Out of Touch; Out of Their Minds

"[Americans] are tired of been ignored by this Do Nothing Republican Congress, while their everyday problems only grow worse." - Joint Statement by Harry Reid and Nancy Pelosi

What?!!?? The Congress has been ignoring me and...and...and I've actually managed to survive??? How can that be? For 12 years, no one has been telling me how to spend my hard-earned money; no one has been telling me what health care plans I can use; no one has been telling me how to live my own life. And yet, somehow, I managed not to kill myself with the gun no one told me I couldn't own. I'm so glad Reid and Pelosi have seen fit to correct this grievous error in a free, capitalist society.

But they are right - my everyday problems are growing worse. The likes of R&P have made it impossible for new refineries to be built. They have made it impossible for oil companies to drill offshore. They have made it impossible for any refinery that is still in business to take American oil from Alaska's North Slope. They have invested billions in the pipe-dream of renewable energy sources, and then caved in to the environmental freaks to keep the windmills from operating out of fear of killing some migratory bird. In short, they have caused the cost of gasoline to skyrocket, and the "Do Nothing Republican Congress" has failed to take action (except try to open ANWR).

The likes of R&P have forced me to donate an increasing percentage of my hard-earned wages to support a failing education system. The have forced me to donate an increasing percentage of my hard-earned wages to support free health care for illegal aliens. The have forced me to donate an increasing percentage of my hard-earned wages to support activist judges who insist on interfering with every aspect of my life. The have forced me to donate an increasing percentage of my hard-earned wages to support a ludicrous worker compensation law. In short, they have tried to instill Socialism in America, and the "Do Nothing Republican Congress" has failed to take action (except to keep the Socialists at bay).

The likes of R&P have spared no effort to criticize America. They have spared no effort to criticize the military and all those who have ever worn the uniform except for Murtha and Kerry. They have spared no effort to blame America for all the evils in the world and excuse the inexcusably barbaric behavior of those who would destroy us. They have spared no effort to publish lies, mis-conceptions, and conspiracy theories to discredit the current Administration. They have spared no effort to publish details of secret programs designed to keep us safe. They have spared no effort to produce movies which glorify terrorism and morally equivocate terrorism with the US Military. In short, they have smeared the good name of those who fight to give R&P the right to be wrong, and the "Do Nothing Republican Congress" has failed to take action (OK, they really have done nothing on this).

It's not rocket science. Yes, the "Do Nothing Republican Congress" has largely ignored me and my everyday problems. Apparently there are still some rational human beings serving in Congress that understand government is not my nanny. And for that, I'm glad I vote Republican.

There They Go Again

Last month, another Congressional sub-committee had another round of “hearings” on the subject of violence in video games. Apparently, a “hearing” involves having a bunch of uninformed idiots determine a position ahead of time and then proceed to bloviate about the perceived problem, all the while refusing to engage in constructive discourse.

And much as was the case last year, the object of special derision was the GTA series of video games. Perhaps no single game franchise has received such attention as GTA III, Vice City, and San Andreas. Predictably, the attention has only caused increased interest in the games and led to record-breaking sales. Rockstar Games could not have paid for better publicity than having a bunch of out-of-touch bureaucrats-for-life condemn the mere existence of GTA.

It is easy to find one or two examples of someone who at least claims his actions were influenced by playing GTA. But it is just as easy to find someone who was not. In fact, it is even easier. There are literally tens of millions of copies of the various GTA games on PCs and consoles around the world. If these games were so influential, shouldn't there have been a measurable increase in violent behavior? Where are the statistics showing rampant car-jacking? Where are the millions of individual people inciting race riots amongst ethnic communities in cities across the world? Where are the dare-devils jumping buildings and bridges in order to score a “Triple Insane Stunt Bonus?” The fact is that it is just not happening.

But that doesn't stop Congress Critters and mothers everywhere from blaming the video games for Johnny's anti-social behavior. This year, though, liberal Congress Critters upped the rhetoric ante by suggesting that violent video games are racist. That's right – apparently, black children are more likely to “act out” the scenes in GTA. Ignoring for a moment that there is absolutely no research to support this ludicrous claim, consider the (il)logic. Your character in each of the GTA games is a criminal. Isn't it racist for the Democrats to suggest that black kids playing criminals are more likely to become criminal themselves?

But all of that belies the problem that video games just don't have the influence on the average person that is claimed. Statistics show that the “average” gamer is a 33 year old male. This prototypical gamer has been playing video games for well over 20 years now. Shouldn't there be a measured effect on the populace by now?

There are thousands of games on the market, not all of which involve violence. Consider the game Myst, which required the player to solve a serious of intriguing puzzles, involving the collection and synthesis of clues scattered throughout the landscape. Even the “hints” had to be interpreted and applied in the right place at the right time. The game required you to use your brain. There was no killing, no BFG, no rampant mayhem, and yet it sold like the proverbial hotcake. Myst was simply a phenomenon. So many copies were sold that it took nearly 10 years before any other game outsold it. In fact, Myst was the first video game to reach 10 million unit sales.

If video games are influencing behaviors, shouldn't Myst have sparked a re-dedication to education? Why were there not millions of people enrolled in critical thinking classes? Or pursuing careers as private investigators? Or propelling Agatha Christie and Sir Arthur Conan Doyle back to the top of the best-sellers list?

Are we to believe that it is only violent video games that are influencing people? The truth is that the anti-video game crowd has been around as long as there have been video games. Some of those Congress Critters have been sitting there in Washington since long before Pong and Venture saw the light of day. It's probably a safe bet that at least a few of them participated in “hearings” on the dangers of Rock-n-Roll.

No, instead what we see is a constant moving of the goal posts. Initially it was “video games” that were dangerous. Then it was “violent video games.” Then it was “animated gratuitous violence.” Then it was “realistically portrayed violence.” And on and on. This moving of the goal posts is an excuse for ever-increasing regulation. In time honored tradition, if the end point keeps moving, success can never be achieved. But more agencies can be created to employ more bureaucrats-for-life.

After playing GTA for a couple of hours, I don't steal the first car I come across and then tear down the road hellbent for high water, crashing into everything I see. I have never felt the urge to pick up a chainsaw or baseball bat and proceed to beat the living daylights out of random people on the streets. I have never entered an illegal drag race. I haven't engaged in any criminal activity, nor have I encouraged such behavior in others because rational people do not do that. There is still such a thing as free will in this world. No game (or movie, or book, or music) can make you do anything.

Most distressing to me is that it is the Republicans who are actually in favor of increased regulation. Capitalism demands that regulation be kept to a minimum in order to allow the free market of ideas to flourish. Consumers vote with their wallets. They choose to buy or not buy entertainment products based on their likelihood of enjoyment, not based on the potential influence that product may contain.

I would like to remind those Republicans that the best government is the smallest government. Get back to doing the important stuff like lowering taxes and stopping the illegal alien invasion. These are the reasons we elected you. That is your job. [end public service announcement]

Besides, where are the parents in this? Government does not have an obligation to raise your kids. Parents have an duty to decide what is and is not appropriate for their own children. Opponents of video games will argue that parents cannot stop Johnny from playing GTA, because he'll just go to a friend's house to play. This argument is fallacious. Pervasiveness is no reason for the government to intervene. Parental responsibility does not end at the front door of their own house.

It's not rocket science. If you don't like GTA, finance the development of a different game that is fun to play. That Myst and Super Mario Brothers are popular titles certainly gives lie to the belief that only through regulation can the world be protected from the evils of violent video games.

It's Wrong, But Is It Treason?

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” US Constitution, Article III. Section 3.

In a previous posting (“Prior Restraint No, Common Sense Yes”) I commented that I did not believe the NYT had engaged in treason in their publishing of classified information in the form of the revelations of the SWIFT terrorist finance tracking program. In this article, I will explain my reasoning.

First off, let me say unequivocally that I believe what the NYT did was both wrong and illegal, and the editorial staff needs to be prosecuted to the full extent that the law allows (which we will see presently). Freedom of the press does not grant an absolute right to say what you wish, nor does it create a fourth, unelected branch of government with full authority to determine in all cases whatsoever what is classified and what is not. Nor is “freedom of the press” a shield against prosecution when a law has been broken. But what the paper did is not treason.

Prior to the War for Independence, King George III had taken to using charges of treason to punish his political enemies. Many colonists were charged with treason for various acts, speeches, and publications that were critical of the Crown's treatment of the colonies. Despite protections for both speech and press that were guaranteed by the English Constitution, colonists so charged were removed to England to stand trial for exercising those rights.

Determined to prevent the executive branch of the new American government from abusing their power in the same way, the Framers decided to codify within the Constitution exactly what constituted “treason.” The bar to prove a charge was set intentionally high, both as an additional guarantee of personal liberties and as a legal barrier to the use of treason as a political weapon.

It did not take long before a charge of treason reached SCOTUS in the sedition trial of Aaron Burr. SCOTUS left unanswered precise definitions of key terms in Art III, Section 3, however, “overt act” was read very narrowly. At its most basic, “overt act” means that someone has directly caused harm to America while actively in a state of war through one of the specific actions listed. In Burr's case, SCOTUS ruled that planning the overthrow of the federal government was not in fact an overt act, and the charge of treason was dismissed. That precedent is what we examine today.

Two questions must be answered. First, is there an “active state of war?” Second, was the publication of details of the SWIFT program an “overt act?”

To the first question, despite references to the “Global war on terror,” only the Congress can declare war. A declaration of war is a formal statement by Congress that a state of war exists between America and some belligerent nation. The Constitution has vested this power exclusively with Congress, and no statement from the President can remove this responsibility. Since al Qaida is a stateless entity, there can be no state of war between us. Congress has not (indeed cannot) declare war on al Qaida, and instead has passed an “Authorization to use force” (itself of dubious legal standing). No war, no treason.

To the second question, SCOTUS has adopted a very narrow view of what consists of an overt act. And although there is no way to know for sure exactly what stance SCOTUS would take, it is likely that mere publication of classified information would not be considered one. Clearly, passing information on military movements or secret law enforcement activities directly to the enemy would be an overt act, even under the narrow definition SCOTUS has used heretofore. However, it is highly probable that the language in the Espionage Act of 1917 and the addition of Section 798 to 18 USC (to be discussed shortly) were adopted for the reason that publication (even of classified information) would not be classified as an overt act. No overt act, no treason.

Thus, in this case, the NYT and its editors did not commit treason against the United States. This poses an interesting question, though. Suppose someone did pass classified information directly to al Qaida. Would that person be guilty of treason? Strictly speaking, since we cannot formally declare war on al Qiada, on a Constitutional basis, sadly, the answer is no. Yes, we are in a war, but it is not a war in the legal sense (which is not to say it is an illegal war, it is just not a “war” per se).

None of which is to say that the NYT did not break the law. There is not simply a binary decision between treason or no treason. 18 USC 798 “Disclosure of Classified Information” reads in relevant part [full text can be found at uscode(dot)house(dot)gov] “Whoever knowingly and willfully...publishes, or uses in any manner prejudicial to the safety or interest of the United States...any classified information...concerning the communication intelligence activities of the United States or any foreign government...Shall be fined not more than $10,000 or imprisoned not more than ten years, or both...The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution”

Anyone who has ever had a security clearance knows that there are two conditions that must be met prior to the disclosure of any classified information, namely, the proper level of clearance and the need to know. It is beyond doubt that the editors of the NYT obtained this information in direct violation of 18 USC 798, and in addition, proceeded to disclose it to people without the proper clearance or the need to know. The “compelling public interest” argument the Times has used does not grant a “need to know.” Nor does it grant the right of the Times' editorial staff to decide just who has such a need.

It's not rocket science. Both the individual(s) who released the information to the Times as well as all those at the Times who were involved with the publication of the story have indeed committed a crime. That crime carries a maximum prison term of 10 years. The federal government ought to vigorously pursue charges against all those involved as a violation of 18 USC 798.