Sunday, August 09, 2015

Governor Kasich was Mealy-Mouthed and Missed an Opportunity to Defend Ohio's Constitution on Marriage Amendment

Governor Kasich is getting a lot of attention for his stance on gay marriage during the primary debate (video).

But earlier this year, before the Supreme Court's decision on the Ohio's Marriage Amendment as it related to the Ohio-initiated Obergefell v. Hodges case, he failed to make the case on behalf of the people of Ohio.

In the April 18, 2015 CNN interview with Sara Murray he was asked about his position on gay marriage and his decision to attend a wedding of a close gay friend (Video starting at 0:35):

Sarra Murray: "...So what brought you to that decision even though you are opposed to gay marriage?"

Governor Kasich: "...It's pretty simple for me.  I don't need to be making big statements about any of this.  I'm not going to change my position on it.   We'll see what the court does. But, it's pretty simple.  I care about him, he cares about me. He invited me to something.  I'm going to go do it.  It's not that complicated..."  
When it mattered most, Governor Kasich was mealy-mouthed when it came to  the democratically arrived at public policy of the state he governs.

As the highest elected official of the state, the issue was not solely about how he privately felt, but about how Ohio's decision to economically subsidize relationships that resulted in new citizens for the state.

Consistent with his position, Kasich should have said something like:

 'I've carefully read Judge Sutton's decision from the 6th Circuit that the Supreme Court is now reviewing.   The opinion exactly captures the intent of my fellow citizens in Ohio when we voted for a change to our constitution in 2004.  The justices of the Supreme Court should look at Judge Sutton's sound legal reasoning and respect the democrat will of Ohioans when he states':
...One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues. Dandridge v. Williams, 397 U.S. 471, 486–87 (1970)...
...What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning...

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Friday, July 31, 2015

In the Interest of Justice for Sam DuBose, Officer Ray Tensing and the People of Cincinnati

NOTE:  Updates are displayed before original post.  Scroll down to 'Start of original post' to see original frame-by-frame analysis sourced from Officer Tensing's complete body cam recording.

Bottom line for readers simply wanting the net of this post without reading all the detail:
  1. Officer Ray Tensing may (jury will decide) have feared he was being dragged and thus feared for his life.
  2. The fear (from 1) may have justified use of lethal force (jury will decide).
  3. Not only may Officer Tensing have feared that he would be dragged, Officer Tensing WAS dragged as the video evidence conclusively shows (detail below).
  4. The jury will have to reconcile the fear of being dragged with the fact that he was dragged.
Update 10: (8/21/2015):

Link to analysis by David Blake, a certified police instructor: Ray Tensing Shooting: Potential Video Bias.

The analysis makes reference to U.S. Supreme Court Case Graham v. Connor:
...(c) The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation... (cite

Update 9: (8/20/2015):

Prosecution claims:
"The State is unaware of evidence favorable to the Defendant."
They haven't looked or are purposefully avoiding the evidence.

Update 8: (8/19/2015):

WCPO video interview with Hamilton County Prosecutor Joe Deters.  At the start of the interview Deters challenges the reporter by saying he did not indict Officer Ray Tensing, but the grand jury did:

Reporter:  Let's start with Ray Tensing.  It's been almost two weeks since you indicted him. 
Deters (interrupting): I didn't, the grand jury did.

Then at 11:00 Deters says the following:
..."Right after it happened I talked to the mayor … and he said to me, 'I think you might have stopped a riot.' And I said, 'John, that might be true, but that's not why I did this.'

"I did it because it was the right thing to do. I did this because we believe he intentionally shot him in the head."...

Update 7: (8/16/2015):

Opinion piece by former police officer Stephen R. Kramer: 'Only DuBose had criminal intent':
...Police Officer Ray Tensing was hired to patrol the CUF area for the drug dealers, burglars and violent people who have plagued that community for decades. We can assume that he sensed DuBose was one of these. A police officer has to have a pretext to stop and talk to suspected criminals. Tensing found one – the car had only one license plate.

Tensing didn't know it at the time, but he was right! DuBose's records show that he was a drug dealer, burglar and violent person – just what Tensing was hired to look for. He was also illegally driving the car, illegally had drugs for sale, and obviously lying to Tensing at the traffic stop.

In the next few seconds, both made some bad decisions. DuBose illegally failed to comply with Tensing's orders, illegally resisted arrest, and illegally drove off. Tensing reached into the car. DuBose sped up regardless of the danger to Tensing. Both would probably tell you these were the dumbest things either had done in their lives. But only DuBose's actions had criminal intent.
Update 6: (8/4/2015):

Link to Prosecutor Joe Deters' press conference transcript with the erroneous assertions:
...Q: The officer's attorney told us that the officer was dragged. And the incident report suggests that, too. Does the video show that at all?
Deters: No, he wasn't dragged
Q: Was he ever knocked to the ground, from the hood of the car to the ground?
Deters: No, he fell backwards after he shot him in the head...
Update 5: (8/2/2015):

This analysis just published today by Compass Check Consulting Services, LLC is very detailed:



 Updated version of same analysis with more details and questions for the prosecution:

 

Update 4: (8/2/2015):


Another frame-by-frame analysis by 'ScienceMadeEasy' with more details:



Update 3: (8/2/2015):

Link to the original police report: http://www.uc.edu/content/dam/uc/ucomm/docs/incident-report.pdf

Assuming a formal forensic analysis (as called for below) establishes that the Mr. DuBose's car was moving (as CNN reports; see Update 2) while Officer Tensing was holding on to the seat belt (see: Time Mark: 3:16 below), the jury will have an opportunity to assess Tensing's state of mind and the accuracy of his statements to Officer Weibel.

The analysis below may ultimately call into question the prosecutor's indictment and claims by the media (like CNN) that the video does not support Tensing's statements:

...Officer Tensing stated that he was attempting a traffic stop (No front license plate) when, at some point, he began to be dragged by a male black driver who was operating a 1998 Green Honda Accord(OH.GLN6917). Officer Tensing stated that he almost was run over by the driver of the Honda Accord and was forced to shoot the driver with his duty weapon (Sig Sauer P320). Officer Tensing stated that he fired a single shot. Officer Tensing repeated that he was being dragged by the vehicle and had to fire his weapon...
At a minimum, Tensing's defense team may use this as evidence to argue reasonable doubt.

To support the 'state of mind' argument, Officer Tensing is heard  in the video yelling "Stop, Stop".  Consider this:  does someone yell "Stop!, Stop!" to something that's already stopped or something that is moving and they want to get it to stop?

So to be perfectly clear:


  1. Will it be forensically established, beyond a reasonable doubt, that the car was moving before Officer Tensing used his gun.
  2. If (1) is established, did Officer Tensing, who was holding the seat belt (as established by Time Mark 3:16 below) while the car was moving, have a reasonable fear in his mind that he was being dragged; resulting in the use of his firearm to defend himself.  


Update 2: (8/2/2015):

CNN is reporting (with video starting at 0:58) that Sam DuBose's car moved before Officer Ray Tensing fires his gun:
...Frame by frame you see the police officer reach for DuBose's door.  Asks Dubose, who is driving on a suspended license, to remove his seat belt.  DuBose starts the car.  It begins to move. The officer's gun comes out.  He shouts "Stop, Stop". Then the gun shot. The car speeds up. The officer is on the ground.  The gun in front of the camera...
CNN does not analyze the oil stains evidence, as is done below, to show that Officer Tensing was indeed dragged.

Update (8/2/2015):
Food for thought:  
Scared Cop ≠  Bad Cop:

Start of original post (before updates):

Officer Ray Tensing was charged in the death of a Sam DuBose.

Officer Ray Tensing has asserted that he was dragged during the incident.  The Huffington Post reports (emphasis added):

...But [Prosecutor] Deters said Wednesday that the video doesn't support that telling of events.

Rather than being dragged by the moving car, Deters said, Tensing "fell backward after he shot [DuBose] in the head."

The video does appear to support Deters' account that Tensing fell backwards after firing the shot.

In the video, Tensing repeatedly asks DuBose if he has a license. DuBose says he has one and it's not suspended, but he doesn't have it on him.

Tensing then asks DuBose to take his seat belt off. At that point, DuBose appears to put his right hand on the key in the ignition, and it sounds as if his car is starting.

Tensing screams, "Stop! Stop!" before firing his gun at DuBose.

The officer falls backwards onto the ground and then gets up and starts running. There's no clear indication that Tensing was dragged before he shot DuBose...
The following type of analysis and evidence from Officer Tensing's body cam will more than likely be part of the trial and search for justice; for Mr. DuBose, Officer Tensing and the whole Cincinnati community.  Both the death of a fellow citizen and the prosecution of an officer sworn to protect us is a serious matter worthy of thoughtful and fair assessment.   

This initial analysis of the video challenges the reported assertion that "Rather than being dragged by the moving car, Deters said, Tensing "fell backward after he shot [DuBose] in the head."

In addition, the analysis points the way to determine if there is "clear indication that Tensing was dragged before he shot DuBose".    The analysis shows that an angle made by a line from the license plate of an automobile parked in a driveway to the passenger-side door-release knob becomes more obtuse (gets larger) from the time the car is turned on by Mr. DuBose to the time Officer Tensing fires his gun.

Note:  A formal forensic analysis that accurately accounts for the relative positioning of items noted in this analysis and for the possible body cam fish-eye-like distortion would be required for a definitive conclusion.

Ultimately,  a jury of his peers will determine if Officer Tensing properly feared for his life during the incident, but the jury should have all the facts when an officer's liberty is at stake and a fellow citizen is dead as a result of his actions.

Primary source of evidence: the complete body cam video:




Time Mark: 1:15
Evidence/Analysis: Two video frames; one unaltered; the second with a red arrow identifier for the large pole along the fence:
  • Mr. DuBose's is the passenger in the dark car on the far right of the frame.
  • There is no car parked along the fence.   
  • Seven (7) vertical steel fence beams down along the fence is a large pole (see red arrow) which will be referred to later.



Time Mark: 1:25
Evidence/Analysis: Two video frames; one unaltered; the second with red arrows that identify oil stains on the road, the automobile parked in the driveway and a line from the center of the automobile to the passenger-side door-release knob:

  • A small oil stain is located near the driver-side, front wheel of Mr. DuBose's car.
  • Two large oil stains are located several feet down the road in front of Mr. DuBose's car.



Time Mark: 2:06
Evidence/Analysis: Two video frames; one unaltered; the second with a red line from the center of the parked automobile in the driveway to the door release knob in Mr. Dubose's car.



Time Mark: 3:15
Evidence/Analysis: Two video frames; one unaltered; the second with a red line from the center of the automobile parked in the driveway to the door release knob in Mr. DuBose's car.  The approximate angle made by the red lines is 110 degrees.  The 3:15 video mark is approximately 1 second after Mr. Dubose has turned on the car.  Take careful note of how much of the automobile is visible in the area that frames the passenger-side window.



Time Mark: 3:16
Evidence/Analysis: Two video frames; one unaltered; the second with two red lines that make an angle of approximately 115 degrees.  Note that more of the automobile in the driveway can now be seen within the frame around the passenger-side window.

The formal forensic analysis will have to determine if the effect of seeing more of the automobile in the driveway through the passenger window is a result of:

  • the car moving;
  • Officer Tensing moving to his right;
  • Officer Tensing moving closer to the car; 
  • or any combination of all three dynamics.


Officer Tensing is clearly grabbing Mr. DuBose's seat belt.



Time Mark: 3:17 The moment Mr. DuBose is shot. 
Evidence/Analysis:   Two video frames; one unaltered; the second with two red lines that make an angle of approximately 145 degrees.  Note that the automobile in the driveway can now be completely seen within the frame around the passenger-side window.

The angle made by the red lines has grown from 110 degrees to 145 degrees suggesting that the car has moved.  This possible movement of the car, while Officer Tensing was holding the seat belt, is probably what Officer Tensing reported as being dragged.



Time Mark: 3:19 
Evidence/Analysis:   Officer Tensing and the body camera are now facing the fence beyond the the pole identified in initial frame at video time mark 1:15.  Officer Tensing is on the ground. Two video frames; one unaltered; the second with red arrows identifying the pole and a passenger car that may have an additional witness to the incident since that car was not there when the stop was initiated.  Note that it looks like the brake lights on the car are on.



Time Mark: 3:22 Officer Tensing is lifting himself from the ground.
Evidence/Analysis: Two video frames; one unaltered; the second with red arrows identifying the oil marks from video frame above at 1:25.  This is conclusive evidence that Prosecutor Deters' assertion that  "Rather than being dragged by the moving car, Deters said, Tensing "fell backward after he shot [DuBose] in the head." is incorrect.

The evidence clearly shows that Officer Tensing was dragged from the location where Mr. DuBose's car was at 1:25 in the video (shown again below for reference) to where Officer Tensing is at 3:22 in the video.




Related:




Thursday, June 25, 2015

Justice Scalia Blows a Hole the Size of a U.S. "State" in Roberts' King v. Burwell Tortured-Logic

A dissent that will go down in legal history for the strength of its clear logic in contrast to the contortions of logic offered by the majority (emphasis added):
...Perhaps the Patient Protection and Affordable Care Actwill attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State”means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.  And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

I dissent.
By his dissent, Justice Scalia establishes that at least one American has actually read the complete Affordable Care Act (aka Obamacare).  Take the time to read  his dissent and don't rely on secondary analyses.

Obamacare (now SCOTUScare as Scalia suggests) was built on deceit every step of the way.  Be it:

The deceit is now complete with the majority's King v. Burwell decision.

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Tuesday, June 02, 2015

Designated Hitter

Chatter Chitter, Hashtag Litter
Fatter Fitter, Shame a Quitter

Patter Pitter, Sweet Embitter
Flitter Fritter, Look!; a Critter

Jatter Jitter, Long Hair Splitter
Scatter Skitter, Louse Aglitter

Twatter Twitter, H8 Emitter
Tattered Tethers, Days a Dither

Related:

Monday, June 01, 2015

New evidence emerges on the origins of life

Via Phys.org:
In the beginning, there were simple chemicals. And they produced amino acids that eventually became the proteins necessary to create single cells. And the single cells became plants and animals. Recent research is revealing how the primordial soup created the amino acid building blocks, and there is widespread scientific consensus on the evolution from the first cell into plants and animals. But it's still a mystery how the building blocks were first assembled into the proteins that formed the machinery of all cells. Now, two long-time University of North Carolina scientists - Richard Wolfenden, PhD, and Charles Carter, PhD - have shed new light on the transition from building blocks into life some 4 billion years ago...
Related:

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Saturday, May 23, 2015

Towards Accountable Public Service

Paul Singer, USA Today's Politics Editor, was on C-SPAN's Washington Journal recently discussing the Office of Congressional Ethics' probe of ten members of the House of Representatives.  They are accused of accepting an improper trip in 2013 from a state oil company in Azerbaijan.

The topic inspired in me recommendations for accountability in government.  My public service is currently limited to serving on a small community board for homeowners.  But if I ever sought higher office, the following would be part of my platform/promise to my fellow citizens if they were to entrust me to represent them:


  • I promise to be the worst politician and best public servant that will ever represent you.
  • Every conversation that I have in my capacity as your representative will be recorded and made easily available for public review; along with my official schedule.  If an individual or group wants to meet with me in my capacity as a representative and does not agree to have the conversation recorded, I will not speak to them but will consider their issues in writing; which will also be publicly available.

    The only exception will be conversations pertaining to community or national security; as required by law.
  • I will not vote on a piece of legislation unless I have completely read it.
  • I will treat the spending of your money with the same care you took in making it before it was taxed.

Wednesday, April 29, 2015

John Bursch Uses Porkopolis' Logical Arguments in Supreme Court Case: Obergefell v. Hodges

Background:
  • In November of 2014, the logical argument was made that marriage is not a United States Constitutional legal right.  
  • In October of 2009, the argument was made that a state's recognition of marriage was a tri-party agreement; with financial benefits to the couple being recognized by the state.  That argument was stated in the 6th Circuit DeBoer v. Snyder  opinion.

In his arguments against forcing states to recognize same-sex marriage in Obergefell v. Hodges, John Bursch (Special Assistant Attorney General for Michigan) used this exact same line of reasoning.   From the hearing's transcript (page 78) (emphasis added):
...In Butler, you said when someone's serving a life sentence, it's appropriate for the State to deny them the opportunity to marry because they never had that opportunity.

So even there, you you were tying the State interest that we're asserting here to marriage. 

And and let let's take away all laws regarding cohabitation and and intimacy outside of marriage so that there is no criminal conduct, the underlay for all those things. 

If the State today decided to have no marriage, as some States have proposed, that wouldn't violate a fundamental right. The fundamental right at stake in those cases was the right to be left alone, not the right, as Chief Justice Roberts intimated in the first part of this argument, to force the government to come into your home and recognize something and and to give you benefits. Those are two very different things. 

And and you can draw the analogy to the abortion context. And I'm reluctant to bring that up, but, you know, in Roe v. Wade and Casey, this Court says the government cannot interfere in that private choice. That's a fundamental right. In Maher, the Court says but a woman cannot force the government to come participate in that by paying for it.

Likewise here. Lawrence said the government cannot interfere in private, intimate conduct. Our position is that the Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by by forcing them to recognize and give benefits to anyone. That's not the way that our fundamental rights doctrine works....

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Sunday, April 26, 2015

Debate: Does the Constitution Require States to Recognize Same-Sex Marriage?:



 See the logical and legal slap downs (video) of the argument against the 'polygamous slippery slope'.

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Saturday, April 25, 2015

Politics is...

...the compromise of principles by principals.

Wednesday, April 01, 2015

Must C TV: Former Secretary of State Clinton's Use of Email

C-SPAN has a Judicial Watch panel discussion on Hillary Clinton's email-gate:

 C-SPAN Video Link

Related: Washington Examiner: Feds should have told national archivist of Clinton's private email abuse:
State Department officials who briefed Secretary Hillary Clinton on administrative policies and procedures soon after she took office were obligated to inform her of federal laws and regulations requiring her to use an official email account for government business and to inform the national archivist if they believed she was not doing so thereafter.

"I would say the top career officer in that briefing was obligated to make clear what the law requires and then to contact the national archivist at the National Archives and Records Administration," said American University Professor Daniel Metcalfe Tuesday. "The archivist would then call Hillary Clinton and tell her of the requirements of the law," he said...

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Monday, February 16, 2015

Court Jester Jon Stewart Has No Clothes

In the New York Post opinion piece How Jon Stewart Turned Lies into Comedy and Brainwashed a Generation writer Kyle Smith exposes Jon Stewart for the liar that he is:
...Let’s look at the media reports on Iraq that Stewart is arguing make [Brian] Williams’ untruths pale in comparison. Problem: Those reports were not lies. Journalists trying to figure out whether the war was justified called up credible experts with experience in the field and passed along what they said. As a more honest version of Stewart might say, “Dude. That’s not malfeasance. That’s Re. Por. Ting.”

Stewart added that “it’s like the Bush administration hired Temple Grandin to build a machine that kills the truth.” Even the audience of devotees seemed to find this simile baffling.

The idea that “Bush lied” is itself a lazy, ill-informed and false statement.

As Judge Laurence Silberman, co-chairman of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, wrote in The Wall Street Journal last week, essentially nobody in the Washington intelligence community doubted the major report that Iraq had an active WMD program in 2002.

The National Intelligence Estimate delivered to the Senate and President Bush said there was a 90 percent certainty of WMDs. Democrat George Tenet, the Clinton CIA director who continued to serve under Bush, said the case for WMDs was a “slam dunk.”

John Kerry, Hillary Clinton, Chuck Schumer, Harry Reid and Joe Biden all looked at the intelligence and voted to authorize force. Sen. Jay Rockefeller argued strongly for the war. Then, years later, when it wasn’t going so well, he published a highly politicized report ripping Bush.

There is a serious case to be made against the Iraq War, but it’s a lot more complicated than the playground taunt, “Bush lied about WMDs.” (“Hey, I’m a comic, you expect me to do serious? Please welcome our next guest, Henry Kissinger!”)...

...Brian Williams has become a joke for telling lies, but Jon Stewart is a liar for the way he told jokes.

The "Bush Lied" Lie post provides more documentation of the "lazy, ill-informed" rhetoric Jon Stewart and his ilk foisted on a whole generation along with this:

Wednesday, February 11, 2015

WSJ Op-Ed on Common Core: Making Math Education Even Worse: American students are already struggling against the competition. The Common Core won't help them succeed.

The WSJ Op-Ed on Common Core everyone should read; by  Marina Ratner who

 ...is professor emerita of mathematics at the University of California at Berkeley. She was awarded the international Ostrowski Prize in 1993 and received the John J. Carty Award from the National Academy of Sciences, of which she is a member, in 1994.

Excerpt:
...This [Common Core] model-drawing mania went on in my grandson's class for the entire year, leaving no time to cover geometry and other important topics. While model drawing might occasionally be useful, mathematics is not about visual models and "real world" stories. It became clear to me that the Common Core's "deeper" and "more rigorous" standards mean replacing math with some kind of illustrative counting saturated with pictures, diagrams and elaborate word problems. Simple concepts are made artificially intricate and complex with the pretense of being deeper—while the actual content taught was primitive... 

Sunday, February 01, 2015

Cato Institute: Seven Myths about King v. Burwell

Of the seven myths detailed in Michael Cannon's commentary on  King v. Burwell #3 and #5 are most compelling:

...Myth #3: King is based on “a drafting error.”
The requirement that tax-credit recipients enroll in coverage “through an Exchange added by the State” appears twice explicitly in the tax-credit eligibility rules, and a further seven times by cross-reference. It was added to the text at multiple stages of the legislative process, including under the supervision of Senate leaders and White House staff.
That’s not a drafting error. Not even the Obama administration argues it was....

...Myth #5: Congress intended to offer tax credits in federal exchanges.
The most significant myth to gain currency in these cases, the one that underlies and animates all opposition to thereto, is a theory of congressional intent without any evidentiary basis.
All available contemporaneous evidence points to the conclusion that Congress intended to withhold exchange subsidies in federal exchanges.
Many bills Congress considered in 2009-2010 offered exchange subsidies in all states. Other bills offered exchange subsidies only in states that cooperated on implementation. Some members undoubtedly preferred the former type. The one that passed Congress, however was the latter type. The fact that that was the only bill that could pass Congress means that members voting for the ACA intended to enact this restriction, even if they ideally would have preferred another bill.
The only contemporaneous statement that speaks directly to this question supports the plain meaning of the text. In 2010, former Texas Supreme Court Justice Lloyd Doggett, a Democratic member of the House of Representatives, warned his party’s leaders that even though the ACA provided for federal fallback exchanges, states could still categorically block their residents from receiving “any benefit” under the ACA’s exchange provisions simply by refusing to establish an exchange. The other ten Texas Democrats in the House of Representatives joined Doggett’s warning. All eleven would later vote to enact the ACA without modification to that feature.
Meanwhile, despite three years of searching for contemporaneous evidence that any member of Congress intended for the ACA to offer tax credits in federal exchanges, the government has come up empty.
It is not material that ACA authors Max Baucus, Tom Harkin, and Harry Reid now claim they intended for the law to offer subsidies through federal exchanges. These claims came only post-enactment, after the contrary statutory language proved to be a political liability. Nor is it material that Sander Levin, George Miller, Nancy Pelosi, and Henry Waxman say the same, because they played no role in the ACA’s drafting. What’s more, each of these members of Congress also claimedthat if you like your health plan, the ACA lets you keep it – thus demonstrating either (A) they do not understand the law, or (B) they are willing to lie to protect it.
In the face of contemporaneous evidence to the contrary and the absence of any contemporaneous support, the theory that Congress intended the ACA to offer tax credits in federal exchanges appears to be a post hoc fabrication...

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Sunday, December 21, 2014

Carol Dweck: The power of believing that you can improve

Re-post: It's a Wonderful Life

In homage to the annual broadcasting of the excellent work of cinematic art, It's a Wonderful Life,  the philosophical argument It's a Wonderful Life is re-posted:

It's a Wonderful Life

The essays You Don't Need a Meaning of Life to Have a Meaningful Life and The Thoughtful Universe offer deductive arguments for the nexus of philosophy and neural correlates.

Like 'meaning' and 'thought', 'wonder' itself can be studied as a mental phenomenon.  To appreciate wonder, first consider the absence of 'wonder'; the well known.

The medulla oblongata neurologically participates in autonomic functions; like breathing, heart rate and blood pressure.  Autonomic functions are so 'well known' (i.e., the neural circuitry and activation response mechanism have been forged/hard-wired over eons by evolution) that unless one actively engages conscious effort they're 'automatic'.

More than likely, what we experience as conscious 'wonderment' will be localized to brain/mental processes in the neocortex, though recent research is revealing that "primitive brain structures" may also be involved in consciousness.

The research paper Neural Correlates of the Perception for Novel Objects details recent experiments using functional Magnetic Resonance Imaging (MRI):
Perception of novel objects is of enormous importance in our lives. People have to perceive or understand novel objects when seeing an original painting, admiring an unconventional construction, and using an inventive device. However, very little is known about neural mechanisms underlying the perception for novel objects. Perception of novel objects relies on the integration of unusual features of novel objects in order to identify what such objects are. In the present study, functional Magnetic Resonance Imaging (MRI) was employed to investigate neural correlates of perception of novel objects. The neuroimaging data on participants engaged in novel object viewing versus ordinary object viewing revealed that perception of novel objects involves significant activation in the left precuneus (Brodmann area 7) and the right visual cortex. The results suggest that the left precuneus is associated with the integration of unusual features of novel objects, while the right visual cortex is sensitive to the detection of such features. Our findings highlight the left precuneus as a crucial component of the neural circuitry underlying perception of novel objects...
Autonomic and wonderment phenomena are responses to neurological stimuli.  As complex as the brain is, it has limitations in its ability to handle stimuli.  Though limited, the brain engages the evolutionary evolved dynamic of neuroplasticity of the synaptic connectome as an adaptive mechanism to process novel stimuli ('I've never seen such a beautiful sunset...isn't it wonderful?') that can't be handled by autonomic functions.  Counter-intuitively, sometimes neuroplasticity invokes a 'less synaptic connections is more' dynamic.  Sudden insight is another adaptive mechanism.

Novelty (the not well known/unfamiliar/new stimuli) is a necessary component of  the 'wonder' dynamic and with neuroplasticity contribute to the neurological dynamic of wisdom which may have cultural components.   All part-and-parcel of our 'Wonderful Life'; full of wonder indeed.

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Sunday, December 14, 2014

Senate 'Torture' Report: Re-post of Understanding Interrogation and Drone Policy

In light of the angst our country is undergoing with the Senate 'Torture' Report  and debating its data privacy policies, a re-post of Understanding Interrogation, Drone and Manhunt Policy is being made to provide perspective on, not justification of, the policy:

There's a common universal thread in the following debates:
The common thread is that all of these can be looked at as an escalation of defense strategies and studied through the lens of Game Theory; an analysis framework that breaks down and abstracts strategies to their essence.
The April 17, 2009 post entitled 'Torture Memos: Food for Thought'  provides a perspective on these challenges and is re-posted here:

Torture Memos: Food for Thought
(April 17, 2009)

In the wake of the recently released Torture Memos by the Obama administration, the following is offered as food for thought.

Coming in From the Cold: CIA Spy Calls Waterboarding Necessary But Torture:
A leader of the CIA team that captured the first major al Qaeda figure, Abu Zubaydah, says subjecting him to waterboarding was torture but necessary.

In the first public comment by any CIA officer involved in handling high-value al Qaeda targets, John Kiriakou, now retired, said the technique broke Zubaydah in less than 35 seconds.

"The next day, he told his interrogator that Allah had visited him in his cell during the night and told him to cooperate," said Kiriakou in an interview to be broadcast tonight on ABC News' "World News With Charles Gibson" and "Nightline."

"From that day on, he answered every question," Kiriakou said. "The threat information he provided disrupted a number of attacks, maybe dozens of attacks."
And here's a look at the issue through the lenses of Science and Game Theory:

Assume for the moment that torture was used on terrorists like Khalid Shaikh Mohammed (KSM) ("principal architect" of the 9/11 attacks). The science of immune systems (Immunology), Evolution and an analysis informed by Game Theory offer us billions of years of 'best practices' in dealing with deadly threats that can be translated to the moral challenges our society faces in the Global War on Terror.

Game Theory is often used as a tool to abstract and model the payoffs of various strategies and responses in biology and human behavior (eg: Passive Versus Aggressive Strategies: A Game Theoretic Analysis of Military and Immune Defense, Cheating Viruses and Game Theory and Tit for Tat).

John Maynard Smith and George R. Price used game theory concepts to develop the category of Evolutionary Game Theory analysis. The use of torture against terrorists as a last resort is analogous to the last resort strategies utilized by the immune system; a defense mechanism whose strategies have withstood the test of time through error and trial.

In principle, an immune system works to protect an organism by attacking pathogens that would do it harm. White blood cells, or leukocytes, are constantly at work defending against harmful microbes in the body. The fevers we experience when our bodies get the flu, a 'high-level attack' and a disease that takes 250,000 to 500,000 humans annually, are part of the overall defenses the immune system utilizes. A fever's prolonged high temperatures can cause death. That's why the body maintains a normal temperature when it is simply experiencing 'low-level attacks', like the germs that infect a small wound on your hand.

Unfortunately, the immune system's protection comes at a price; it's a two-edged sword with built-in imperfections. Sometimes it attacks the very organism it's trying to defend. This condition is called Autoimmunity. Rheumatology is one branch of medicine that treats one of these imperfections.

Eons of evolution have given us an immune system that precariously balances aggressive actions, like high fevers, with unintended consequences. We must remind ourselves that the attack-and-defend interplay between pathogens and immune systems is not a steady-state system, but is co-evolving. One of the more fascinating adaptations is the process of active immunity and its production of antibodies. With active immunity, an immune system is constantly re-programming itself in response to the diseases/attacks it has survived.

Much like the immune system uses a potentially deadly fever as a last resort defense mechanism, our society should keep waterboarding as a legitimate, but rarely used, tool to protect the greater good. Particularly against individuals like KSM who are determined to destroy our society.

The argument is often made that the Geneva Conventions and policies against torture are there to protect our soldiers. But the historical evidence doesn't support this claim. The Nazis and Japanese abused POWs during WWII. POWs were tortured during the Vietnam War. And more recently, our troops have been tortured to death in Iraq.

Like a doctor treating a patient, our society should be guided by the core principles of 'first do no harm' and the Golden Rule (treat others as you would have them treat you) as we debate and evolve our policies. Implied within the Golden Rule and the Geneva Conventions is an expectation of reciprocity; even from our enemies. It's worth remembering that al-Qaida and its operatives are not signatories to the Geneva Conventions and have no claim on its protection.

While water boarding is an extreme tactic, it is justified by the extreme measures our enemies have taken against us. Our challenge is to make sure that we judiciously use this tool and don't allow a potential abuse that would result in an attack on the very society we're trying to protect; à la an autoimmune disease. We must be mindful of the potential hazard of declaring the operation (our anti-terrorism tactics) a success at the expense of losing the patient (our ethics and morals).

Related:
Update: Intel chief: Harsh techniques brought good info

Thursday, November 27, 2014

Repost: The 'You Break It, You Own It' Theory on Benghazi

In light of the recent official confirmation that the CIA gathered intelligence on weapons to Syria in the House Intelligence report on Benghazi , this post originally made on February 9, 2013 is reposted:

The following is a theory on the apparent disinterested nature and dissonance President Obama had over the Benghazi attack discussed at the Senate Armed Services Committee on February 7, 2013.   It's inspired by Secretary of State Colin Powell's Pottery Barn rule on Iraq: 'You Break It, You Own It', as posited by New York Times columnist Tom Friedman.

It's also prompted by the question, 'If the President was against a policy of arming the Syrians, why do we have a report that arms were being shipped from Benghazi to Syria by way of Turkey?'. (The question might evoke memories of the 'You Can't Handle the Truth!' scene in a 'Few Good Men'.)

It's only a theory and attempt to connect some very curious 'dots' that have been reported.  Like any theory, it can be proven wrong, but history shows that informed speculation has a utility in uncovering the truth.

Theory:  President Obama was not intimately involved/engaged with the operational defense of the Benghazi Consulate because he was upset that key members of his National Security Council had circumvented his policy against arming the Syrian rebels.  His disengagement was his way of disassociating himself from a policy gone wrong; a policy he originally opposed.

The Facts in Support of the Theory:
  • The National Security Council (NSC) includes the Secretary of Defense (Leon Panetta), the Secretary of State (until recently Hillary Rodham Clinton; now John Kerry), the Chairman of the Joint Chiefs of Staff (General Martin Dempsey),  the Director of National Intelligence (James Clapper) whom was reported to by the Director of Central Intelligence (David Petraeus) and the National Security Advisor (Tom Donilon).
  • The February 7, 2013 New York Times story 'Senate Hearing Draws Out a Rift in U.S. Policy on Syria' notes the following (emphasis added):
    In his first term, President Obama presided over an administration known for its lack of open dissension on critical foreign policy issues.

    But on Thursday, deep divisions over what to do about one of those issues — the rising violence in Syria — spilled into public view for the first time in a blunt exchange between Senator John McCain, Republican of Arizona, and the leaders of the Pentagon.

    Testifying before the Senate Armed Services Committee, Defense Secretary Leon E. Panetta acknowledged that he and the chairman of the Joint Chiefs of Staff, Gen. Martin E. Dempsey, had supported a plan last year to arm carefully vetted Syrian rebels. But it was ultimately vetoed by the White House, Mr. Panetta said, although it was developed by David H. Petraeus, the C.I.A. director at the time, and backed by Hillary Rodham Clinton, then the secretary of state...

    ...Neither Mr. Panetta nor General Dempsey explained why President Obama did not heed their recommendation. But senior American officials have said that the White House was worried about the risks of becoming more deeply involved in the Syria crisis, including the possibility that weapons could fall into the wrong hands. And with Mr. Obama in the middle of a re-election campaign, the White House rebuffed the plan, a decision that Mr. Panetta says he now accepts.

    With the exception of General Dempsey, the officials who favored arming the rebels have either left the administration or, as in Mr. Panetta’s case, are about to depart. Given that turnover, it is perhaps not surprising that the details of the debate — an illustration of the degree that foreign policy decisions have been centralized in the White House — are surfacing only now. A White House spokesman declined to comment on Thursday.

    The plan that Mr. Petraeus developed, and that Mrs. Clinton supported, called for vetting rebels and training a cadre of fighters who would be supplied with weapons. The plan would have enlisted the help of a neighboring state.
    This line of questioning was pursued by both Senators McCain and Graham during the hearing.
  • A mysterious Libyan ship -- reportedly carrying weapons and bound for Syrian rebels -- may have some link to the Sept. 11 terror attack on the U.S. Consulate in Benghazi, Fox News has learned.

    Through shipping records, Fox News has confirmed that the Libyan-flagged vessel Al Entisar, which means "The Victory," was received in the Turkish port of Iskenderun -- 35 miles from the Syrian border -- on Sept. 6, just five days before Ambassador Chris Stevens, information management officer Sean Smith and former Navy Seals Tyrone Woods and Glen Doherty were killed during an extended assault by more than 100 Islamist militants.

    On the night of Sept. 11, in what would become his last known public meeting, Stevens met with the Turkish Consul General Ali Sait Akin, and escorted him out of the consulate front gate one hour before the assault began at approximately 9:35 p.m. local time.

    Although what was discussed at the meeting is not public, a source told Fox News that Stevens was in Benghazi to negotiate a weapons transfer, an effort to get SA-7 missiles out of the hands of Libya-based extremists. And although the negotiation said to have taken place may have had nothing to do with the attack on the consulate later that night or the Libyan mystery ship, it could explain why Stevens was travelling in such a volatile region on the 11th anniversary of the 9/11 attacks.

    When asked to comment, a State Department spokeswoman dismissed the idea, saying Stevens was there for diplomatic meetings, and to attend the opening of a cultural center...

    ...The cargo reportedly included surface-to-air anti-aircraft missiles, RPG's and Russian-designed shoulder-launched missiles known as MANPADS.
  • The following two video excerpts from the committee hearings document Senator Graham's inquiry into why President Obama only had one conversation with Secretary Panetta and General Dempsey.  Note that Panetta never talked to Hillary Clinton and Hillary Clinton spoke directly with the President and the National Security Advisor, Tom Donilon.

    (Update: It appears from Secretary Clinton's testimony (link to C-SPAN video: Sec. Clinton on Her Activities on 9/11/2012) that she also spoke to the President just once during the attack, though she wasn't asked that question directly in the link provided.)

    (Update 2: Confirmed that Secretary Clinton only spoke once with the President as well. See the questioning by Representative Dana Rohrabacher from the House Hearings between 1:04:35 and 1:09:45:

    Dana Rohrabacher: “When did you see the President?”

    Secretary Clinton: “I talked to the president at the end of the day, but I had been in constant communication with the National Security Advisor. I’d been in secure video conferences with high level officials in the White House, in the Defense Department."


    )

    Pay close attention to how Senator Graham gets Panetta and Dempsey to state on the record that they only had one conversation with Obama and how he starts his second round of questioning re-confirming the arms shipment policy difference detailed in the New York Times article above:

    Video 1:

     

    Video 2:

  • An obvious question should come from these facts and reports.  With the on-the-record testimony that President Obama was against shipping arms to Syria, why were arms being sent to Syria (transiting through Turkey)...at least according to the Fox News report?  
Conclusions/Speculations:
  • The arms were being shipped to Turkey, instead of directly to Syria, to provide plausible deniability.
  • Somehow, key members of the National Security Council were able to put together a plan to get arms to Syria in spite of the President's objection.

    The President may have finally relented but said something to the effect of, 'OK...but if things blow up you're on your own...you get to clean up the mess' to his NSC members that were in favor of the policy.  Or in Tom Friedman's words, "You Break It, You Own It".

    This may explain the lack of engagement Senator Graham was pursuing above on the operational details of Benghazi, even to the point of continuing with a planned visit to Las Vegas on September 12, 2012.

Legal Reasoning: Marriage is not a Federal Constitutional Fundamental Right

The post '6th Circuit Echoes Porkopolis' Arguments on Rationale for State of Ohio Defining Marriage' demonstrates how Judge Sutton's 6th circuit opinion echoes an argument made on this blog in 2009.

Judge Sutton also reasoned in the opinion that a state only has to satisfy a minimal rational basis for establishing marriage.  The act of establishing a rational marriage law is in essence an act of discernment and not an act of discrimination.

Euclid used the technique of using contradictions (reductio ad absurdum) when arguing mathematical proofs.

As in a Euclidean mathematical proof, a contradiction is used in the following line of reasoning that has been forwarded to the Ohio Attorney General's office in the event that the 6th circuit ruling is reviewed by the Supreme Court:

Marriage is not a United States Constitutional Fundamental Right 

It is the law of the land, through the Windsor decision, that a state like New York can define marriage within its borders and the federal government must respect that. This was the rationale to strike down the federal Defense of Marriage Act.

What of the corollary to that? Can a state choose NOT to define marriage within its borders?

If a state chooses to do so, will the federal government intercede and say, "You CAN'T be a state without a definition of marriage."?

If one argues that the federal government has the right to tell the state it can't exist without any marriage laws, a reference to the U.S. Constitution where that authority exists must be provided.

Now, if one can't find that clause in the U.S. Constitution, then the conclusion must be that marriage is not a fundamental right and that state can still be part of the union with no marriage laws whatsoever.

And once one establishes that marriage is not a United States constitutional fundamental right, we're back to Windsor and every state has a right to define marriage to address the rational concerns as perceived by that state and the federal government can't intercede in a state's approach to addressing the rational concern.

If the rational concerns were universal rational concerns, they would be in the federal constitution; either in original form or amended.

Update (05/06/205) : Oklahoma House votes to do away with state marriage licenses

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Friday, November 07, 2014

6th Circuit Echoes Porkopolis' Arguments on Rationale for State of Ohio Defining Marriage

The 6th U.S. Circuit Court of Appeals yesterday upheld same-sex marriage bans in Ohio and three other states in DeBoer v. Snyder.

In doing so, the court used an argument that echoes the one made by Porkopolis in 2009:
...Before considering the question of gay marriage, a more fundamental question should be considered: Why marriage at all? 

In the United States, marriage is a tri-party legal agreement. The first two parties, husband and wife, are obvious. The third party is the state/community that acknowledges a marriage. Male and female couples petition the state –and more generally, their community– to recognize their marriage. If it was just a simple relationship amongst consenting adults, the community would have no need –and more importantly no business– acknowledging the relationship.

However, marriage is a relationship that imposes responsibilities on the community and that’s why the state is involved in its recognition and definition; as in detailing that only two (not more) individuals of the opposite sex will be recognized in a marriage. Married couples get legal tax and inheritance status. Male-female couples asking the state to recognize their marriage are also asking the state to address the care of their biological children if the couples are incapable of doing so.

What does the community get in return for consideration of this ‘special’ status? It is rejuvenated –by the only relationship that can procreate: a male-female relationship– and benefits from responsibly raised children in a marriage. Because of the corrosive effects to the community of infidelity, the community acknowledges only monogamous marriages. This shared responsibility amongst all the parties (husband, wife, community) is the limited government rationale for marriage as a legal construct...
From the court's opinion:
...One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues. Dandridge v. Williams, 397 U.S. 471, 486–87 (1970)...
...What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning...
The 6th Circuit opinion is extremely well reasoned and worthy of a complete reading as evidenced by this argument against the claim that "failure to recognize gay marriages celebrated in other States violates the Due Process and Equal Protection Clauses":
...What of the reality that Ohio recognizes some heterosexual marriages solemnized in other States even if those marriages could not be performed in Ohio? See, e.g., Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). The only reason Ohio could have for banning recognition of same-sex marriages performed elsewhere and not prohibiting heterosexual marriages performed elsewhere, the Ohio plaintiffs claim, is animus or “discrimination of an unusual character.” Obergefell Appellees’ Br. at 18 (quoting Windsor, 133 S. Ct. at 2692).

But, in making this argument, the plaintiffs misapprehend Ohio law, wrongly assuming that Ohio would recognize as valid any heterosexual marriage that was valid in the State that sanctioned it. That is not the case. Ohio law recognizes some out-of-state marriages that could not be performed in Ohio, but not all such marriages. See, e.g., Mazzolini, 155 N.E.2d at 208 (marriage of first cousins); Hardin v. Davis, 16 Ohio Supp. 19, 20 (Ohio Ct. Com. Pl. 1945) (marriage by proxy). In Mazzolini, the most relevant precedent, the Ohio Supreme Court stated that a number of heterosexual marriages—ones that were “incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited”—would not be recognized in the State, even if they were valid in the jurisdiction that performed them. 155 N.E.2d at 208–09 (noting that first-cousin marriages fell outside this rule because they were “not made void by explicit provision” and “not incestuous”). Ohio law declares same-sex marriage contrary to the State’s public policy, placing those marriages within the longstanding exception to Ohio’s recognition rule. See Ohio Rev. Code § 3101.01(C)...
Related: Collection of Essays and Posts on Same-Sex Marriage

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Friday, October 17, 2014

Obama can't "Philosophical"-ly Have It Both Ways on Ebola Travel Restrictions

After meeting with several public health officials yesterday, Obama reiterated his policy of not implementing travel restrictions from areas of Africa where the Ebola epidemic is growing out of control.

Mr. Obama made the following statements  that don't stand up to critical analysis:

I don't have a philosophical objection necessarily to a travel ban, if that is the thing that is going to keep the American people safe. But the problem is is that in all of the discussions I've had thus far with experts in the field, experts in infectious disease, is that say travel ban is less effective than the measures that we are currently instituting--that involve screening passengers coming from West Africa...

...If we institute a travel ban instead of the protocols that we put in place now, history shows that there is a likelihood of increased avoidance. People do not readily disclose their information. They may engage in something called broken travel, essentially breaking up their trip so that they can hide the fact that they have been to one of these countries where there is a disease in place. And as a result, we may end up getting less information about who has the disease, they are less likely to get treated properly, screened properly, quarantined properly, and as a consequence we could end up having more cases rather than less...
The President, an individual with two Ivy-league degrees and skilled in the art of rhetoric, should know well that those statements open him up to being accused of having it both ways.  With his statement he concedes that infected (and possibly infectious) individuals "may engage in something called broken travel, essentially breaking up their trip so that they can hide the fact that they have been to one of these countries where there is a disease in place."

Mr. Obama would have us believe that once a travel ban is instituted, an infected individual will use 'human cunning' to evade the travel ban and get to a treatment facility in the United States.  As if the act of a travel ban brings out the creative-evasive thinking in infected individuals.  His critical-deficient thinking makes no provisions for realizing that the 'human cunning' exists even without the travel ban.  Infected individuals have every incentive now to creatively circumvent the screening process in a country like Liberia.  Using cunning like: