Error Theory

As Obama's solicitor general, Supreme Court nominee Elena Kagan urged the Court to dismiss the suit that our 9/11 families have been pressing against the Saudi government and several Saudi princes for their extensive funding of al Qaeda. The families sued under the domestic tort exception to sovereign immunity, which according to Kagan's Supreme Court brief (at p. 14):

requires not merely that the foreign state’s extraterritorial conduct have some causal connection to tortious injury in the United States, but that “the tortious act or omission of that foreign state or of any official or employee” be committed within the United States. 28 U.S.C. 1605(a)(5).

The "tortious act or omission" is the wrongful act (the tort) that leads to the injury. Thus she is claiming that for Saudi funding of al Qaeda to be actionable, the funding itself has to have been transacted within the United States. Compare this with the actual wording of 28 U.S.C. 1605(a)(5):

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case – ... (5) ... in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment..."

Contrary to Kagan's assertion, the law only specifies that the injury has to have occurred within the United States. Not a word about the wrongful act that leads to domestic injury also having to have taken place within the United. Kagan flat lied about the clear wording of a law that goes to the very heart of our ability to use the courts to combat Islamic terrorism, and thanks to the Court's failure to review this crucial case, the simple wording and intent of Congress—that foreign states whose actions do injury in the United States can be sued for those injuries—has now been undone, as if the law had never been passed.


"Oops!... I did it again"

Kagan proves that her lie was self conscious by also lying about the relevant Supreme Court precedent, claiming (again at p. 14):

In Amerada Hess the Court considered and rejected the argument that domestic effects of a foreign state’s conduct abroad satisfy the exception. 488 U.S. at 441.

In fact, the Court in Amerada never considered "the domestic effects of a foreign state's conduct abroad" at all, for the simple reason that there were no domestic injuries in that case. The injuries occurred outside of U.S. territory, which is why the domestic tort exception was held not to apply. Here are the simple facts, as recounted in Justice Rehnquist's majority opinion (joined by Brennan, White, Stevens, O'Connor, Scalia and Kennedy):

... the injury to respondents' ship occurred on the high seas some 5,000 miles off the nearest shores of the United States. Despite these telling facts, respondents nonetheless claim that the tortious attack on the Hercules occurred "in the United States." [At p. 440.]

The Amerada Company ship was attacked at sea. Since the tortious act and the damages from it both occurred "5,000 miles off the nearest shores," the Court did not bother to distinguish between the wrongful act and the injuries from it. Kagan uses this to claim that the Court found Amerada's domestic injuries to be unrecoverable, when in fact the Supremes agreed with the district court that there were no domestic injuries (p. 439-441).

Has any solicitor general ever flat lied to the Supreme Court before? Isn't any lawyer who unambiguously lies to the Court about the simple facts of a cited holding subject to disbarment for unethical behavior? And she did it for an unethical purpose: to help the financiers of 9/11 escape justice. Any moral person would either resign in the face of such a job assignment, or would limit himself to making what honest arguments could be mustered. This moral pervert chose to lie and ought to be busted out of the profession for it, not promoted to the highest court in the land.


Obama favors a legal response to terror while working to pull the law's teeth

Obama has long been a proponent of shifting from a military response to Islamic terrorism to a civilian/criminal law response. Putting the terrorists in jail is supposedly more effective shooting them on the battlefield. This is why Attorney General Eric Holder decided to try Khalid Sheikh Mohammad in New York City. There is supposedly nothing Mohammad wants less than a public platform for crowing that America must submit or die, while credibly demanding that we must either reveal our intelligence secrets or let him go free.

It is an insane idea, seeking to move the fight against Islamic terror to an arena that disarms us and empowers them, but even that isn't enough for Obama. He has to have his solicitor general lie to the Supreme Court for him in a way that guts what laws Congress has already passed for fighting terror in the courts. First he moves the fight to our relatively toothless courts, then he pulls what teeth the courts have.

If Obama's gutting of the legal fight against terror is intentional it means that he prefers America to have NO effective defense against Islamic terrorists (perhaps because they are his co-religionists). Kagan's nomination to the Supreme Court is a clear indication of this intent. Obama is ratifying, in the strongest possible way, her gutting of the law, and like Kagan, he also proves intent by repetition, nominating Kagan's partner in crime, James Cole, to be his Deputy Attorney General.


Oops!... Obama does it again: DAG nominee also favors a legal response to terror while working to pull the law's teeth

Shortly after 9/11, Cole wrote that, since the targets were primarily civilian, the 9/11 attacks should not be viewed as acts of war, but as violations of civilian law, to be combated through our civilian court system. If Cole really wanted to make the civilian courts our main line of defense against Islamic terrorism he would be for aggressive use of the courts in this fight, but in practice, he comes down on the other side, arguing as the lawyer for one of the implicated Saudi princes that the family suit to recover damages from the 9/11 attacks is invalid.

Cole's service to the Saudis creates "a direct conflict of interest" writes Debra Burlingame:

In light of this history, it is impossible to fathom how Mr. Cole can ethically carry out his duties and responsibilities as the de facto head of the Justice Department while U.S. troops are fighting terrorists who receive funding and support from organizations associated with the Saudi government and their proxies. This is a direct conflict of interest. Given Saudi NGOs’ continued involvement in terrorist facilitation world-wide and their connection to the Saudi royal family, this conflict of interest will cripple Mr. Cole’s ability to ethically perform his duties as head of a department charged with investigating and prosecuting terrorist facilitators associated with or working for the Saudi government.

Yes well, to Obama, that's a feature, not a bug. Like Obama, Cole is against a military response to Islamic terror and he is against a civilian court response. In sum, neither of them want the United States to fight on any front, but want us instead to appease and submit to Islamic terror.

Which is nothing new. Obama's entire Department of Justice is of the same stripe:

Attorney General Eric Holder says nine Obama appointees in the Justice Department have represented or advocated for terrorist detainees before joining the Justice Department. But he does not reveal any names beyond the two officials whose work has already been publicly reported. And all the lawyers, according to Holder, are eligible to work on general detainee matters, even if there are specific parts of some cases they cannot be involved in. [Byron York February 2010.]

Which is worse, the DOJ lawyers who defended terrorists pro bono on the basis of shared contempt for America, or the DAG nominee who defends the financiers of terror for a share of their filthy lucre? "Why decide?" says Obama: "Hire 'em all!" So long as they are defenders of al Qaeda, its all good.


Why isn't Congress fighting back?

While Obama's terror-defending lawyers are determined to secure rights and civilian court appearances for Islamic terrorists who should be treated as criminal combatants under military justice, they are equally determined to prevent our 9/11 families from getting their day in court, despite the clear intent of Congress that they should. It is time for Congress to start fighting back. The Supreme Court shamefully failed to review a blatant subversion of congressional intent on a crucial front of the war against terror, but Congress doesn't have to take it lying down.

How about passing a clarification to the domestic tort exception that explicitly renounces Kagan's attempt to gut the clear intent of the law? Just use the Senate hearings on Kagan's nomination (commencing this week) to expose her devastating lies to the Supreme Court and to agitate for a clarification of the law that would allow the families' suit to proceed. Kagan would be routed, and the destruction she has wreaked on our terror war efforts would be repaired, killing two dirty birds with one stone.


UPDATE: Kagan also decieved the courts in 2000 by getting politicized members of the supposedly apolitical American College of Obstetricians and Gynecologists to strike from an ACOG report the actual position of its doctors (that partial birth abortion is never necessary to save the life of a mother) and substitute instead its abortion-friendly opposite (that partial birth abortion is sometimes necessary to save the life of the mother). Shannen Coffin reports that this deception became basis for federal court injunctions against the Partial Birth Abortion ban of 2003 (injunctions that were later struck down by the Supremes).


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Most Flight 93 blogburst posts are about our effort to stop the Park Service from planting the world's largest mosque atop the Flight 93 crash site, but sometimes they are on related topics. What is the relation between the crescent mosque and the suit against Saudi funding of al Qaeda? Both are spearheaded by Tom Burnett Senior (father of Flight 93 hero Tom Burnett Junior), who is lead plaintiff in the families' lawsuit and co-sponsor of our petition to stop the Flight 93 memorial.

It is commonly understood that securing the border would make it EASIER to grant citizenship to our current crop of illegal aliens. Few Americans want to kick long-time illegals out of the country, but people know that if the borders are not secured first then any talk of amnesty will increase the flood of illegal immigration as Mexicans jump across the border to get in on it and to get in line for future amnesties. That will make our illegal alien problem worse, not better, making amnesty a non-starter. Only if the borders are secured first does amnesty become viable.

So why did Obama pretend in his discussion with Senator Kyl that securing the border would make it HARDER to achieve amnesty? Here is Kyl's account of the discussion:

“The problem is, . . . if we secure the border, then you all won’t have any reason to support ‘comprehensive immigration reform.’” [Audible gasps were heard throughout the audience.] Sen. Kyl continued, “In other words, they’re holding it hostage. They don’t want to secure the border unless and until it is combined with ‘comprehensive immigration reform.’”

An Obama spokesman issued a nominal denial that actually confirmed Obama's linking of border security to amnesty, and Senator McCain now adds that Obama also told him that he would not move on border security without amnesty.

Thus we have a conundrum. Obama is saying something extraordinarily impolitic: that he is holding border security hostage to amnesty. Yet this impolitic admission is clearly not true. Our unsecured border is the great obstacle to the passage of any sort of amnesty. The only reason to admit such a damaging falsehood is if the truth is even worse, and indeed, we can be certain that this is the case.

If Obama wanted both border security and amnesty then he would secure the border today, paving the way for some sort of amnesty later in his term. He is adamantly against this path, yet we know that does want half of it: he does want amnesty. The only conclusion is that what he actually wants is amnesty without border security. In other words: his goal is to kill the hostage.

Which is no surprise. Our entire Democrat political class is in favor of amnesty without border security, especially after the last amnesty-without-border-security bill, signed by Ronald Reagan in 1986, worked out so well for them. The '86 amnesty spawned the prospect of future amnesties, which in the absence of border security only added to the flow of illegal immigration (almost entirely Hispanic):



Between 87 and 88 the number of illegal aliens dipped from 5 million to 2 million as 3 million illegals took advantage of the amnesty to become American citizens. The number of illegals was back up to 5 million by 1996 and has grown apace ever since. This has been good for Democrats, who Hispanic voters favor by a wide margin (voting 67 to 31 for Obama over McCain in 2008), so it is not surprising that Democrat politicians are highly motivated both to grant amnesty (so current illegal Mexicans can vote), and to keep the border open (to bring in more future Democrats).

Of course Democrats cannot be honest about this strategy of securing their own power by serving foreign interests. Such treason sits very poorly with vast majority of Americans of both parties, so Obama tried to hide the full maliciousness of his agenda by admitting only half of it: that he is holding border security hostage. It's nice to get that much on him. Just understand the full import. Obama has no intention of swapping the border-security hostage for any amount of concessions. He means to take the concessions AND kill the hostage.


UPDATE: Kyl has issued a supposed walk-back that has exactly the same implication as his initial statement. If anything, it paints Obama in even worse light.

Now Kyl claims that when he said “They are holding [border security] hostage,” he was really paraphrasing Obama's complaint about his own political base. It is THEY who are holding border security hostage to amnesty, and poor Obama is supposedly powerless to oppose this political reality.

This is not a walk-back. It is just an EXPLANATION (patently fraudulent) for WHY Obama is holding border security hostage: he has to in order to appease his base.

Typical Obama buck passing. He never deviates one inch from his own thug agenda, but he constantly dodges and evades just as an expression of his fundamentally dishonest character.

Racism used to be defined (and should be defined) as opposition to people or things because of their racial origins. How the times have changed. From Outside the Beltway:

Former Black Panther Charles Barron, city councilman from Brooklyn, says only racists would ban vuvuzelas. Which he’d never heard of 30 seconds earlier.

Barron's reasoning? IF the vuvuzelas have a black origin, THEN opposition to the vuvuzelas is racist. Nothing about whether the opposition has anything to do with race:

Absolutely it's racist, because if that's something that comes out of our culture, it's in our country South Africa, then we have a right and you have to adopt to tue culture ande the traditions of the country that's hosting the games. Absolutely it's racist. Outrageous. Let 'em blow.

Barron is being jocular, but his definition of racism is dead serious. To oppose anything black-associated or of black origin is racism. You know, the same way opposing anything white people do is racist. Hasn't that been the Black Panther position since the 60's?

Apparently the most racist ban is on shooting pistols in the air on New Year's Eve. It's racist against Mestizos, since they are the ones who do it. And it's racist against whites, because whites invented the pistol.

Of course opposition to the vuvuzela has nothing to do with race. The idiotic noisemakers are literally deafening:

The researchers said the average sound exposure during the near two hours was 100.5 decibels and peaked at 144.2 decibels. National standards for occupational noise require hearing protection for workers exposed to 85 decibels and above.

For comparison, a circular saw produces 90-100 decibels, jackhammer produces 112, and a jet engine at 100 feet produces a sound pressure of 140 decibels.


Similarity to the Islamic definition of blasphemy

In Islam, criticism of any orthodox Islamic doctrine is interpreted as criticism of Muhammad and is charged as blasphemy (which according to Sharia law is to be punished by death). Makes for an interesting parallel. Criticism of anything Muslim is blasphemy. Criticism of anything black is racism.

Is ex-Panther Barron a Muslim? He doesn't say, but he certainly has many Islamic associates. Black Panthers were Black Muslims and Barron (along with other semi-hidden Muslims like William "Abu Zayd" Ayers) is one of the organizers of the Hamas-supporting Gaza flotilla . In any case, Barron acts like a Muslim, viewing all criticism of his side as essentially criminal. Note the confidence with which Barron asserts his perverted definition of racism. The blatant double standard comes out joyously, even innocently. To him, it is perfectly logical:



This is the confidence of Islam, with its unabashed double standards. Islam is to reign supreme. To even criticize it is a crime. Similarly now for anything black, as we have seen for the last year and a half. If you oppose Obama's socialist agenda, or even the vuvuzela, you're a racist.


UPDATE: eaglewingz over at FA offers the right example:

If slavery came out of black/african culture, then opposing slavery would be racist. Makes perfect sense.