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Posts published in “Jones”

These children have a right to life

jones

In counting my blessings at Thanksgiving, good health was at the top of my list.

In January I learned I had pancreatic cancer, but it is now in remission thanks to the talented doctors at the Mountain States Tumor Institute. Dr. Akshay Gupta diagnosed it, Dr. Joshua Barton skillfully removed the cancerous tissue, and Dr. Dan Zuckerman finished off the cancer with the help of the MSTI staff. We are lucky to have such highly skilled medical practitioners in our fair State.

Unfortunately, some of our most vulnerable citizens are not able to share in the blessing of good medical care.

Young children of the Followers of Christ, mostly in Canyon County, are denied necessary medical treatment because of their parents’ religious practices. Idaho law exempts faith-healing parents from two statutes prohibiting neglect or endangerment of their children. Section 18-1501 of the Idaho Code prohibits conduct that is likely to endanger the life or health of a child. Section 18-401 prohibits the denial of necessary medical care to children.

However, there is an exemption in both statutes that has allowed these parents to refuse to provide readily available medical 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 of such child.” This awkward language should be eliminated from both statutes in order to protect the helpless children of faith healers.

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, however, in safeguarding the health and safety of minor children, who cannot decide for themselves. Our laws have numerous protections for children that do not contain religious exemptions - marital age, child labor, ability to contract, and the like. The right to have basic life-saving healthcare trumps all of those protections.

Article I, section 4 of the Idaho Constitution guarantees religious liberty for Idaho citizens. However, it mandates a strict separation of church and state, more so than the U.S. Constitution.

Among other things, it flatly states that no preference shall “be given by law to any religious denomination or mode of worship.” The statutes purporting to exempt faith-healing parents from child-protection laws certainly appear to violate this constitutional provision. The great majority of Idaho citizens who do not advocate or practice faith healing are subject to criminal penalties under Idaho Code sections 18-1501 and 18-401 for endangering the health of their children. Yet, those same statutes provide a specific legal preference for faith-healing parents by giving them the right to deprive their children of medical care.

During the last several decades, the Legislature has passed numerous statutes intended to support the right to life by using the power of the government to require women to carry a fetus to term. None of those measures contained a religious exemption. The question arises as to whether the right to life of some children in Idaho ceases upon birth.

It is time for the Legislature to stand up for our children and to require faith-healing parents to provide basic healthcare to their children. Tell legislators it is morally and legally wrong to allow parents to deprive their children of life-saving medical care.
 

Enough sucking up to Putin

joneslogo1

During the President’s recent encounter with Vladimir Putin in Vietnam, he says he asked Putin whether Russia had meddled in the U.S. elections in 2016. He relates that Putin “is very, very strong in the fact that he didn’t do it. You have president Putin very strongly, vehemently, says he has nothing to do with that.”

The President also told reporters that Putin “said he absolutely did not meddle in our election” and that “I really believe that when he tells me that, he means it.”

My Vietnam experience was quite a bit different than the President’s. When I was in Vietnam in 1968-69, I represented defendants in about a dozen courts martial. My real job was coordinating artillery fire, but when the defendants learned I was a bono fide lawyer they often requested me as defense counsel. It did not take long to learn that accused individuals often lie about their guilt of wrongdoing.

And, it is not unusual for a guilty person to “vehemently” deny something. When dealing with an accomplished liar, like Putin, one should exercise great caution in believing anything he says.

Remember, President Putin denied having any involvement in the take-over of Crimea, the insurgency in Ukraine, and the downing of the Malaysian airliner over Ukraine. All were gigantic whoppers. This former KGB officer is a master of deceit. Anyone who doubts it should read the meticulously documented book by Karen Dawisha, Putin’s Kleptocracy. It is hard to fathom the evil and dishonesty of this man.

It is also unwise to trust the protestations of a man who has been bent on challenging U.S. interests at practically every turn. He has worked very hard to break up a number of important western alliances, including NATO and the European Union. Mitt Romney correctly called Putin’s Russia our “number one geopolitical foe.” During my Vietnam service, I would not have been much inclined to trust the word of the Viet Cong and there is no reason to trust Putin. And, let’s not forget that Russia provided the sophisticated anti-aircraft weapons that shot down John McCain and so many other American pilots.

It is difficult to understand why one would place faith in the word of a known adversary, like Putin, that he did not meddle in our elections when our intelligence people caught him dead to rights. He has also done so in the elections of many of our allies. British Prime Minister Theresa May had the guts to call Putin out for spreading fake news and interfering in that country’s elections. She told Putin that Great Britain would “do what is necessary to protect ourselves, and work with our allies to do likewise.” I’m hoping she’ll help protect us because it does not appear we are doing much to protect ourselves.

The President says he needs to be nice to Putin to gain his help on various issues. Sucking up with an adversary in hopes of gaining favor is not a winning strategy. It is hard to picture Ronald Reagan meekly telling Gorbachev that, while your Berlin wall is attractive and quite effective in imprisoning millions of East Germans, wouldn’t you please consider some slight alterations? Instead, Reagan forcefully said, “Mr. Gorbachev, tear down this wall.” President Reagan’s strength carried the day and the wall came down. We need that same kind of strength in dealing with Putin. Why ask Putin whether he did something we have proof that he did. Let’s follow the lead of PM May--tell Putin we have the goods on him and that he will rue the day if doesn’t bring it to a screeching halt.

Rather than disputing the indisputable, the U.S. should be vigorously building its cyber defenses and developing a tough offensive capability. We are at a juncture in the electronic era much like we found ourselves in during the infancy of the rocket age. The Russians caught our attention with the launch of the Sputnik, demonstrating they had the lead in a technology with military applications. We had to up our game in that arena.

Now, the Russians have shown their expertise in the offensive use of cyber systems and it is incumbent on this country to take steps to counter Russian cyber aggression, not to deny it.
 

Thanks for your service

jones

When I was getting ready in August of 1969 to return home from my tour of duty in Vietnam, I bought some civilian clothes in Saigon. Word was that many people in the U.S. took unkindly to persons in military uniform.

When I mustered out at the Oakland Army Base, I tossed my fatigues and boots into a trash can, put on my civvies, and caught a plane to Twin Falls. Although I don’t recall anyone being hostile because of my Vietnam service, many returning vets did experience hostility. Things have changed.

I’m glad that people appreciate the service of men and women in uniform nowadays. It means a lot when you let them know you are thankful for their service. A couple of years ago, a highly respected judge from out of state who had served as a Marine at Khe Sanh, but rarely talked about it, told me, “Welcome home and thanks for your service.” I was genuinely touched.

But we should do more than just thanking veterans and active duty personnel for serving their country.

While we generally provide good medical treatment for their obvious physical injuries, the country can and should do much more to treat their less obvious injuries, such as PTSD, exposure to toxic substances, and the like. The high rates of suicide, substance abuse, and related problems are clear indicators that we are not living up to our responsibility to provide veterans and active duty personnel the mental health support and treatment they need and deserve. War is, as they say, hell and it takes a real toll on the psychological wellbeing of many of them.

We also owe it to the people who protect our nation to see that they receive proper treatment for ailments caused by exposure to toxic substances. After the Vietnam war, it was maddening to see the government deny treatment to returning veterans who suffered serious illnesses as a result of exposure to Agent Orange. Veterans of the first Gulf War and the war in Iraq received similar shabby treatment when they returned with strange symptoms related to exposure to dangerous substances. They deserved better.

The recent deaths of four servicemen in Niger points to another problem. Most Americans had little idea the U.S. had troops in harm’s way there. I believe that is partly because only a tiny minority of the population is exposed to serving this country in dangerous places. It is easy for the rest of us to put it out of our minds. There is not a culture anymore that expects everyone of military age to do some type of service to this great country. It hurts me to hear about service personnel doing 4, 5, and 6 tours of duty in Iraq and Afghanistan. Some may thrive on it, but I’m sure it is a strain on many others, as well as their families.

When discussion started after Vietnam about an all-volunteer military, I had some misgivings. The idea of having greater professionalism and better pay made sense, but it seemed to me that we were going to get away from the idea that all citizens should have some skin in the game - that all young people should have the opportunity to serve their country in a meaningful way. When everyone is exposed to serving the country, I think we pay more attention to what the country is doing overseas. It certainly worked that way in the Vietnam era.

Now, the country comfortably goes about its normal life while a small minority of dedicated citizens regularly faces danger in foreign places, largely unacknowledged by the country until some of them are shipped home in body bags. Instead of just thanking our veterans and service personnel, maybe we, as a country, should start thinking about how we can all help to serve the country.
 

To be proud of

jones

On November 1, the President claimed that the criminal justice system in the United States is “a joke” and “a laughingstock” for the way suspects are prosecuted. He suggested the New York terror suspect could be sent to the military prison at Guantanamo Bay for quick and strong justice. He is wrong on all counts.

It is not clear who considers our criminal justice system to be a laughingstock. Perhaps Vladimir Putin thinks it is stupid to provide criminal defendants a fair trial. Russian prosecutors know they are required to produce the result Putin wants, if they know what’s good for them. The Russian system does not produce justice.

The U.S. justice system, on the other hand, is the envy of the civilized world. It respects the rights of those charged with crimes, while producing just results. It is not a perfect system, but one of the best and most respected on Earth. After the fall of the Soviet Union, Eastern European countries that had been under the Soviet yoke sought assistance from American lawyers and judges to implement justice systems like ours.

One reason the United States became an economic powerhouse is because we have a court system that is widely recognized as being honest and even-handed. Americans and foreigners alike know they will receive fair treatment in the system, which encourages them to make investments in our economy without fear of confiscation or false criminal charges.

As far as the military commissions at Guantanamo being able to produce quick and strong justice, don’t hold your breath. The commissions are largely dysfunctional, having produced only eight convictions in fifteen years. Three of those convictions were overturned.

General Charles Krulak, a retired Marine Corps Commandant, said the President “should never consider” sending the New York suspect to Guantanamo. Krulak observed that “Federal courts have a track record of fairly and expeditiously dealing with terrorism suspects, having handled more than six hundred cases since 9/11. The criminal justice system has enabled our government to gather timely, actionable intelligence to drive our counterintelligence efforts.”

For sake of comparison, the person who set off bombs in the Chelsea area in New York last year was just convicted of terrorism charges in federal court in October. On the other hand, the person who masterminded the bombing of the USS Cole seventeen years ago has been awaiting trial for ten years by a military commission in Guantanamo. Rather than dispensing justice to the terrorist, the military judge has sentenced the Brigadier General in charge of the Gitmo defense teams to 21 days of confinement. That comes close to the laughingstock category.

It is fair game for members of the executive and legislative branches of our government to criticize individual court decisions or suggest ways to improve the justice system. However, it is wrong to indict the entire system by falsely claiming it to be a joke or laughingstock. That demeans a system that people around the world have long respected and tried to emulate. If the leader of the free world calls his own court system a joke, what are people in other nations to think? Doesn’t it demean our nation as a whole? I’m in agreement with the observation made by Neil Gorsuch, after he was nominated to the Supreme Court but before his confirmation, that such criticism of courts and judges is “demoralizing” and “disheartening.”

A win against their customers

jones

With the help of Idaho’s two Senators, the U.S. Senate voted on October 24 to kill a rule allowing mistreated bank customers to band together to seek redress in court. The vote allows banks to force their customers into often one-sided arbitration of grievances against the banks.

Forced arbitration clauses prevent bank customers from bringing group lawsuits to recover for improper banking practices. And, they deprive bank customers of resort to the judicial system where they can get a fair shake.

The Consumer Financial Protection Bureau (CFPB) issued a rule in July that prevented financial institutions from requiring customers to arbitrate disputes with their banks, rather than going to court. Mandatory arbitration clauses are written into the fine print of hundreds of millions of lengthy consumer financial service contracts. The CFPB rule would have allowed consumers to join together to sue banks for their misconduct. It was good public policy and supported by the polling data. An American Future Fund poll showed 67% support for the rule, including 64% of Republicans polled.

In announcing the rule, CFPB Director Richard Cordray noted that “when Wells Fargo opened millions of deposit and credit card accounts without the knowledge or consent of customers, arbitration clauses in existing account contracts blocked their customers from bringing group lawsuits for the unauthorized account openings.” The rule was designed to protect bank customers from this type of misconduct in the future, and to give them a realistic chance of recovering their damages if it does happen.

It is impractical for an individual to arbitrate a small dollar dispute with his or her bank. If the bank has manipulated the processing of checks on an account to substantially increase the overdraft fees, resulting in an excessive charge of several hundred dollars, the cost and time consumed in arbitration is practically prohibitive. The banks know this and that is why they slip arbitration clauses into their mind-numbing consumer contracts. And, that is why very few people arbitrate their banking disputes.

If mistreated customers can aggregate their claims and join together to sue in court for banker misconduct, they have a substantially greater chance of being made whole for their losses. Going after claims of several hundred dollars for each of thousands of cheated customers makes a joint recovery feasible. Court proceeding are not weighted in favor of an economically powerful party, like arbitration can be, and those cheated can have the benefit of trial by jury.

Arbitration is a good alternative for resolving commercial disputes where large amounts are at issue and the parties stand on relatively equal ground. It is not a reasonable alternative where a weaker party is unwittingly forced into it and only a small dollar amount is involved. The more powerful parties in such disputes know that many of the arbitrators are inclined in their favor in hopes of getting repeat business. The weak party with a single small claim will not provide repeat business.

The banks lobbied hard for their win against consumers on this issue and succeeded in making it difficult to discourage mistreatment of bank customers. The vote to repeal the CFPB rule was 50-50 in the Senate, with the Vice President breaking the tie. The U.S. House of Representatives had already voted for repeal on July 25, hardly allowing the ink to dry on the July 10 rule. Both of our Congressmen voted for repeal. Too bad the bank customers did not have a lobbying arm working for them.

Drug company greed kills

jones

CBS’ 60 Minutes and the Washington Post are to be commended for derailing the President’s appointment of a shill for the drug industry as the nation’s drug czar.

Rep. Tom Marino (R-Pa.) withdrew his nomination when it was revealed that he had engineered passage of a bill in 2016 that hamstrung the ability of the Drug Enforcement Administration (DEA) to stop drug sales fueling the opioid epidemic. He had raked in about $100,000 from the pharmaceutical industry for his efforts. While a swamp creature bit the dust, there is more to the story of drug company greed.

When I was Idaho Attorney General in the late 1980s, it was known that hydrocodone and oxycodone were effective pain relievers, but highly addictive. At that time, the use of these opioids was generally limited to severe pain cases because of their addictive properties. However, in the 1990s some opioid makers saw gold in them thar hills and started aggressively marketing opioids, such as Purdue Pharma’s Oxycontin, as a general remedy for pain. Endo Pharmaceuticals and Johnson & Johnson joined in to peddle their opioids for wide use.

Advertisements in reputable medical journals hyped the use of opioid products as safe and effective pain relievers. Pharmaceutical companies reached into continuing education courses for doctors and medical school curricula to promote the widespread use of opioids. Attractive drug representatives assured doctors there was no need to be concerned that patients would become addicted to opioids. Lobbyists were employed to smooth the way for marketing these addictive painkillers without regulatory interference.

The drug companies obviously knew that these products were addictive and that many people who used them would become hooked, but the bright side was massive profits. The chances of being criminally prosecuted were remote, so they went full steam ahead.

As disclosed in the CBS/Post report, the major drug distributors got in on the act, making massive sales of opioid pills to pill-mill pharmacies that were obviously selling them to drug addicts. The DEA took note and began targeting suspicious drug shipments, which led to passage of the bill neutering the DEA’s enforcement effort. Rep. Marino was also able in the process to get rid of the DEA agent who was trying to stop the distributors’ drug trafficking. This occurred at the height of the opioid crisis when tens of thousands of Americans were dying of opioid overdoses each year (almost 65,000 in 2016). Nevertheless, both houses of Congress passed the Marino bill last year with nary a whimper. Talk about Congress being asleep at the switch. Perhaps some of the slumbers were aided by the millions of dollars of drug industry money pouring into congressional campaign coffers.

It seems to me that companies which sell a product, knowing that it is being abused and that it is killing people, should have to answer under the criminal law.

U.S. Attorney General Jeff Sessions wants to prosecute low-level drug dealers and subject them to mandatory minimum sentences. Shouldn’t he focus some enforcement effort against high-level drug company executives whose greed drives them to carelessly pedal addiction and death to the public?

The Idaho congressional delegation can help by working to overturn the 2016 legislation and demanding that the Justice Department go after the corporate drug pushers.

Is taking a knee disrespectful?

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Many life or death problems face America today, including possible nuclear war on the Korean Peninsula, clean-up from three massively destructive hurricanes, a horrendous mass shooting in Las Vegas, horrible and deadly wild fires in California, a break with the rest of the world’s powers over the Iran nuclear deal, and whether NFL players disrespect American service personnel when they take a knee during the national anthem.

During this time of crisis, much news coverage has been devoted to the last issue.

Being a war veteran, I believe I have the credentials to give an opinion on that issue. That is, I voluntarily entered the U.S. Army in 1967, despite leg injuries that would have exempted me from the draft. When the Army did not honor my request to serve in Southeast Asia, I requested a transfer to Vietnam. Although I had a law degree, I chose to serve in an artillery unit. I served 407 days in Vietnam’s Tay Ninh Province, most of it living with South Vietnamese soldiers. I did all of this to honor and respect American values.

One of the most sacred American values is the right to protest what we Americans regard as injustice. Our nation was founded in protest. Many Europeans came to America, having gotten in hot water in their homelands for protesting governmental or religious practices. Americans fought the Revolutionary War to protest British governmental oppression. Ever since, we have taken it for granted that we can protest practically anything the government does, so long as we do it peacefully. My service in the military was partly motivated to protect that right.

The NFL players and others say they are protesting to raise awareness of racial injustice. They have a valid point of view in that regard, although I think there are better ways of focusing attention on the issue. I have not heard any of them say that members of the U.S. military are not worthy of respect. I would recognize military disrespect if I saw it. While I was not personally subjected to disrespect when I got back from Vietnam, many of my brothers in arms were--raw, awful disrespect.

What does disrespect men and women in the military is to characterize swastika-toting neo-nazis as good people. They certainly have the right to brandish their flags and torches, while they utter anti-semitic chants, but let’s remember that many American service personnel, not to mention millions of European Jews, died at the hands of people who cherished the swastika and nazism. For that matter, many Americans died fighting secessionists who worshiped the confederate battle flag.

What also dishonors veterans of all wars is to demean an American prisoner of war like John McCain who served his country with distinction and who comported himself with honor and dignity while being subjected to inhuman treatment at the hands of his captors.

I would never fail to stand with my hand over my heart when the national anthem is played, but I certainly would not condemn a person who chose that form of protest to bring attention to perceived failings of the government. The right to protest is deep in the soul of America and is among the rights that I and many other veterans went overseas to protect.

On judicial race financing

jones

Although I have not been a big fan of publicly-financed elections, I have come to believe that public financing would work well in contested judicial races. Judges are not politicians and they should certainly not be. The problem is that a contested election for a district or appellate court position costs money and raising money to finance such an election looks unseemly.

Judicial candidates are prohibited from personally asking for campaign contributions. So, they must ask others to shake the bushes for campaign money on their behalf. Even though the candidate is somewhat removed from the fund-raising activity, it just does not look good. It gives the appearance of justice being for sale.

In my twelve years on the Supreme Court, I saw no hint of any decision of any Idaho court having been influenced by a campaign contribution. However, we are dealing with public perception of the impartiality of the judiciary. If people see fund-raisers hustling on behalf of persons who want to be judges, it tends to diminish confidence in the judicial system. Public financing could help shore up public confidence in the judiciary.

Public financing would not be that costly for taxpayers. Although election contests have become more common in recent years for Supreme Court positions, there has been only one contest every other year for that court since the turn of the century. I cannot recall an election contest for the Court of Appeals. If public financing were to cover district court races, there would be an average of 3-4 contests in each four-year election cycle (an average of one per year).

A cost of $150,000 per candidate for Supreme Court elections and $50,000 per candidate for district court would be in the general ballpark. That would mean legislative funding of about $300,000 every two years for the Supreme Court and $400,000 every four years for district court races.

Public financing could be limited to candidates who commit to forego any other source of financial support and who are interviewed by the Idaho Judicial Council and receive a rating of “qualified” or better. The Judicial Council does an outstanding job of evaluating candidates and is in a position to determine those who possess the qualifications for a judicial position. Public funds would not be available to those determined by the Council to be unqualified.

Public confidence in the justice system would be enhanced by relieving candidates of the drudgery and indignity of fund raising. There does appear to be public support for the concept. In a citizen survey conducted in 2002 by Rachel Vanderpool Burdick, 60% of voters who responded said they would support public financing of judicial elections. West Virginia and New Mexico have had good success with public financing and perhaps the time has come for Idaho to give it a try.

We’re not learning

jones

Now that Ken Burns and Lynn Novick have told the Vietnam story from their viewpoint, I’d like to add my two bits.

I thought the PBS series was very well done, particularly the taped quotes of the Presidents and others in charge of the war. I had been aware of it before, but it was extremely distressing to hear the cynicism pouring from the mouths of President Nixon and Henry Kissinger. Their war decisions were based on politics, not upon honesty. They were willing to dump South Vietnam like a hot rock without letting that country know what they were up to.

I certainly didn’t disagree with the withdrawal of American troops, but we should have clearly advised the South Vietnamese that we would not provide combat air support to repel a future North Vietnamese attack. Indeed, Nixon told them we would have their back. It is hard to tell how many South Vietnamese soldiers, interpreters, and others who worked with American forces lost their lives or spent years in brutal “re-education camps” because they trusted us and believed Nixon’s words. I believe some of my friends were among them. Had we been honest, many of those people might have chosen to leave the country and we should have offered them safe harbor in America.

When the communist forces were moving on Saigon in April of 1975, U.S. intelligence knew the country was on the verge of falling and urged that we organize an evacuation of those who had helped us and were in danger of retribution. We did not act until it was too late and then we were slow to open our doors to the many thousands of South Vietnamese who risked their lives in flimsy boats, seeking refuge in America. It was a sad chapter in our history.

Now, there are about 50,000 Iraqis who stuck their necks out by helping U.S. forces in the Iraq war and who are awaiting entrance into our country as refugees. They rightfully believed we would provide them protection from retribution for helping us. Many Afghans are in the same boat, although they still have the benefit of a special visa program. We destabilized the Middle East with our unnecessary invasion of Iraq, contributing to the massive refugee crisis, but seem to think we have no responsibility to give comfort to the refugees we helped to create.

The President has now capped refugee admissions to 45,000 for the coming year, the lowest level in decades. This is a massive evasion of responsibility. We were a major cause of the refugee problem but are unwilling to make a meaningful effort to solve it. So much for owning up to our moral responsibility. Both Admiral Michael Mullen, former Chairman of the Joint Chiefs of Staff, and Michael Chertoff, George W. Bush’s Secretary of Homeland Security, have recently stated that a larger refugee ceiling is in America’s national security interests and they are absolutely right.

These things do not happen in a vacuum. Our unwillingness to shoulder our responsibility plays out in front of the world community. Governmental leaders of many nations, including our close allies, see how the U.S. either meets or shirks its moral duties. If we are not willing to own up to what we are honor-bound to do, which countries are going to be inclined to help America when we may need them? America needs to be a country that owns up to its responsibilities, that honors its commitments, and that acts as a moral beacon to the world. We can’t be great if we are not good.