Thursday, February 25, 2016
Good Old American Know-How
He had grown up in a country run by politicians who sent the pilots to man the bombers to kill the babies to make the world safer for children to grow up in.
—Ursula Kroeber Le Guin, The Lathe of Heaven
A number of readers have written inquiring where cluster bombs can be conveniently purchased. At first blush one might think that the question is being asked by readers who are tired of the limited ability of the AK 47 to inflict harm on a lot of people in a short amount of time, that weapon being a favorite of those who do mass murders. The fact is that few of my readers are of that sort and so their inquiries are prompted by intellectual curiosity alone. It is a reasonable question since cluster bombs are once again in the news and some of my readers thought that cluster bombs had been banned and, that being the case, wondered why anyone would continue to make them and, to whom they would sell them. Those are both good questions and I am happy to be able to answer both of them. First, a word of explanation about cluster bombs is probably in order.
Cluster bombs are described as anti-personnel and anti-armor weapons. They were used to tragic effect in Vietnam where they not only indiscriminately killed those within their purview, but in many cases failed to explode and were left lying in the countryside to later explode killing children and others who came into contact with them. According to one report, in Laos where they were also used, 80 million bombs failed to detonate and, long after the conflict there ended, have been responsible for countless injuries among those who encountered them. Because they are both lethal and unpredictable, 109 states signed the Convention on Cluster Munitions that was adopted in 2008. It prohibits the use, production and stockpiling of cluster bombs. Although a treaty banning cluster bombs sounds like a great idea, only 109 states initially signed it. As of this writing there are 118 signatories. Among the more prominent states that have refused to sign, for reasons best understood by them, are Saudi Arabia, Russia and the United States. Although the United States has not signed the treaty, it has proved sensitive to the tendency of the cluster bomb as a device to underperform. Many cluster bombs during the Vietnam war proved to have a failure rate of more than 1% and were used in areas where there were large civilian populations. Congress became concerned about this and, as a result, under the 2009 Omnibus Budget Bill, only cluster bombs that have a failure rate of less than 1% can be exported and they can only be used against “clearly defined military targets.” A country that buys cluster bombs from the United States has to sign a statement stating that they will not be used “where civilians are known to be present.” Notwithstanding these reassuring restrictions, cluster bombs acquired from the United States have been used by Saudi Arabia in its war with Yemen and, according to a lengthy and detailed report by Human Rights Watch (HRW): “Saudi Arabia is using them notwithstanding evidence of civilian casualties.” According to Steve Goose, arms director at Human Rights Watch(HRW): “Recently transferred US-manufactured cluster munitions are being used in civilian areas contrary to US export requirements and also appear to be failing to meet the reliability standards required for US export of the weapons.” By now, a reader (and perhaps a prospective buyer of a cluster bomb or two) probably wants to know who is supplying the cluster bombs that fail to meet the standards set forth in the omnibus bill so the reader can shop elsewhere. The answer is Textron Systems Corporation doing business as “Textron Defense Systems”, of Wilmington, Massachusetts.
Textron’s website indicates that the cluster bombs (more formally known as SFW CBU-105 DF/ P31) made by it, exceed “stringent U.S. Department of Defense policy on multiple warhead systems by regulating unexploded ordnance (UXO) to less than 1 percent. SFW [sensor fuzed weapon] has demonstrated greater than 99.6 percent reliability with U.S. Government verified performance in combat operations and during more than 600 operational tests. In addition, SFW’s redundant self-destruct features and self-neutralization mode ensure that battery power dissipates minutes after a smart Skeet is released, rendering it safe.” In its Valentine Day’s posting, however, HRW cites numerous examples of cluster bombs manufactured by Textron that failed to explode. Whether the number of devices that failed to explode in Yemen are more or less than 1% of the cluster bombs used on that country is impossible to know. Whether HRW’s report of civilian deaths is correct is also impossible for someone like this writer to know. And for obvious reasons, Textron cannot be held responsible for whether Saudi Arabia is careful not to use the bombs where civilians will be killed or injured. If HRW’s facts are correct, and there are civilian victims, the fault lies with Saudi Arabia and not Textron. Saudi Arabia’s failure to honor its obligations is not Textron’s responsibility. As noted song writer and satirist Tom Lehrer wrote many years ago: “’Once the rockets are up, who cares where they come down. That’s not my department,’ says Wernher von Braun.” Nor is what Saudi Arabia does with the cluster bombs in Textron’s department. Of course it could quit making them.
Thursday, February 18, 2016
Silence is Golden
Silence in times of suffering is the best.
John Dryden
At long last there is gun related news that does not implicate the second amendment. The news involves a device related to guns that is enjoying a spike in sales. It is especially good news because although it is related to guns, the spike in sales of this particular product was not related, as gun related sales usually are, to acts of gun violence. The spike in sales has to do with a federal regulation that is to take effect July 1, 2016, and the device that is enjoying a spike in sales is a silencer. This news was brought to us courtesy of the Wall Street Journal and was especially surprising since many non-gun owners did not know that the purchase and sale of silencers was a big deal and certainly had no idea it was a big seller among the gun-toting crowd in the United States. According to the WSJ reporter, however, we were ill informed. There are, we have been informed, almost 800,000 silencers owned by gun owners in the United States.
This news probably comes as as much of a surprise to many of my readers as it did to me. It had never occurred to me that silencers were used except in gangster movies where the mobster, accompanied by one or two side-kicks, enters the restaurant, approaches a table where a rival is quietly seated enjoying a spaghetti dinner, exchanges a few words with the rival, takes aim, fires (the gun emitting a an almost inaudible pop) the target slumps over, face in the spaghetti, and the mobster and colleagues quietly turn and leave the restaurant. (Other people seated in the restaurant continue eating, unaware, thanks to the silencer, that anything untoward has happened.) The belief that only mobsters use silencers, we have now learned, is wrong. They are everywhere gun owners are and accompany their owners as the owners walk around looking for opportunities to practice self-defense in a quiet way.
The spike in silencer sales, as observed above, is attributable to a regulation that is to take effect on July 1, 2016. The National Firearms Act of 1934 imposed a requirement on would-be silencer purchasers that a local law enforcement agent approve the purchaser of a silencer before the sale could be completed. (This requirement may have been imposed because the purchasers of silencers wanted to go about their business of murder quietly so as not to disturb those in the vicinity of the violence, and law enforcement was interested in knowing who was buying the devices.) The law further provided that an individual owner of a silencer could not permit anyone else to use the silencer. It was purchaser specific, as it were. To avoid complying with this apparently burdensome requirement, silencer purchasers created trusts that could buy silencers without getting the approval of law enforcement. In addition, silencer trusts could share their assets with all the other members of their trusts. . A large group of mobsters could simply buy one silencer and let it be used by anyone in the mob who was assigned the task of rubbing out, as the vernacular had it, someone in an opposing mob.
According to the Bureau of Alcohol, Tobacco, Firearms & Explosives, 111,599 trusts of the sort just described were created in 2014. Under the new regulation the burden on these trusts will be greater. Every member of a trust will have to undergo a background check and submit fingerprints and photos before the trust will be permitted to acquire a silencer. And it is in an eagerness to avoid these new requirements that silencer sales have spiked.
Luis Rose owns Sterling Arsenal in Sterling, VA. He told the WSJ reporter that in January 2016 he sold 6 times the number of silencers he would normally sell in a month in January. (Silencers sell for between $800 and $1,200.) He further said that only three of the approximately 2,000 silencers he sold in 2015 were bought by individuals rather than trusts. Given those statistics, it is easy to see why there is practically a stampede to the sellers of silencers to get the product before it becomes more difficult to obtain.
A refreshing aspect to the concerns of those rushing to buy silencers is that no one has suggested that there is a second amendment right to buy and own a silencer. Would-be purchasers of silencers explain, when asked, that they simply want to protect themselves from hearing loss and there should not be a federal regulation that makes that more difficult. Their argument proves one thing, if nothing else. Compared with the gangsters of the ‘30s, the buyers of silencers today are wimps. It’s hard to imagine Al Capone explaining to the seller of a silencer that he only needed it to protect against hearing loss.
Tuesday, February 16, 2016
The Cruzifiction of Wayne Haley
Herewith a quiz: If you were the Solicitor General for the State of Texas and it came to your attention that someone had been sentenced to prison for 16 1/2 years for (i)committing an offense for which the maximum sentence was only 2 years, (ii)) and was now in his seventh year of incarceration, which of the following things would you do: (a) immediately take all available steps to make sure that the sentence was corrected and the prisoner immediately released, (b) do everything possible to make sure that the prisoner served the full 16 ½ years even though that was 12 more years than the maximum amount the court could have imposed had the defendant’s lawyer, the judge and the prosecutor not all made mistakes.? If you selected (a) you should support someone other than Ted Cruz. If you selected (b) you may want to send Mr. Cruz some money. Michael Wayne Haley was the man who served 5 more years than the maximum permitted under state law.
Michael stole a calculator from a Wal-Mart store and was caught and convicted. After he was convicted of the theft everyone thought it was his third conviction and he was tried and convicted as an habitual offender and sentenced to 16 ½ years in prison. There was just one problem. His conviction on stealing the calculator was only his second conviction and he wasn’t eligible to be convicted as an habitual offender. The judge, the prosecutor and the defense counsel all had made a bad mistake. The maximum sentence to which Michael was entitled was 2 years in prison, 14 ½ years fewer than the number of years to which he was sentenced.
After Michael had served 7 years, someone discovered the mistake that had been made and Michael sought post-conviction relief arguing that the evidence presented at the penalty hearing was insufficient to support the habitual offender conviction. A sensible person might conclude that was the end of the matter. Texas did not. The state court rejected his petition on procedural grounds because he had not pointed out the mistake earlier. In other words, it was OK for him to stay in prison for a total of 16 ½ years because, as people are wont to say, mistakes happen.
Those of my readers who are not schooled in the law may think it odd that a court would say a procedural error would make it OK to keep someone in prison 8 times longer than the law allows. That would appear to a layperson to be a horrible miscarriage of justice for the victim. After the state court refused to give Michael relief from the excessive sentence, Michael went to Federal Court to seek relief. When the District Court heard his case it concluded in more formal language than this, that Michael should not have to serve more time in prison. Texas disagreed and went to the 5th Circuit Court of Appeals in an effort to permit Michael to complete his 16-½ year sentence. The Court of Appeals refused to permit Texas to continue to incarcerate Michael on the basis of a mistake. It said: “If we were to condemn Haley to suffer the consequences of an affirmative finding . . . he would continue serving a sentence as an habitual offender of which he is in fact innocent. This is a classic example of a ‘fundamental miscarriage of justice,’ precisely what the actual innocence exception was created to prevent.”
Texas found the court’s reasoning offensive and appealed to the U.S. Supreme Court. It hoped that that Court would enable Texas to keep poor Michael in jail for the entire 16 ½ years. By the time the case arrived at the United States Supreme Court, Ted Cruz was the Solicitor General for the State of Texas. It was he who argued in the United States Supreme Court that Michael’s conviction as an habitual criminal should stand even though he wasn’t one. He had his reasons and they were the kinds of tortured legal obfuscatory reasons that would only appeal to a man of Ted Cruz’s towering intellect. They must have been good ones since he was arguing that an innocent man should continue to be punished by the state of Texas for a crime of which everyone agrees he was not guilty. During the course of arguing before the United States Supreme Court and urging the Court to rule that Michael should remain in prison, Justice Anthony Kennedy asked Mr. Cruz: “Is there some rule that you can’t confess error in your state?” That would be a nice question for the moderator in the next Republican debate to ask Mr. Cruz. He almost certainly has a ready answer for that question.