceuticals, 509 u.s. 570, http://laws.findlaw.com/us/509/579.html,    &  http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=509&invol=579

 

the summary of the headnotes is a very good precise of the opinion, which holds:

1.)federal rule 702 governs the admissibility of expert testimony in trials;

2.)foundational elements deal with the reliability of the testimony and its relevance, (and, most assuredly, its materiality);

3.)faced with a proffer of expert testimony, the trial judge must make an initial assessment under federal rule 104(a) whether the  testimony’s underlying reasoning or methodology is scientifically valid and can be applied to the facts at issue.  standards enumerated.  “the inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.

4.)cross examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising “general acceptance” standard, is the appropriate means by which evidence  based on valid principles may be challenged.  That even limited screening by the trial judge, on occasion, will prevent the jury from hearing of authentic scientific breakthroughs is simply a consequence of the fact that the rules are not designed to seek cosmic understanding but, rather, to resolve legal disputes.  Pp. 15-17.

Held:

The Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial. Pp. 4-17.

(a) Frye's "general acceptance" test was superseded by the Rules' adoption. The Rules occupy the field, United States v. Abel, 469 U.S. 45, 49 , and, although the common law of evidence may serve as an aid to their application, id., at 51-52, respondent's assertion that they somehow assimilated Frye is unconvincing. Nothing in the Rules as a [509 U.S. 579, 2]   whole or in the text and drafting history of Rule 702, which specifically governs expert testimony, gives any indication that "general acceptance" is a necessary precondition to the admissibility of scientific evidence. Moreover, such a rigid standard would be at odds with the Rules' liberal thrust and their general approach of relaxing the traditional barriers to "opinion" testimony. Pp. 4-8.

(b) The Rules - especially Rule 702 - place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. The reliability standard is established by Rule 702's requirement that an expert's testimony pertain to "scientific . . . knowledge," since the adjective "scientific" implies a grounding in science's methods and procedures, while the word "knowledge" connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds. The Rule's requirement that the testimony "assist the trier of fact to understand the evidence or to determine a fact in issue" goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Pp. 9-12.

(c) Faced with a proffer of expert scientific testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of other applicable Rules. Pp. 12-15.

(d) Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising "general acceptance" standard, is the appropriate means by which evidence based on valid principles may be challenged. That even limited screening by the trial judge, on occasion, will prevent the jury from hearing of authentic scientific breakthroughs is simply a consequence of the fact that the Rules are not designed to seek cosmic understanding but, rather, to resolve legal disputes. Pp. 15-17.

951 F.2d 1128 (CA9 1991), vacated and remanded. [509 U.S. 579, 3]

 

 

from the text of the opinion:

 

“The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. 4   [509 U.S. 579, 6]   Petitioners' primary attack, however, is not on the content, but on the continuing authority, of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. 5 We agree.”  pp. 6-7

 

[john jay:  the holding is laughably simple.  no argument over frye, apparently whose quick passage is not to be lamented by the court, over its reasoning.  the court just flat out agrees with the petitioner’s (plaintiff in the action alleging pre-natal damage) assertion that the frye test is superseded by the federal rule of evidence 702.  it couldn’t be any simpler than that.

 

thus, the federal rule governs the admission of expert testimony.

 

the rest of the opinion is to establish, presumably, the judicial gloss on just what that means.  pretty straightforward approach.:  john jay.]

 

from the text of the opinion:

 

We interpret the legislatively enacted Federal Rules of Evidence as we would any statute. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988). Rule 402 provides the baseline:

‘All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules [509 U.S. 579, 7]   prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.’

 

‘Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’

 

Rule 401. The Rule's basic standard of relevance thus is a liberal one.”  p. 7 

 

[john jay:  in short, if the evidence proffered meets relevance criteria towards judging the issue as hand, then the presumption if you will, is toward the admission of the proffered testimony.: john jay.]

 

from the text of the opinion:

 

“Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, [509 U.S. 579, 8]   or education, may testify thereto in the form of an opinion or otherwise."

 

“Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. The drafting history makes no mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to `opinion' testimony." Beech Aircraft Corp. v. Rainey, 488 U.S., at 169 (citing Rules 701 to 705). See also Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631 (1991) ("The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts").”  pp. 8-9

 

[john jay:  the authority of the judge to exclude extraneous/collateral controversy is not constrained by this ruling that f.r. 702 governs the admissibility of scientific evidence, and not the frye standard.  Notes the court in the following passage, the trial court has to make an assessment of credibility. :  john jay.]

 

from the text of the opinion:

 

“That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place [509 U.S. 579, 9]   no limits on the admissibility of purportedly scientific evidence. 7 Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

“The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert "may testify thereto." (Emphasis added.) The subject of an expert's testimony must be "scientific . . . knowledge." 8 The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" [connotes more than subjective belief or unsupported speculation.] The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster's Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science. See, e.g., Brief for Nicolaas Bloembergen et al. as Amici Curiae 9 ("Indeed, scientists do not assert that they know what is immutably `true' - they are committed to searching for new, temporary theories to explain, as best they can, phenomena"); Brief for American Association for the Advancement of Science et al. as Amici Curiae 7-8 ("Science is not an encyclopedic body of knowledge about [509 U.S. 579, 10]   the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement" (emphasis in original). But, in order to qualify as "scientific knowledge," an inference or assertion must be [derived by the scientific method.] Proposed testimony must be supported by [appropriate validation] - i.e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability. 9 “

[john jay:  in short, there must be disciplined methodology.: john jay.] 

[and, a further limitation upon a proffer of scientific evidence is found in other rules, 703, 706, & 403.]

from the text of the case:

“Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially [509 U.S. 579, 15]   outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." Judge Weinstein has explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge, in weighing possible prejudice against probative force under Rule 403 of the present rules, exercises more control over experts than over lay witnesses." Weinstein, 138 F.R.D., at 632.”

 

[john jay:  and, finally, a very interesting observation from the court on the judge’s function as evidentiary gate keeper in this whole process.  the court recognizes that the role of science is to find/search/posit/argue large truths.  the court says, however, that the time involved in this process is not necessarily appropriate for the great job of the courts, that being quick and definitive conflict resolution.  in the bluntest of terms, the court says that the interests of quick resolution and finality of result, e.g., preventing litigation that might see saw on the edge of scientific investigation from one epoch to another, outway the interest of finding ultimate philosophical/scientific/ethical truths.  in short, better sure than absolute.  you might not like the position, but it is fairly and unequivocally stated as an institutional bias of the courts by the majority in this case.: john jay.]

from the text of the court:

“Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy, and will be inimical to the search for truth. See, e.g., Brief for Ronald Bayer et al. as Amici Curiae. It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment - often of great consequence - about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding, [509 U.S. 579, 17]   but for the particularized resolution of legal disputes. 13”  p. 17.  

[the court’s holding:  john jay]

 

from the text of the court:

 

“To summarize: "General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence - especially Rule 702 - do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.”  p. 17.

 

 

 

black’s law dictionary, revised fourth edition, 1968, west publishing, st. paul, Minnesota

 

collateral.  by the side; at the side; attached upon the side.  not lineal, but upon a parallel or diverging line.  …. .  p. 327

 

collateral facts.  such as are outside the controversy, or are not directly connected with the principal matter or issue in dispute.  summerour v. felker, 102 g. 254, 29 s.e. 448; garner v. state, 76 miss. 515, 25 so. 363; jones v. state, 70 ga.app. 431, 28 s.e.2d 373, 386.

odder still, this ... on the word "racism" ...

odder still, this  ...  on the word "racism"  ...

such are the vagaries of language that a subtle change in the meaning of a word has occurred before our eyes and mind, almost without notice.

i speak of the word "racism."  oh, it is still a word of opprobrium, and nobody is immune from the sting of the word is accused of being a racist, or advancing racism.  but, the thrust of the word has changed, and it amounts to a complete change in the nature of the accusation.

racism used to mean that the racist was a person who devoutly believed that his racial or ethnic group was superior to another, or, indeed, superior to all others, and was usually a concept antecedent to an attempt at domination or even the elimination of another race or ethnic group.  thus, in europe in the 1850's, we saw the spectacle of european anthropologists and phrenologists, and perhaps even hairdressers, pontificating upon the superiority of the white race over the african race, and with skull measurements and aesthetic observations as collateral evidence of the proposition.

it was a foundation of empire.  it was an intellectual and psychological make weight to excuse the conquest and domination of another group or society.  and, the europeans, not missing a turn, turned the same attitudes towards others, including jews, as an excuse for anti semitism.

hitler's germans were not the only anti semites in europe: it was a european sin, and the peculiar conceits lying as its underpinnings were applied the world over.

that is not the application of the word this day.

as used in contemporary parlance, the word is applied specifically to those who resist immigration of foreign nationals into their native lands (such word usage, indeed, in and of itself might be termed as "racist" by those who wield it as an offensive intellectual sword), such foreign nationals almost exclusively of islamic, muslim or arabic origin.  those who usually raise such objections are european nationalists and americans who oppose islamic immigration into europe and america, and such persons with a nationalistic bent are decried and derided as racists.

do such persons posit their racial superiority over the muslim immigrants whose presence they decry?  if they do, it is not in such a manner as i have ever been made aware of, and i am not aware that any person of prominence in the european nationalist or american conservative movement has ever made such an allegation.

no, those people who have decried islamic & muslim immigration have done so on the basis that they wish simply to preserve those affinities, beliefs, religions, cultural heritages and adherence to western values and civilization such as have identified and give cultural vitality to their societies, and their nations.

yet, those who wield the term in derision at the nationalists and conservatives insist that islamic and muslim immigration be imposed upon the european nations, and that if the europeans do not acquiesce in such social policies as forced upon them by leftist governments, ... , why then, they are racists.

so, the worm has turned.

no longer does the term racist describe one who would advance the notion of his own superiority as justification for the conquest of another, as in the old european model that supported colonialism and so many other misadventures, ... , but it is applied to one who would assert his own identity and his right to resist and oppose his own conquest.

by islam.

those who wield the phrase as an offensive weapon upon european nationalists, insist upon the right of islam to advance its interests over indigenous populations, and ultimately to dominate and conquer european nationals.

in short, the word racist is now turn upon those who resist their own conquest, and at the hands of an intruding and in their view interloping foreign force.

geert wilders, for instance, does not advance the superiority of the dutch in order to justify conquest of north africa.  he simply insists that the dutch, having derived certain benefits, comforts of association, and advancement of certain values by being dutch and by having stayed dutch, should have the right to remain dutch and to preserve themselves, in their homes and in their country, should they see fit.

he resists the notion that the dutch should acquiesce passively to islamic conquest by demographic pressure and demographic invasion, and insists that the dutch be allowed to take those measures to remain dutch, and to remain the netherlands.

he seeks no conquest outside his borders.

and, for this, in the eyes of the international left, the leftist media, and the leftist intelligentsia, geert wilders is a racist.

he most assuredly is not.

he most assuredly is not, as mr. hegel was, buying into all the nonsense advanced by the european "scholars" and "intellectuals" of his time, as to the racial superiority of the white europeans, especially the western europeans as epitomized by germany and germans.  he had the dialectic to prove it.

odd, this, this change in the use of the word, and of the weight of its attack.

it no longer is used to accuse and blunt aggression, or the dominance of those who asserted superiority.

it is used now in an attempt to force others to passively accept dominance by others.  in other words, if you do not accept insinuation into your society by others and accept their eventual rule, you are a racist.  in short, you are a racist, if you do not simply accept your fate passively, and accede willingly to the right of others to dominate you, those others typically being different from yourself.

all the animals are equal on this farm, it is just that some are more equal than others, and they get to decide how words are used, and against whom they are directed, and whose purposes they advance.

odd, this.

john jay @ 11.15.2009 

update:  i got such a big laugh from gmroper's comment, that it put me to mind of one of my favorites, that being ambrose bierce and his famous work, "the devil's dictionary."  gm's remarks reminded me of one of my favorite observations from bierce, his definition of the term "infidel."

so, here from the "devil's dictionary" by ambrose bierce:

INFIDEL, n. In New York, one who does not believe in the Christian religion; in Constantinople, one who does. A kind of scoundrel imperfectly reverent of, and niggardly contributory to, divines, ecclesiastics, popes, parsons, canons, monks, mollahs, voodoos, presbyters, hierophants, prelates, obeah-men, abbes, nuns, missionaries, exhorters, deacons, friars, hadjis, high-priests, muezzins, brahmins, medicine-men, confessors, eminences, elders, primates, prebendaries, pilgrims, prophets, imaums, beneficiaries, clerks, vicars-choral, archbishops, bishops, abbots, priors, preachers, padres, abbotesses, caloyers, palmers, curates, patriarchs, bonezs, santons, beadsmen, canonesses, residentiaries, diocesans, deans, subdeans, rural deans, abdals, charm-sellers, archdeacons, hierarchs, class-leaders, incumbents, capitulars, sheiks, talapoins, postulants, scribes, gooroos, precentors, beadles, fakeers, sextons, reverences, revivalists, cenobites, perpetual curates, chaplains, mudjoes, readers, novices, vicars, pastors, rabbis, ulemas, lamas, sacristans, vergers, dervises, lectors, church wardens, cardinals, prioresses, suffragans, acolytes, rectors, cures, sophis, mutifs and pumpums.

that should just about cover it.  laughing. jjjay.

odd, that ...

... a compassion readily extended by b'obama, and leftist media types & politicos, to mikal nadal hasan that he may have snapped when he murdered 13 and wounded many more, was never extended by the left when u.s. soldiers and marines were accused of combat "atrocities."  no cracking under "stress" allowed for someone who has just seen his friend killed in combat, ... , not from the left.

my sincerest hope is that john murtha's fat assed carcass rots in hell, for his treatment of his fellow marines.  murtha only goes to show that even a marine, once an honorable man, is capable of corruption and decadence, ... , at the trough of politics and influence, ... , the fat bastard.  who can call him a "man?"

never mind that mikal nadal hasan shouted "allah ak'bar" when he opened fire, or that his assault was planned, conceived and nurtured by islam, or that he sought out al queda.  the left thinks, b'obama thinks, that he may have snapped under "pressure."  so much for five or six centuries of anglo-saxon-norman jurisprudence, and the formulation of premeditation.

that a murderer of united states service men & women could find so many apologists among the left, while those who serve our country in combat and under fire have never once received like compassion from those worthless bastards they protect, ... , it begs credulity, ... , why do we share the same air with these leftists?  why do we allow their fetid stench?  just askin'.

imho.

john jay @ 11.10.2009

the cold hard lessons to be taken from fort hood: 1.)we cannot trust muslims in the military service, and 2.)unarmed soldiers are unarmed soldiers.

the cold hard lessons to be taken from fort hood are easily grasped and summarized: 1.)we cannot trust muslims in the military service, and 2.)unarmed soldiers are just that, unarmed soldiers, and quite as vulnerable to armed attack as anyone else.

milak nadal husan killed his patients.

but, before he killed them, he made sure to kill as many of his fellow mental health colleagues as he can, deliberately singling them out for attack.  and, then, he turned his weapons upon those he treated, upon those who had turned to him for compassion, insight and humane care.  in short, he killed mercilessly, those who had trusted, and perhaps loved him.

can there be any greater betrayal?  well, of course not.  unless it is the betrayal of a person given station and privilege and respect in life by a society, allowing him to rise into the elite (he served in president obama's transition team, on a panel convened by george washington university as part of that presidential transition team, served with a congresswoman and two employees of the homeland security department, see atlasshrugs at http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/11/bush-our-proxy-president-bush-at-fort-hood-obama-at-camp-david.html , certainly more recognition and prestige than most of us will achieve in our lifetimes), ... , allowing him to rise into the american political and social elite.  and, he betrayed this beneficence by murdering our finest sons and daughters.

this man was a psychiatrist.

this means that he was inculcated into a learned profession whose values and beliefs and teachings go back centuries, and he was taught to value human life, and, above all else, above every other consideration, to do no harm to those to whom he ministered his skills and his profession.

if a man so taught can turn his back on such teachings, in order to serve islam, than no muslim can be trusted to uphold the faith placed in him to serve this country, before the teachings of islam.  certainly, if he would betray the values of the hippocratic oath, which are taken to g_d and to humanity, than no sense of duty or fealty or obligation or devotion to service taken from a mere military academy, or from r.o.t.c. or officer candidate school, no oath taken to mortal coils alone, can withstand the obligations owed to mohammed and islam.

it is just that simple.

it is insanity to have muslims in the united states military service, at any level, regular army or navy or air forces, the reserves, the national guard.  they cannot be trusted to serve.  we cannot allow our lust for diversity and harmony at any cost to jeopardize our security, or the lives of our service people.  again, see atlas shrugs, here:  http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/11/lesson-of-fort-hood-jihad-army-chief-general-casey-fears-backlash-for-muslim-us-soldiers.html .

ft. hood texas is the home base for the 101st airborne cavalry, if i have the unit designation correct.  it is home to 3 or 4 brigades of troops who have done multiple tours in iraq and afghanistan, some units have seen as many as three or four such tours.

they are the finest armed infantry in the world, as battle hardened and proficient as the troops of any nation,  (i have a soft spot for the marines, and consider no troops on earth better), save perhaps the u.s. marine corps.

the armed assailant, 13 killed, 30+ wounded.  the unarmed infantry, 0 casualties inflicted in defense.

it was left to two civilian police officers responding some minutes after the carnage, who apprehended and subdued the assailant after inflicting multiple gunshot wounds upon him, in an exchange of gunfire that left the woman officer, kimberly munley, seriously wounded.  her fellow officer, sgt. mark todd, also exchanged gunfire with hasan, and may have inflicted the wounds that took hasan out of action.  does it make much difference who inflicted the shots, the heroism of these two officers is indistinguishable?  again, see atlas shrugs, your one stop place to become fully informed on what happened, and the reactions to it:  http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/11/fort-hood-jihad-heroes-at-every-turn.html .

but, the lesson is as clear as it is stark.--

never go to a gunfight without a gun.

as long as the military has within its ranks persons such as milak nadal hasan who will betray their military service, their honor, their professional teachings for islam, they must be guarded against, and the only competent guard is an armed soldier ready and willing to step up and kill such assailants.

hasan was making good an escape until he ran right up against the brick wall of munley and todd.  he was still armed, and he still had ammunition on board.  think of that.  who else, how many others, would this islamic jihadist have killed before his day was done, were it not for these two police officers.

to the extent our leaders and elites cannot perceive these truths, and cannot take steps to get muslims out of our military, ... , well, then, they are morally decadent and corrupt (hey, there's a news headline for barney frank to read over coffee in the arms of his next teen age lover), and they fundamentally misjudge the character and temper of those they "lead."

i know where the elites came from that milak nadal hasan sought intimidate by this act, sought to call them to question their core values, and sought to chip away at the same.  update: please see postscript below, and link to "the other mccain."  i also know the temper, character and intelligence of the public, the common folk, from whence i come and with whom and among whom i reside.

and we are damned tired of this bullshit.  and, we expect our leaders to step up and serve our values and our beliefs.  and, if they don't, if they do not earn their keep, we are very much inclined to throw all the bastards out, right out on their fat dead butts, and on their numb pointy little heads, and their adolescent concubines with them.

time to man up, friends. 

time to gird the loins, shout and stand for what we believe, and to take the necessary remedial measures to shape up our "leadership."  this is, by the way, who hasan sought to intimidate, knowing full well that he could not shake the core values of the rest of us.  and, being the astute assassin he was, and studying just the weak points in our society with psychiatric precision, he knew upon whom to direct his fire when he shot his mental health and professional colleagues: he knew general casey's reaction.

he did not understand ours.

we will kill right back.

john jay @ 11.08.2009

update continued: jeffry goldberg at "the other mccain" almost gets this point, when he looks to the studied indifference of the left to the significance of what happened at ft. hood, and what happened all over the country, after the shootings, ... , when people "thought" of what happened.  he identifies very precisely that which has occurred amongst the left in "understanding" the events, and, as a consequence, what is being communicated to the rest of us by the mainstream media.

but, he fails, in my judgment, in taking the very next step, and that lies in the realization that this is precisely what was intended to be the reaction of milak nadal hasan when he executed this killings, when he executed the service men and women.  he wanted to do these acts, precisely so that public reaction and sentiment could be gauged by the jihad.  and, he wanted to do these acts, precisely, and this point must be understood, so that this reaction and sentiment could be engaged, so that he could take just one more little chip away from our belief in ourselves, our institutions, our heritage and the assertion of our politics around the world.

major milak nadal hasan wanted to instill doubt, and examination, and self criticism amongst us, and being the astute observer of the american scene and the american psyche, (please do not lose sight of the fact that this man is a trained psychiatrist), this is the calculated aim of his act.

as much as it was the physical act of repetitive murder, it was a calculated act to elicit a certain psychological reaction, and to initiate a certain intellectual calculus amongst american professionals, including mental health professionals, and military professionals, such as the lamentable general casey as described above at atlasshrugs2000.  see again:  http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/11/lesson-of-fort-hood-jihad-army-chief-general-casey-fears-backlash-for-muslim-us-soldiers.html .  "army chief general casey fears backlash for muslim u.s. soldiers." 

this is precisely the "discussion," precisely the "concern", that milak nadal husan sought to engender by the brutal murder of his patients.  he knew the focus could not be on them, for, to focus on the troops that he killed would be to confront the truth.  nadal husan knew that the elites would not focus on truth, but, would focus on him, and ultimately, would focus on an "apology" for his acts.

nadal husan had a keen appreciation for the psyches of those whom he targeted by his acts, for those whom he intended to influence.  that is what terror is about, folks, it is about targeting and influencing a certain segment of a population, because of their psychological weakness.  nadal husan knew what it was that he wanted to kill, when he killed our troops, and that was the "resolve" of our elites and leadership.

this was a very precisely calculated act on his part.  please, understand that.

i ask you to read goldberg's article at "the other mccain," but to understand its limitations in the context of my above remarks.  the link:  http://rsmccain.blogspot.com/2009/11/fort-hood-massacre-jeffrey-goldberg-on.html .  he understands what the left has done in reaction to these events.  he does not understand, as do you and i, that this was precisely as intended by major milak nadal hasan.

may he rot in hell.  may his 72 virgins be festering whores.

my oregon ducks, oh, those ducks ...

friends:

it doesn't really amount to much, but my beloved oregon ducks just kicked the living snot out of the u.s.c. trojans this saturday last.  the phrase "beat them soundly" really doesn't describe what they did to u.s.c.   "thrashed", "pummeled," come closer.

the highlights show oregon running backs slashing at will through the u.s.c. defensive backfield, chewing up huge yardage.

but i want you to know who won that game for oregon.

it was the big guys, the "fat guys," who never get much glory.  when was the last time you read a pre-game interview with an offensive lineman, or saw an after game televised interview with one, sweat and blood dripping from his brow, scratched and taped on his arms, hands wrapped like clubs.  doesn't happen very often, does it.

well, it was the big guys.  the oregon lines completely and absolutely dominated u.s.c.'s lines, just tap dancing on their helmets the whole day long.  the highlight reels show the oregon lineman opening huge holes in the line, into which nary a linebacker ever stepped.

holes, into which nary a linebacker ever stepped.

the u.s.c. linebackers were never in the game, either taken from plays by misdirection, or just blocked to the ground or away from the intended path of the runner and the ball.  the u.s.c. defensive lineman and linebackers were just herded into little clumps, and kept there.  i have never seen offensive lineman who kept on their blocks like the oregon kids, and who just kept pushing & pushing their opponent until the play was finished.

the u.s.c. lines, and the defensive linebackers, were just taken from the game.

it was, in short, just what football is supposed to be, and as it is supposed to be played.  this saturday was the oregon ducks' day, and u.s.c. did well just to show up.  well, really, they didn't show up, now, did they.

a glorious day for the ducks, for oregon, and for oregonians.

reality will intrude soon enough.  this day, i am gloating, and taking pleasure in a marvelous and well fought victory.

john jay @ 11.01.2009

chaucer. copernicus. michaelangelo. yeats. shakespeare. churchill. socrates. plato. aristotle. hegel. schopenhauer. brecht. hesse. voltaire. luther. locke. darwin. newton. einstein. heisenberg. galileo. botticelli. bach.

update:  the french fight back.  but, it is too late?  the article, "sarkozy fights the islamisation of france," is found here at atlasshrugs, http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/10/sarkozy-fights-the-islamisation-of-france.html .  the french, rather belatedly, are trying to restore some semblance, some notion, of national pride back into the populace.  read of the efforts the government advocates, and you will find just how far the french have gone in abandoning all that made them french in the first place.  reading this article, one literally does not know whether to spit, swallow or smile.  but, i suppose it is a start.

original article begins:  the death of western civilization.

---  chaucer.  copernicus.  michaelangelo.  yeats.  shakespeare.   churchill.  socrates.  plato.   aristotle.  hegel.  schopenhauer.  brecht.  hesse.  voltaire.  luther.  locke.  darwin.  newton.  einstein.  heisenberg.  galileo.  botticelli.   bach.  dostoevsky.  hugo.  rand.   rembrandt.  ---

turned from.  cast away.  abandoned.  without struggle.  apparently without regret. 

a great civilization dies, slips quietly beneath the bobbing ways, apparently without adherents.  from  those whose lives blossomed under its tutelage, only sheer cowardice, ignorance and an addiction to physical comfort is to be seen.  and, at this, absolutely no outrage from a populace.  who, it must be added, richly deserve the fate they are to be suffered, and the deaths inflicted upon them by the long knives of islam.

do the europeans not have the native wit to understand that this is simply the muslim conquest of europe?

time to fight, if they are to preserve themselves. or, do they simply not care?  they simply appear past comprehension, and, most assuredly, beneath contempt.  they squander and surrender the flowering of man, the attainment of arts and literature with no equal, and let it pass without so much as a whimper.

g_d has damned them to hell, and they are too stupid to notice.  or, believe in it.  but, they will suffer it.

quite frankly, i think the euro's and english too pathologically lazy and ignorant to care about anything.

http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/10/do-not-object-to-islaaaaaaaaam.html#comments .  please read atlasshrugs.

http://www.jihadwatch.org/2009/10/european-union-set-to-outlaw-objections-to-islamic-practices.html  here, at jihadwatch.

and, the original compositionby paul belien, at "hudson new york," where he is a fellow at the hudson institute.  http://www.hudsonny.org/2009/10/if-all-goes-as-planned.php .  the title to the original article is, "objections to muslim and homosexual practices to be unlawful in europe - media [missing in action.]"

take a good long loving look at this humanity, it may very well be the last you will ever see of it, the height of its glory.  lies before us, only squalor, inequity and hate.  in short, the rule of islam.

usually in the face of stupidity i write from bugs bunny, who oft times remarked (there being a lot of stupidity going around these days), "it is to laugh, it is to cry."

this day, i just cry.

john jay @ 10.27.2009

   

anybody up for another oz? another make believe country? yugoslavia, anyone? bangladesh?

yugoslavia anyone?  bangladesh?

a rose by any other name would smell so sweet.

yes.  true enough.  but, another name might not be so descriptive.

take for instance, the phrase “multiculturalism” as a descriptor of nation.  what does the word “yugoslavia” tell us that the word “multiculturalists” doesn’t?  what for instance is revealed in the words “baluchis,” arabs, “azeris,” “ kurds,” turkmens, persians, sunnis, shi’as, zoroastrians, … , and, history, … , that is concealed in the word “iran?”

what import does the fact that kurds live in turkey, syria, iraq, iran and g_d knows how many other places, including los angeles, californa and that they are a very industrious, community and business oriented people, … , yet the word kurdistan does not exist, … , have for regional stability.

yet there are those who would make yugoslavia a world norm.  who would use multiculturalism to fracture the nature of nationhood.  and, for purposes of this essay at this blog, are all related to the threat of islam, would turn europe and the united states into 3^rdworld countries.  it seems a mystery to me, but the euros, after contending with the mess of yugoslavia from its birth to its death, now intend to manufacture an entire european yugoslavia, in the membership of the euro union states: they intend to recreate every fissure, division, racial & ethnic rivalry, every religious animosity & schism that destroyed yugoslavia, in their own neighborhoods.  they succeed admirably.--

there are many nation states constructed by international fiat upon the disintegration of the european colonial system.  and, likewise upon the fall of the ottoman, austro-hungarian and russian empires.  none work or have worked very well, and most have failed in some form or another, primarily because they were artificial constructs superimposed upon, …. , well, nothing particularly cohesive, as it worked out.

the middle east and eastern europe have been particularly beneficiary of this process, as well as the various african countries largely doomed to failure. 

first, let us take a very quick, cursory and once over lightly view of what a nation or a society is.—

the essential features of societies, countries, nations, that make them functional over time, and give them the ability to withstand sectional and political strife are pretty straightforward, and should be accessible to almost any contemplative or open intellect, ... , they are things such as ethnic affinity, common values, heritage, culture, a place in a long functioning civilization,  and the like which predate the state and are not artificial creations of the mythology of the state (which tend to fracture easily under stress), nor are they imposed or assumed by powers without the state. the things that make states viable over the long term, such as respect for the rule of law and a very firm adherence to the concepts of civic and private virtue, do not violate the above, compliment them, and are in some sense derivative of them.

obviously, history and ethnicity are very important.  it is comforting to be around people who look like you, like the same foods, and share the same outlook.  but, that does not insure nation, does it, as no fight is quite like a family fight, or a family feud.  the thing that holds cultures, societies and nations together are the respect for rules and laws, the respect for heritage, and, respect and adherence to civility, honesty, piety and rectitude.  and, going out on saturday and getting blasted, and going to las vegas twice a year to look at naked dancing girls.   we cannot get so damned pious that we cannot have a good time, eh?

in an successful nation there is an overriding sense of identity and community amongst its citizens.  of belonging.  absolute consensus is not required, so long as their exists faith that one and one’s family and one’s kinship will be considered and treated fairly.

and, then, there is the matter of the flag.  i don’t understand it, but if a flag does not exist as symbol of a nation, the nation is in trouble.  It is something beyond explanation, like rising to sing the national anthem.  If no one rises, there is not a nation.

the features described above, though the description perhaps not as learned as some would like, more or less describe stable nations that function, have functioned well in the past, and are likely to survive into the future, though history teaches that no society or people are free from discord or divisiveness, nor from political and sectarian violence from time to time.

all is not tranquil amongst groups of people, never has been, and never will be.

but, nations exist because their peoples have learned to deal with these things, and because the essential elements of national identity hold them together through it all.

this business of identity, so symbolized by flag, is a bedrock of nationhood.—

there are those who criticize the european & american nationalists for having the temerity to voice these concepts, and for criticizing and opposing those political elites in the euro union who would turn each member state into yugoslavia, or iran, e.g., a hopelessly fractionalized, divided and fractionalized entity with no hope of functioning with a common identity or purpose.

like all romanticized radical conceptualizations, the euro leftist elites posit the notion that they will create something better and stronger by destroying the modern nation state, that from its ashes will rise, phoenix like, a high order of being.  they will do this upon the vehicle of muslim fundamentalism.

this notion, this triumph of wishful thinking over the lessons of history, is doomed to failure.  the result so this tinkering, of this asinine concept of multiculturalism, is foreseen by history.  it is called yugoslavia.  It is called the middle east, home to the sorriest examples of artificially imposed “communalism” on earth.

charles johnson unthinkingly excoriates “nationalism” in europe at little green footballs at every conceivable turn.  to johnson there is something vaguely sinister in a sentiment that would extol national unity based on values, culture, affinity and history over and above the forced disintegration of a society premised upon extremely unwise immigration and social policy.  the word “hitler” is accompanied by a one note drum beat.

yet, johnson is silent about washington, jefferson, franklin, walt whitman, thomas paine, the nationalists who shepherded the united states into being; he breathes not a word of gandhi who birthed india; and, his silence is resounding on garibaldi, or simon bolivar, or charlemagne, or martel and the others who have given identity to a people, and who founded nations and national movements.  of the good prince hal, and, yes, of falstaff?

and, charles johnson, and his little pea head and his little pea-headed followers, are ominously silent on the subject of joan of arc, who rose against her country's invaders, and who helped her people defeat them, in the name of nation.  and, people.  nor the rest, nor the all, who have died to defend the nobility embodied in nation.  johnson just will not see.  he will not see that nathan hale did not give "... but one life, for multiculturalism."

premised on notions of nationalism, and patriotic fervor devoted to values, fair process, and an elevated notion of the fate awaiting political man participating in national rule.

in my view, charles johnson is something of an idiot on this topic, no less and no more so than other idiots who would see the world become a collection of yugoslavia's, and the like.

it makes no sense to me.

john jay @ 1026.2009

p.s.  i think i have said about all i can say on the substantive topics that interest me enough to write these essays.  so many others say it better, i think, and my voices adds little rationality or order to the general cacophony.

so, in large measure, i don’t see the utility of continuing to write things that are not very much read, when others do a better job this than i, and have much larger readership.

so, i think that i am going back in a more focused manner to my original mission, and that is the tactics of the fight against jihad when it flares into open battle.  the mission:  http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2007/12/the-goal-of-thi.html   but, first, i am gonna take a nap.

chronic traumatic encephalopathy, ... , a modest proposal to save american football from this horror.

chronic traumatic encephalopathy.  that's punch drunk to you.  trauma inflicted dementia, personality degeneration, and addiction to drugs and alcohol prior to death.  suffered by those sturdy men, and now it seems, perhaps the boys, who play my favorite sport, american football.  the cumulative effect of blows to the head, concussions and like trauma.  the clinical studies seem to establish the pathology's frequency.  http://sports.espn.go.com/ncf/news/story?id=4585791 .

i love football.  it is battle between city states, and chess, and go, and the art of war by sun tzu, and "get thar fustest with the mostest," and territorial conquest, all wrapped into one wonderful game.  with quasi naked beautiful girls strutting their stuff on the side line.  what could be better than that?  this day, my beloved oregon ducks take on the washington huskies in seattle, washington while my beloved oregon state beavers take on the u.s.c. trojans in the city g_d forsook, the city of angels.  it is to die for, apparently, quite literally.

"be kind to your friends in the swamp, where the weather is very, very damp, be kind to your friends in the swamp, for the duck may be somebody's mother."

"i am beaver born, and i am beaver bred, and when i die, i will be beaver dead."

and, apparently, quite possibly demented, as well.  hard to figure out how to work in "demented" or "dementia" into my little ditties.  oh, not so hard to come up with a rhyme, say, like "cemented" or "cementia", or even "crementia."  (hey, poets invent words.  whitman and millay did it all the time, as did dinkinson, that little dickens.)

the rhyme is easy.   the "funny," ... , well, it wouldn't be so funny, now, would it?

i have a modest proposal to save the game.  styrofoam heads, like "jack," the owner of the outfit from the "jack in the box" commercials has, ... , well, no, not really.

rugby?  no, not that either.  not the entire sport, but to wear the same uniforms.

i suggest that we remove the helmets from the players, decrease the size of the shoulder pads, and stop teaching the use of the head as a battering ram for tackling, and as a means of striking an opponent to inflict cumulative punishment.  this latter tactic, is, in fact, working a little better than intended, and it is time to stop the tactic, and time to take away the offensive instrument, or, more precisely, the weapon, which enables the tactic.

we don't pound nails with our heads, and nor do we crack rocks on chain gangs with them, and certainly no one would tape his head to the bumper of his car to "absorb" accidental impact.  silly notions, those, aren't they?  well, to my mind, no sillier than using the head as a weapon in football.

take off the helmets.  reduce the size of the pads everywhere else.  man up.  play the game.  without making everyone who plays it into a punch drunk idiot later in life.

so far as known, ruggers do not suffer chronic traumatic encephalopathy.  (little girl soccer players may very well, the effect of concussion known very well among them.  they don't seem to head the ball good. didn't want to repeat "very well."  smiling.  my attempt to interject some levity, in a grim subject.)

ruggers don't wear helmets or padding, though the game, and the players, are ever bit as rugged as football players.  ruggers are as tough as rodeo hands, if not more so.  both like a good beer, or two, after the game, to compare cuts, scratches, broken noses and split eyebrows.  football players might enjoy the traditions, too.

what are a few teeth in exchange for your sanity, later in life, to be compos mentis when you die.  not a drooling idiot. 

john jay @ 10.24.2009