Writings and observations


I’m having a hard time understanding the Republican Party that I joined back in the early 1960s. At that time, our main foreign adversary was the Soviet Union. It was bent on destruction of the American way of life. We engaged in an ugly decades-long struggle with the USSR, fighting proxy wars around the globe. Republicans were in the forefront of the fray, denouncing Russian imperialism while providing the war material to combat Russia’s ambitions. No more.

Many of the current Republican Members of Congress don’t seem to be bothered by the fact that Russia meddled in our elections last year, that Russian media regularly spews out fake news blaming the U.S. for practically all of the world’s ills, that Russia has gobbled up Crimea and is threatening our allies in Europe, that Russia is purposely bombing hospitals and U.S. allies in Syria, that Russia is likely providing arms to the Taliban much like it provided arms to the North Vietnamese to kill American troops in the 1960s, and that Russia is doing many other things to weaken and discredit the United States, both at home and abroad.

They don’t appear to be concerned that our President is seemingly infatuated with Vladimir Putin and cannot bring himself to speak ill of this vile person who has pillaged Russia and used deadly force to silence those who dare speak out against him. They seem to have no qualms about the fact that the President fired the FBI chief just as he was planning to ramp up the investigation of Russia’s efforts to disrupt America’s 2016 elections. And, the day after doing so, the President had a chummy meeting with Russian Foreign Minister Sergei Lavrov in the White House–a meeting that Putin had demanded in a recent phone call with the President. It was a nice propaganda coup for Putin that was memorialized by a Russian photographer because American journalists were excluded.

The Republican Party that I remember from years ago would be demanding a full-throated investigation of these activities because they pose a substantial threat to our country. The most some Republicans can muster is a shrug of their shoulders and comments such as, “well its history, let’s just move on.” Has the republican Party turned into such a hyper-partisan entity that it is not willing to get to the bottom of this alarming mess? Seems so.

We can’t rely on the Justice Department to act in an even-handed manner because the AG, after having recused himself from the Russian investigation, took part in getting rid of the FBI Director. It is essential that an independent commission, like the 9-11 Commission, or a special prosecutor be appointed to conduct a thorough investigation into what the Russians did, how they did it, and whether there was any involvement by U.S. citizens.

We must learn all we can about Russia’s cyber capabilities and how to combat them. The Congressional committees do not have the resources or staff to do an adequate job. If we let the Russians get away with their blatant interference with America’s sacred election process, they will do it again. Next time the target may be the Republicans, unless they continue their strange laissez-faire attitude toward Russian aggression.

We need to demand that the Idaho Congressional delegation stand up for America, rather than standing idly by while Putin tries to tear down the American dream.

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The first sign of trouble was not particularly dramatic, but it got my attention.

Last November, when the Supreme Court was hearing cases in Twin Falls, I felt a pain in my left side just as we started hearing our second case. It felt like a heavy pressure was being exerted below my rib cage. I thought it might be a heart problem, which prompted a visit to a doc-in-the-box. The doctor assured me it was not a heart issue but could not pinpoint the cause of the pain. I left with an antibiotic prescription, but the pain went away before I could take one.

In early December, when the Court was hearing cases in Boise, I had a recurrence of the pain. I visited my family doctor, who ordered an MRI to see if it might be an ulcer. When the result came back, it looked like there was some sort of mass on my pancreas, so I went in for a CT scan to further investigate. The scan disclosed a tumor on the pancreas, so I went in for an endoscopic ultrasound. The ultrasound probe goes down into the stomach and sidles right up close to the pancreas to get some really good pictures. Biopsy samples disclosed that the tumor was malignant. Since then it has been surgically removed and I am currently on chemotherapy.

All of the medical folks have said it was good the cancer was caught early. We all know that early detection of almost any illness is important to a favorable patient outcome. Luckily, I had good insurance coverage under the State’s plan – the same plan that protects the health of Idaho legislators and executive branch employees. Without the three relatively expensive exploratory scans paid for by the insurance company, I would have been out of luck.

I think of the 78,000 Idahoans in the Medicaid gap and wonder about their fate when they start having suspicious symptoms. I suspect they just have to suck it up and take a pain reliever. No costly tests for them to find the cause of puzzling symptoms.

Most of these folks work hard to take care of their families but make too much to get Medicaid coverage and too little to get subsidies under the Affordable Care Act (ACA). Had Idaho opted to take the many millions of dollars available to expand its Medicaid program, like 31 other states have done, those people could have a chance for a good outcome.

It seems to me that the time has come for Idaho to join the other 31 states and get some of the life sustaining funds that we have previously allowed to go to other states.

It is not clear whether the Affordable Care Act will be amended, repealed or remain in place. But, based on what has occurred in the debate thus far this year, it does not appear that Congress will repeal the Medicaid expansion that was part of the ACA. Idaho should now demand its share of the Medicaid expansion money. Continued refusal to take the money will perpetuate the unattended medical problems suffered by Medicaid gap families.

This is a moral issue, not a political issue. We should not require that people dispose of their assets to qualify for Medicaid or, worse, that they run for public office in order to get good health insurance.

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It appears that the rules of engagement in Syria and Iraq have been loosened in the last couple of months. That is, air and artillery strikes can be conducted with less consideration of the possibility of harm to civilians and allied forces.

Military spokesmen have been less than forthcoming as to whether the increasing number of civilian casualties and friendly fire incidents are related to a change in policy but the results indicate there has been a loosening of the rules.

According to Airwars.org, a group that monitors civilian deaths caused by airstrikes in Iraq and Syria, over 1,000 civilian deaths were alleged to have resulted from coalition airstrikes during the month of March, a dramatic increase over previous months. This included over 200 deaths in the City of Mosul during the latter part of the month. Airwars said, “These reported casualty levels are comparable with some of the worst periods of Russian activity in Syria,” where the Russians have deliberately bombed civilian targets. Additionally, 18 Syrian fighters allied with the U.S. were killed by our airstrikes in Syria on April 11, a “friendly fire” incident.

Almost 50 years ago (1968-69), I had experience with both loose and tight engagement rules.

For seven months, I led a four-person team whose job was to clear all U.S. air and artillery strikes in Tay Ninh Province, Vietnam. We lived among the South Vietnamese soldiers (ARVNs) and worked with them around the clock in province headquarters. When U.S. forces wanted to shoot artillery or drop bombs, they called us for permission. The northern part of the province, which bordered Cambodia on the north and west, was largely triple-canopy jungle. It was a “free fire” zone and the rules only required that U.S. firepower not endanger U.S. or ARVN troops. The southern part of the province was largely open farm ground with scattered civilian population. To fire in that area, tighter rules required that we also obtain approval from our ARVN counterparts to protect civilians from harm. The tighter rules in the populated area were appropriate, even though we were not able on occasion to give permission to fire.

A complicating factor in the use of U.S. firepower in Iraq and Syria is that often airstrikes are called in, not by U.S. personnel, but by local forces. According to press reports, that was the case with both the Mosul airstrikes and the Syrian friendly fire incident. Recent experience in the region shows that U.S. firepower can be misdirected by locals against rival religious or tribal targets.

The danger is inherent in the battle for Mosul where most of the civilians at risk are Sunnis. Whether true or not, they may believe that a lack of care for civilians is because of ill will, either by the U.S. or by unfriendly Iraqi forces. This is detrimental to the long-term goals of the U.S. in the region.

We must win the hearts and minds of the local people in order to succeed and won’t be able to do it if civilians believe that we are indiscriminately killing their fellow citizens, much like the Russian and Assad forces do. Further, these conflicts are not being fought in isolation. With present-day communications, the world is watching and many young people on the fence in the region and elsewhere are deciding whether to side with us or our adversaries. If we show them we don’t care about the lives of civilians in those countries, they won’t likely be siding with us.

In order to protect innocent civilians and serve our national interests, we should not loosen up the rules of engagement. And, U.S. personnel should act as a check on decisions by local forces to call in U.S. firepower. If our bombs are being dropped, our personnel should be a part of the approval process.

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There has been so much heated public discussion about climate change that it is hard for a person without scientific training to make heads or tails of the issue. Sure, some of the science is not subject to dispute. It is certain that burning fossil fuels, like coal, releases carbon dioxide into the atmosphere. A simple lab test will show that increasing the amount of a greenhouse gas in an air sample will increase the heat holding capacity of the sample. And, we know that 2016 was the Earth’s hottest year on record, eclipsing the 2015 record, which beat the 2014 record. So, our planet is getting warmer, but is human activity contributing to the warm-up? That is the real question.

Those who believe that human activity is warming the atmosphere point out that ninety-seven percent (97%) of climate scientists say human-caused climate change is happening. However, the skeptics point out that the other three percent (3%) disagree. The believers say that virtually all of the world leaders support their position. The skeptics counter that two important world leaders, Donald Trump and Vladimir Putin, agree with them. It makes it hard for a person to decide which side is right.

The skeptics argue that global warming is the result of natural causes like volcanoes and forest fires. The scientific community says that natural causes do produce some greenhouse gasses but that the dramatic increase in carbon dioxide releases from human industry in recent decades has driven the warming trend. They say that billions of tons of carbon dioxide are released into Earth’s atmosphere each year from fossil fuels and industry, including about 35 billion tons in 2015.

The 97% of scientists say the oceans are warming, which results in more violent weather; that the oceans are becoming more acidic, which endangers fish habitat and seafood production; that polar ice and glaciers are melting at an alarming rate, which will result in rising ocean levels, which will endanger coastal cities; that changing weather patterns will cause widespread drought and consequent mass starvation and population migration in underdeveloped regions of the world; that military planners consider climate change as a serious threat to national security and global order because of conflict over scarcer water and foodstuffs; that forested areas will suffer more destructive fires; that these climate change effects are increasing and irreversible; and that immediate action is necessary to reduce greenhouse gas emissions to keep things from getting even worse. The 3% of scientists say this would all happen anyway so just learn to adjust.

So, what does a reasonable person do? Like any other problem, it seems best to rely on the people who are knowledgeable about the issue. I would not ask a financial advisor to diagnose an illness or take my car to an ice cream shop for repairs.

And, I would put more faith in a consensus opinion of experts, rather than a minority position. If I had a serious illness and 97% of the specialists said I would surely die without undergoing a certain treatment, while 3% dissented, I think any reasonable person would go with the majority. Even if I discounted the opinions of half or two-thirds of the 97%, I would not go with the 3% because the stakes are too high. If 97% of the fire officials in the state said my house would burn down if I stored flammable liquids under the stove, although 3% said it was not a problem, I’d be inclined to remove the liquids. While this is not a particularly scientific approach it seems to make common sense. If the skeptics are wrong, the result is catastrophic. Can we afford to take that chance?

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The Idaho Legislature’s efforts to improve our foster care system may be a bright spot of the 2017 legislative session. I say “may be” because a great deal of effective follow-up by the Legislature and Department of Health and Welfare will be necessary to get the job done right.

For years the foster care system has suffered from underfunding, understaffing, too much bureaucracy, not enough coordination with stakeholders, and too little attention to how the system is working and what can be done to improve outcomes for foster children.

One judge told me that there are dedicated workers on the front lines, but they are often prevented from trying new approaches by bureaucratic red tape from above – the old refrain that we have always done it this way, so let’s keep doing it this way – even if there is no evidence to show that the old way is the best way.

Following the 2016 legislative session, the Legislature’s Office of Performance Evaluations began a comprehensive review of the foster care system to determine problems and possible remedies. Its report issued this February disclosed, among other things, a worsening shortage of foster parents, insufficient support and services being provided to foster parents, insufficient staff to perform the needed services, strained relationships with stakeholders, and no system-level accountability for child welfare outcomes.

The Office made a number of recommendations to address these deficiencies. It was essential to better compensate foster parents and to give them more say in order to be able to provide the best outcome for their foster kids. More staff was needed to support and serve foster parents and children.

The Legislature provided a substantial boost in funding this session for the foster care program–funding for eight additional staff and a twenty percent increase in compensation for foster parents. Senator Abby Lee of Fruitland played a significant part in getting this funding increase through a committee vote.

In addition, the Legislature approved House Concurrent Resolution 19, which authorizes an interim legislative committee “to undertake and complete a study of the foster care system in Idaho.” The committee will be co-chaired by Senator Lee and Representative Chrisy Perry of Nampa. Both have worked hard on the foster care issue.

While increased funding will certainly help, the findings and recommendations of the interim committee will be critical in determining the future effectiveness of Idaho’s foster care system.

It must be outcome oriented so that foster children are able to thrive. Foster parents must be listened to and properly supported. Social workers and other staff must have manageable workloads and given some flexibility in carrying out their work. More attention needs to be given as to what can be done for older children who have been in and out of the system numerous times, rather than simply warehousing them. The hard work is just beginning and it is incumbent on anyone interested in a better foster care system to keep informed on the interim committee’s work and to provide their input to the committee. This is Idaho’s chance to get it right.

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George Washington warned in his Farewell Address of the dangers posed to our country by political partisanship. He feared that parties would promote their own fortunes over those of the country. As he put it, they might “put in the place of the delegated will of the Nation, the will of the party.”

We may well be witnessing that very danger today.

The United States was the target of cyber aggression at the hands of Russia’s Putin regime last year. Russian hackers attacked the very heart of our democracy, trying to disrupt and influence our electoral process. Whether they were successful is beside the point. All Americans should be outraged by this intrusion into our domestic affairs.

We should demand a thorough investigation into everything the Russians did, how they did it, what we can do to protect against further cyber attacks, and what additional punitive measures should be taken against the Putin regime.

Congressional investigations might ordinarily suffice to explore these issues, but this is not an ordinary situation because partisanship has become entwined in the imbroglio. Intelligence officials have found there were numbers of contacts between the Russians and past and present members of the Trump entities. This has resulted in somewhat of a circle-the-wagons attitude on the part of some in Congress, particularly those in positions to oversee such a vitally important undertaking.

A partisan inquiry simply won’t suffice to get all of the facts on the table and its conclusions would likely not be accepted by a majority of Americans. It is essential that we find out who was involved on the Russian side, whether they had help of any nature from Americans, and the channels through which information was passed. The Russian Government under Putin is the major global threat to our country.

The Russians cannot match our military capabilities but they have substantial cyber capabilities and the capacity to wreak great havoc on our technology-dependent nation. We can’t let that happen again.

In order to do a credible investigation of the Russian attack on America, it is essential to place the responsibility in the hands of an independent, bipartisan group of respected Americans. We have many people of this stripe in our country. A half-hearted inquiry conducted by many who have a partisan dog in the fight won’t produce honest answers to the critical questions facing us, nor will it give the American public confidence in the findings.

We must demand that our Congressional representatives stand up for America and support a thorough and independent investigation into Russia’s attack on the U.S. political system. Tell them in no uncertain terms that the interests of their country always take priority over the narrow interests of any political party.

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It is time for the Legislature to repeal the faith-healing exemption to Idaho’s statute prohibiting the injury of children.

Section 18-1501 of the Idaho Code penalizes conduct by “any person” that is likely to endanger the person or health of a child. This applies to parents but the statute has qualifying language that limits violations to rather egregious conduct. It was carefully crafted to limit governmental intrusion into the family setting.

However, the statute includes an exemption that has allowed some parents to refuse to provide readily available health care to their children, resulting in needless suffering and death. The exemption says that the “practice of a parent or guardian who chooses for his child treatment by prayer or spiritual means alone shall not for that reason alone be construed to have violated the duty of care to such child.” This language should be eliminated in order to protect some our most helpless and vulnerable citizens.

Adults can decide for themselves on healthcare matters. If they decide to forego medical intervention for themselves for religious reasons, that is their prerogative. The state has an interest in safeguarding the health and safety of minors who cannot speak for themselves. Our laws have numerous protections for children without religious exemptions – marital age, child labor, ability to contract, and the like. In my estimation, the right to have basic life-saving healthcare trumps those protections.

A courageous young woman, Linda Martin, recently spoke out in a Statesman ad to urge the repeal of the faith-healing exemption. As a former member of a group that denies basic medical care to its youngest members, she spoke with eloquence and authority about the injury inflicted on sick children in the group. She closed with this statement: “This is not a freedom of religion issue: this is a right to live issue.” Amen.

Since at least the 1980s, when I served as Idaho Attorney General, the Legislature has passed numerous laws intended to support the right to life by using the power of the government to require women to carry a fetus to term. To my knowledge, none of those measures contained a religious exemption.

The question arises as to whether the right to life of some children in our great state ceases upon birth. It is time for the Legislature to stand up for our children and to require that faith-healing parents provide basic healthcare to their children.

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Please welcome our new columnist – Jim Jones, former Idaho Supreme Court chief justice and a former Idaho attorney general.

Supreme Court nominee Neil Gorsuch expressed what many judges around the country were likely thinking when he commented that the President’s criticism of judges and courts was “demoralizing” and “disheartening” to the judiciary.

Whether such comments were rehearsed or spontaneous, they were on the mark. Not that judges have tender feelings – they often are criticized by unsophisticated litigants who lose in court. The disparaging criticism here came from the chief executive of our country, a person who has personally resorted to the courts of this country thousands of times to seek redress for perceived grievances.

Our system of justice is unrivaled in the world. One reason the United States became such an economic powerhouse is that we have a court system that is honest and even-handed. Litigants know that they will be listened to and treated fairly. Not every judge is perfect but the overwhelming majority are dedicated to the rule of law, both in state and federal courts.

The U.S. District Judge in Seattle who ruled first on the travel ban case was not a “so-called” judge. He was appointed by former President George Bush and confirmed by the U.S. Senate. The Ninth Circuit Court panel that heard the case on appeal acted as an appellate court should – it reviewed the record carefully and asked searching questions of both sides. The hearing was not “disgraceful” but conducted with fairness and dignity. The problem for the Government was that it provided no factual basis to support the ban, relying instead on the mantra that its decision could not be reviewed.

That argument might well prevail in Russia, where Putin gets everything he wants from his courts. It does not work so well in a country where wise founding fathers set up a system of checks and balances to keep government from overreaching. As part of that system, three co-equal branches of government were established – the executive, the legislative, and the judiciary. It is the responsibility of the judicial branch to call the balls and strikes when executive action is challenged as being in violation of statutes or the Constitution. This has occurred many times over the years in previous administrations.

It is fair game for a president or governor to criticize a court decision. But lambasting judges or courts for the decision is hurtful to the integrity of the judicial branch. Judges are ethically limited from speaking out to explain or justify a decision or to defend themselves against accusations made by disgruntled litigants. Unfair attacks on judges or the court system as a whole undermine public confidence in the courts.

I served 12 years on the Idaho Supreme Court and was impressed with the work of judges throughout the State–magistrate judges, district judges and appellate judges. I can’t recall any instance where a colleague made a decision based on ideology or personal beliefs. I can recall numbers of times when each of us decided a case contrary to our personal beliefs in order to be true to the law. That happens every day throughout the country. Our legal system is not “broken,’ or “disgraceful,”or “politically motivated.” Our court system is dedicated to the rule of law and will remain so unless it is eroded away by uninformed and unfair charges.

Three of the members of Idaho’s Congressional Delegation are lawyers and members of the Idaho State Bar. They should step forward to defend the integrity of the courts and judges.

Jim Jones served as a Justice of the Idaho Supreme Court from 2005 through 2016.

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