How to build the Wall

By Scott Weiser

In order for the border wall to ever get built a couple of things must happen: First, the federal government must exercise eminent domain and take a strip of land perhaps a mile wide along the length of the border, paying the private property owners “just compensation” as constitutionally required. Second, the strip of land so acquired must be declared to be a national security border control zone and placed under the control of the U.S. Army.

Third, Congress must immediately pass a law exempting national security border control zones from any or all of the provisions of the National Environmental Protection Act, the Endangered Species Act, the Bald and Golden Eagle Protection Act and any other law that can be used to interfere with the construction of the wall and associated border security installations, including roads, bridges, guard towers, garrisons, military bunkers or any other structures that the President determines are necessary for the protection of the United States against intrusion or attack.

Otherwise every single foot of the wall will be tied up in enviro-whacko leftist environmental lawsuits until hell freezes over. This is a matter of national security, so there must be an exemption from obstructive environmental regulations for such national security border control zone installations. As a military reservation, the U.S. Army will have jurisdiction over entry enforcement.

The problem is that current law permits citizens and environmental groups to file obstructive EPA lawsuits even on military reservations in order to enforce their desired view of the NEPA. While this may be appropriate for military installations where accommodations can be made to protect the environment where no military emergency exists, securing the border is an entirely different matter of national security and the need is both overwhelming and immediate and obstruction cannot be permitted.

Therefore any obstructionism based on environmental arguments must be short-stopped by Congress as if this was a war-time military operation to prevent a physical invasion of enemy troops across the border, which would permit any sort of defensive structures deemed necessary by the Commander in Chief without having to go to court in order to provide for the national defense.

I suggest a law called the “National Defense Critical Border Infrastructure Exemption Act” that says, pretty simply,

“Congress shall have the power to declare a national defense border control emergency. Such declaration shall authorize the President to determine, in his sole judgment, what national defense critical border infrastructure is required to be provided for the defense of the nation.

Pursuant to this authority the President shall have plenary power to exempt national defense critical border infrastructure from any or all provisions of environmental law or other law that would inhibit or delay the ability of the President to provide infrastructure critical to national security border defense.

Pursuant to a presidential determination that national defense critical border infrastructure is required, judicial review of such determination is prohibited.”

 

Homes on the range

Society of Professional Journalists Award
Society of Professional Journalists Second Place award for Political Reporting and Feature Writing to Scott Weiser for his Boulder Weekly article “Homes on the Range, June 27, 2002

by Scott Weiser

Jim Guercio is accustomed to fawning fans. As a record producer who helped make the Beach Boys one of music’s most legendary pop bands, Guercio learned how to give the fans what they want. These days, it’s county officials he’s trying to please, and critics say the Boulder County Commissioners are acting like obsessed groupies. “You could almost hear the ‘POP’ from the commissioner’s lips as they detached from Guercio’s buttocks when he left the room,” said one observer of the public hearing before the County Commissioners on Tuesday, March 27.

Guercio, who has already profited from land sales to Boulder County for open space to the tune of more than $15 million, has applied to build 23 luxury estate homes, a horse barn, a 5,000-square-foot “fishing cabin,” three back-country “cabins” larger than many mountain homes, and nearly 10 acres of trout-fishing ponds on his Caribou Ranch property northwest of Nederland.

More than 30 years ago, Guercio bought the Caribou Ranch, consisting of more than 4,000 acres, including a subdivision platted and approved by the county in 1963 called “Caribou City.” During the ’70s and ’80s, he made a mecca for recording by building a state-of-the-art recording studio at the Caribou Ranch homestead (see sidebar).

Guercio has rights to build 136 homes on the property. Starting in 1996, he sold 2,180 acres to Boulder County and the City of Boulder, and put another 460 acres under conservation easement. His new project would add another 1,029 acres to the total of preserved open space.

The commissioners are eager, some say overeager, to grant Guercio his request. They want to eliminate the possibility that the old subdivision could be developed-something the county cannot prevent because the subdivision was approved by their predecessors nearly 40 years ago. People familiar with the county’s “Byzantine” and “Machiavellian” land use regulations are concerned about the apparent ease with which Guercio’s project is being approved by county officials.

Critics suspect Guercio’s money and his political support of Commissioners Ron Stewart and Paul Danish in the last election helped to grease the skids for his development plans. He donated $1,000 to each politician’s campaign. They are upset that the county isn’t giving the same sort of intense, nit-picking scrutiny and micromanagement to Guercio’s project that they say it commonly dishes out to Joe Average Citizen when he applies for a building permit for a single-family home.

But the criticism isn’t being leveled at Guercio himself. Nobody, including members of the Land Use Coalition-a private property advocacy group that’s critical of the county’s land use process-seems to have any major objections to Guercio’s project. “It’s a great project. I think (Guercio) has done a very professional job,” Kevin Probst says. “It will be an exclusive development, there’s no question about that, but it is a good change to amend the process from building a hundred smaller homes to building 20 or so larger homes.” Probst, who ran against Danish in the last election-losing by some 17,000 votes-is the president of the Land Use Coalition and heads Boulder County Watchdog, an organization he started after the election to scrutinize county government.

“What I have a problem with is the hypocrisy,” he says, “He’s getting special treatment, and the commissioners are bending over backwards, to put it mildly, to grease the process for him, whereas Liz Weed and others have been put through years of abuse and torture.”

County Commissioners Jana Mendez and Paul Danish categorically deny that Guercio is getting special treatment. “It hasn’t been easy by any stretch of the imagination. He has compromised a lot,” Mendez says. “I think we bend over backwards to treat everyone the same.” Danish agrees with Mendez. “The negotiations at Caribou have been going on for months, so it’s not like he’s been put on a fast track,” he says.

Critics maintain that the county is obstructionist and extremely hostile to development, especially in the mountains, and that it commonly places onerous, restrictive conditions on property owners-such as limiting house sizes to less than 2,000 square feet of floor space. Some owners then abandon their plans; others simply bite their tongues and capitulate, hoping to salvage some value from their land. “The county sets it up to create conflict, and in fact encourages conflict. It’s a very divisive process, and it doesn’t need to be,” Probst says.

While the county and Guercio have been working on his plan for several years, the public took little notice, possibly because public hearings were not held during the negotiations. While some applicants suffer through multiple public hearings before the various commissions-in one case, more than a dozen-to build a home, Guercio has had just one public hearing before the Boulder County Planning Commission and one before the County Commissioners. His project, up for final action on Thursday, April 5, will almost certainly be approved at his second commissioner’s hearing, largely because if the county delays the decision it will jeopardize the finalization of the open space conservation easement sale, which is scheduled for closing on April 10. Probst, with some admiration, says Guercio is being a canny businessman and is holding the open space dedication hostage to the development approval, something few homeowners have the luxury of doing.

Jim Burrus, media information officer for Boulder County, disagrees. “Everybody is equal in terms of how the county deals with them,” Burrus says. “They take an application, they look at it and they say ‘what’s the best outcome that can happen with this application?’ In the case of Caribou Ranch, we’re faced with a proposal where, by right, this gentleman can build more than a hundred homes which would have a much greater impact than the alternative, which is to build 27 homes and donate many acres to open space. In the county’s eyes, we definitely want the lesser of the impacts.

However, complaints about the county’s abusive tactics are not unfounded. County critics say an egregious example is Liz Weed, who wanted to build a modest, environmentally friendly house on her 12-acre Sunshine Canyon mining claim. When she tried to get approval to build a road to the house site, the county staff recommended against it. After three public hearings with the commissioners, she was convinced that her application would be denied and that it was fruitless to proceed.

“She wanted to build a modest house at the end of an anything-but-modest road,” Danish says. “We said that we would approve a lot, but much closer to Sunshine Canyon. We’d approve a home site at the end of the road that goes in there now, which is a couple of hundred yards in, rather than one way out another thousand yards on down where she wanted to do it.”

But Boulder Weekly’s review of Weed’s application shows that her property doesn’t extend to the end of the existing road, or anywhere near it. It’s a long, narrow mining claim that begins nearly a mile from the county road and several hundred yards beyond the end of the existing road. There are several intervening private parcels between her property and the road, as well as Bureau of Land Management parcels. The location of the proposed road was the only possible place it could be built. There is no alternate access. More puzzling is the staff recommendation that the house site be approved, with conditions, near the end of the parcel farthest from the existing road, but that the road be denied. For fire and health safety reasons, county land use regulations require vehicular access to residences. This raises the question of whether or not the staff recommendations violated the county’s own land use code. Guercio, on the other hand, will be building several new roads, and abandoning some existing ones, to serve his estate subdivision.

A house cleaner by trade, Weed exhausted her meager finances and her emotional health in the process; she put the project on hold, afraid she would be drawn into an expensive lawsuit if she sought final approval and the road was formally denied. Unfamiliar with the process, unable to afford a staff of expensive professional planners like Guercio’s, and getting no help from the county, she asked that the application be tabled indefinitely rather than proceeding with the final public hearing for a decision by the commissioners. And that’s where it ended. “I’ve moved on. I had to. I don’t like to fight, and it wasn’t worth it anymore,” she said. “I don’t even care anymore, I’ve just let it go.” She plans to sell the land and move out of state. “It was meant to be for me, you know. I could not live up there now, and I guess it was all meant to happen this way.”

This treatment of citizens infuriates members of the Land Use Coalition, and it’s reason the group was formed. “The only difference between Liz Weed and Jim Guercio is about 40 million bucks,” says Boulder attorney and LUC member Ann Mygatt, who has had her own battles with the county. The coalition, made up of a sociopolitical cross-section of Boulder County, includes members of just about every political stripe. Mygatt describes herself as a dyed-in-the-wool “tax and spend Democrat.” “I think 90 percent of the people in this county are in favor of open space and would approve of whatever it takes to prevent any new development,” she says. “It never even crosses their minds that somebody else bears the costs. They don’t know about it, they don’t think about it. I was one of those people up until two years ago. As far as I was concerned, whatever the commissioners had to do, even if that meant crushing a few landowners, if that’s what it took, okay, fine. What changed my mind was finding myself in the process. It felt to me like someone was going to take my 401k and turn it over to the county.”

Probst concurs. He describes his encounter with the Land Use Department as “a humiliating, degrading experience.”

LUC members say that many citizens are flatly afraid to speak out or criticize the county out of fear of retaliation. Several sources refused to speak to Boulder Weekly on the record for that reason. “I’m sorry that anybody would feel that way,” Burrus says. “I can only assure the public that the county does not go out and retaliate against people. If somebody has a concern, and if they want to voice that concern, there’s a woman that works in the commissioner’s office who functions as an ombudsman. She’s our constituent services liason, Marianne Reichert. She deals with people who have a problem with any department: health department, land use, open space, whatever.”

The LUC claims that unlike Guercio’s self-admittedly pleasant experience, negative experiences with the land use department are hardly unusual. In 1999, the coalition commissioned a survey of more than 1,100 people who had been through the county’s site plan review process. Of the 163 people who responded, 79 percent of them made “only negative comments,” 9 percent made “only positive comments,” and 10 percent “made mixed negative and positive comments,” according to the LUC’s website (landusecoalition.org).

“Over 100 people (nearly two-thirds of respondents) took extra time to write additional comments,” coalition literature says, “The numbers generated from answers to the questions reveal only part of the story. Those who were moved to write additional comments present a more intense picture. Some who rated the process fairly well made additional comments that were harsh and negative.”

The county dismisses the LUC’s study as unscientific and not reflective of the true feelings of the majority of applicants, noting that the response rate to the LUC’s questionnaires was only 16 percent. The county believes that most people are treated like Jim Guercio and that acceptable compromises are reached in most cases. While it’s not possible to draw any precise or universal conclusions from either side’s claims, there do appear to be some significant issues about the county’s land use regulation processes that need scrutiny.

Burrus doesn’t entirely disagree. “There’s a very, very, very small minority of people who deal with the county in a site plan review that have not been happy with the outcome,” Burrus says. “Could it be better? Possibly. Certainly. I think that every organization can improve and do a better job. Are we actively pursuing that? Yes, yes we are. We are working on getting feedback from people who go through the process and we want to make that a continually improving and better process for the public, in general.”

But Burrus isn’t so charitable in his opinions of the Land Use Coalition and its examples of abuse. “Personally, I think it’s bogus grasping at straws. They have taken basically three or four people who are upset with the outcome that they had in the site plan review process and made them all poster children for some fabricated larger problem that does not exist,” he says, “We don’t screw-over dozens of people a year in our site plan review process. That’s not the case.”

Probst is amused by Burrus’ derision. “Years ago, before the Land Use Coalition, I think that there was encouraged in the staff a confrontational attitude that ‘we know better than you, and we’re going to get you to do what we tell you to do,'” he says, “Since the LUC, and other folks too, have been taking a stronger position, the staff is very much trying to work to solve problems rather than create problems.”

One of the major complaints critics have is the degree of deference that the county-in particular the county commissioners-give to complaints by the neighbors of planned projects.

“I think personally, it’s really politics,” Probst says. “It’s putting politics before people. They try and do things that will engender the most support from their base, which, as we’ve seen from the election, is here in the City of Boulder. It’s the folks who live in the City of Boulder but want to be able to see pristine mountains, and lots of open space. Well, I understand that’s who gets them elected, and they are doing what they can to do the things that will make those people want to re-elect them.”

Burrus doesn’t deny that neighbors have a significant impact on the decisions made by the commissioners. In fact, he sees it as a positive feature of the process. “It’s not so much the county’s vision necessarily, it’s the neighbor’s,” he says, “What somebody builds on a mountain piece of property has a huge impact.” “Neighbors have rights too.” Danish says in response to complaints that neighbors have too much say in the review process.

But this begs the question of what rights, exactly, neighbors have when it comes to controlling activities on property they don’t own. Few would suggest that a neighbor has a right to dictate what color someone’s house can be, or whether it can be built in front of his view of the mountains, or that he has a right to deny someone the right to build a house at all merely because it would be a “visual blight” to him. Such interference by one neighbor upon the other’s right to use and enjoy his property has little foundation in law. Yet that’s precisely what the county routinely does during site plan review, as factotum for neighborhood objectors. This raises the philosophical question of where the county’s authority to regulate such matters comes from.

“If the neighbors don’t have that right, how can that power be granted to the county?” Mygatt asks.

Both Probst and Mygatt concede that neighbors do have some rights over neighboring uses. They don’t deny that neighbors have a right to expect no direct harm will be done to their property by adjacent landowners. One isn’t allowed to pollute the groundwater or create landslide hazards which would export harm onto someone else’s land. The county can properly exercise its authority to regulate uses to prevent such harms. But even those rights have limits, say county critics, particularly where potential harms can be mitigated through good engineering and construction practices. Where engineering can mitigate the potential harm, the use shouldn’t be denied, they say.

For example, both the state and the county seek to support traditional agriculture, and have adopted so-called “Right to Farm” policies, which deny to agricultural neighbors the right to prevent annoyances that occur during ordinary agricultural practice, including dust, odors, insects and noise. Mygatt and Probst want this concept extended to residential uses, which they feel have certain impacts that are a natural, ordinary consequence of development which should be non-controversial and not subject to the veto power of the neighborhood… or the county, including the mere visible presence of a home.

“The neighbors don’t own the view,” Mygatt says. “The property owner does.”

But in Boulder County, aesthetic and visual “impacts” are often given enormous, and some say inordinate, highly-subjective weight in approving or denying projects. The county’s failure to distinguish between objective, fact-based regulations such as “thou shalt not dump polluted water into a stream,” and subjective aesthetic judgements such as “thy house is ugly, remove it from sight,” is where Boulder County seems to get into trouble with its citizens and the LUC.

“There’s no question that the primary conflict area and the primary motivation is aesthetics,” Probst says.

County officials disagree that there is any agenda to deny people their right to build a home. “People who are applying don’t always initially want the same things that the land use and parks departments are looking for, but we find compromise and we find ways to make it a win/win situation,” says Mendez. “There are people who come in here who want to build 20,000-square-foot homes,” says Burrus. “The commissioners leave them with ‘nope, you can’t go build that home, it has to be this big and over here, so it doesn’t impact all your neighbors.'” But not in Guercio’s case, says Probst. The Caribou City project will include the right to build homes as large as 10,000 square feet in size.

Propst finds the exceptions being granted to Guercio galling and hypocritical in the face of the county’s usual draconian restrictions on building footprints in the mountains.

“If Jim Guercio’s subdivision was limited to 1,200-square-feet per lot, he would never build it,” Propst says.

Critics question whether the county’s, or the neighbor’s vision should prevail over the vision of the landowner. They point out that the people who are complaining were most often exempt from such regulations because they got here first. It’s unfair and hypocritical, says Probst, for people to object to new development if their own development hasn’t been subjected to the same degree of scrutiny.

There is also an argument that the kinds of specific, detail- and design-oriented scrutiny the county typically engages in is a violation of the First Amendment. The argument says that architecture is art, and that art is “expressive speech,” both of which are protected by law. “Oh, absolutely!” says Probst. “I think that for most people in this country, their private residence is the largest investment and the number-one expression of themselves, and therefore should be protected as an artistic expression.”

Danish says that the commissioners understand this concern, and that they try hard not to dictate architectural decisions except as necessary to achieve what they feel are legitimate concerns that have a rational basis in the law. But critics argue that the standards which must be used are much higher than a simple “rational basis” test, which applies to most zoning law. The test, they suggest, is a “strict scrutiny” test which requires that the county have a “compelling interest” in regulating the protected activity.

But to what extent does the county have a compelling public interest in controlling the aesthetics of private homes?

The discipline of architecture traditionally includes not just the design of the structure, but the building’s relationship with the land. This brings into question the qualifications of the commissioners, and even the LUD planning staff, to make such decisions, since they are not trained architects. Probst and Mygatt, among others, argue that a landowner’s right to expression through architecture ought to generally supercede any objections by neighbors or the county based only on the visual impacts of the development.

“There is a point where the community’s interest begins to exist, but that should be decided in the courts, by those who feel their rights are being harmed and the individual doing the building,” Probst says. “Let the courts sort it out rather than getting government into defining what is acceptable architecture.” Burrus poo-poos this argument.

“The Supreme Court has upheld decisions that say governments are right in taking those elements into consideration when making land use decisions,” he says. Probst sharply disagrees that the aesthetic concerns of the neighbors should be given credence. “(The Constitution) sets a pretty high standard. The reason it’s the First Amendment is because it’s the number-one source of our freedom. Without the right of free speech, all the other rights are in peril. For the county to claim the right to infringe on that is, I think, very serious.”

Guercio doesn’t have to worry about it though, because the county is quite pleased with his Caribou Ranch design guidelines.

Northwest of Nederland, far from the madding crowds of Los Angeles, Jim Guercio built a recording studio that became the object of desire for some of the ’70s most famous musicians. He had already established himself as one of the industry’s long ball players, with an extensive history of playing and production credits extending back to the Buckinghams in the mid-’60s, including the Beach Boys, Frank Zappa and especially Chicago, whom Guercio managed from their days as an obscure L.A. club band to mega-stardom through the ’70s. Although he is rightly regarded in the rock annals as a top flight producer, successful manager and owner of one of the best recording facilities in America during this period, he is still cheerfully remembered in the press as “ex-Beach Boy Jim Guercio,” having filled in on a few early-’70s Beach Boy tours.

Funny, sometimes, the things that stick…

Caribou Ranch was as much spa and mountain retreat for rock superstars during the seventies as it was a place to work. Several comfortably attended cabins dotted the grounds around the studio, which Guercio built inside a renovated barn. The relative proximity of the posh guest cabins-as well as the gated privacy-led inevitably to wave after wave of rumored substance-inspired madness.

Guercio brought the creme of rock super-stardom not just to Caribou, but to Nederland and Boulder as well. You could be walking down Pearl Street one day and pass Mick Jagger or Don Henley or Joni Mitchell or Bernie Taupin, and that was only because Caribou was just up the hill.

The lasting legacy of Caribou, of course, is some of the best-recorded work from some of the best rock players in the ’70s. Chicago cut several of its biggest early hits there. Stephan Stills recorded his timeless and still-fresh first solo album at Caribou, and Elton John recorded three massive-selling albums there. When you hear Joe Walsh’s immortal “Rocky Mountain Way,” guess what his view was.

Lesser known artists also worked there, like George Duke, the German prog outfit Lake, Jan Hammer and Supertramp- who’s arguably best LP Even In The Quietest Moments features a picture of a snow-draped piano outside Caribou. Lead singer Roger Hodgson, in search of that perfect vocal take, actually recorded part of one song in a freight elevator.

Rumor has it that Caribou had more platinum albums hanging on its walls than any other studio in America. When the studio, along with many irreplaceable master tapes, burned in 1985, a piece of rock history danced skyward on its fading embers. Caribou, the Legend had passed into history as one of rock and roll’s greatest places, surrounded by one of the greatest places on earth.

Originally published in the Boulder Weekly April 5, 2001

The Internet Of Things Is A Cyber-Disaster In The Making

By Scott Weiser

The world has become economically dependent on the Internet. The ability to connect and share information is essential to the functioning not just of economic markets but also of government itself. As computer technology advances we as a society become ever more dependent on an Internet of things that extend far beyond our home computers and laptops. Everything from automobiles to zoos are web-connected today and those connections multiply exponentially as new connected devices are invented and marketed.

The Internet of things (IoT) is certainly a convenience to us all, but it’s also a pathway to chaos for cyber criminals and enemies of the United States. Eric Lieberman, technology and law reporter for The Daily Caller tells of an unnamed university that was hacked through its light bulbs and vending machines.

By exploiting insecure IoT web-connected devices hackers tried to lock out university administrators from their network by attacking some 5000 IoT devices whose security programming doesn’t begin to be adequate. This is just one of thousands of examples of the vulnerability of our computer systems that can cost hundreds of thousands of dollars to repair.

This is not an abstract threat, it’s a concrete one that grows with every day that passes. One of the latest tactics is cyber-ransom, where a hacker infiltrates a system and encrypts all of the data and then demands a ransom to provide the decryption password. Many, if not most of these kinds of attacks are the result of poor device security procedures that are aided and abetted by manufacturers who either don’t care if their customers get hacked or who, in some cases, actually want our nation to have an insecure network.

Many of these devices are made in China, where manufacturers have no incentive at all to provide for U.S. computer security. Indeed it can be argued that the failure to adequately secure such devices is not accidental or negligent but intentional, facilitated by our weak cyber security laws and our own individual laziness.

Nobody likes complex, hard to remember passwords but it can no longer be an option for consumers to ignore the potential that their devices may be used to harm others. We must all be required to do what is necessary to keep the Internet secure whether we like it or not. Our convenience is no longer a paramount concern, national security is.

We know that China and other enemies of the United States have been attempting to infiltrate, suborn and attack our computer systems quite literally since the moment computers and networks were invented. Intelligence agencies know this and expect it, which is why it’s against federal law for government employees and agencies with access to classified materials to use any computer system other than the carefully designed and rigorously-secured government computers and networks, something that former Secretary of State Hillary Clinton was evidently to bone-headedly dense to understand.

We saw the wages of her disdain for computer security and her utter disregard for national security in the persona of her bathroom email server.

A solution is needed to combat the potential for devastating national security harm caused by widespread cyber attacks using the IoT. One way of improving IoT security is to pass laws that prohibit manufacturers from selling insecure devices and holding them liable if they do.

The exploit most often used with non-computer devices like vending machines, washing machines and other non-traditional computers is default passwords. For reasons of national security it is no longer sufficient to simply provide the capability for a user to change the default password when it’s put into use, manufacturers must be legally required to make it impossible for any such device to access the internet unless and until the default password has been changed by the user.

Further, the programming used to change the password must be required to allow only secure passwords not simple ones like “password,” which was the ridiculously inadequate one that brought low Clinton’s campaign chairman Jon Podesta.

Internal hard-coded password generation algorithms that meet strict standards set by the U.S. Government for self-generated randomness and encrypted impenetrability from the Internet should be mandatory for all Internet-accessible devices. No longer can users be allowed to negligently create insecure passwords that can be easily guessed or discovered by brute-force password cracking. Limits on the number of incorrect password attempts before the device’s Internet access is physically shut down and must be manually reset by the user must also be required.

The nature of the attacks in The Caller’s article were denial of service attacks (DOS), which attempt to overwhelm system servers with many irrelevant requests sent by thousands of devices. To help prevent such attacks, all IoT devices must also be required to have hard-coded safeguards against being used to generate many requests in a short period of time. Most IoT devices have no legitimate need to generate dozens of requests per second as a part of their normal functioning, and government regulations as to how often an IoT device is permitted to send such data packets, and for how long it may repeat those requests without connecting to an authorized server must be promulgated and enforced. If a device is compromised and the internal hard-coded safeguards are triggered the device must automatically shut down its Internet connectivity until it is manually reset (and the password changed) by the user.

The final component of IoT cyber security regulations is making the manufacturers of such devices liable for all damages caused by their failure to properly secure their devices. Allowing both the government and users who suffer damages caused by weak built-in cyber security to sue manufacturers for both actual and punitive damages will go a long way towards the goal of preventing a catastrophic cyber attack on this nation that could easily cripple our essential computer infrastructure and cause untold economic harm.

Originally published in the Daily Caller

Taxing Religious Freedom

By Scott Weiser

Is a threat to eliminate the tax exemption of churches that endorse candidates or political parties posed by a 1954 law called the “Johnson Amendment” a constitutional infringement on the rights of church leaders to freely express themselves from the pulpit?

At ColoradoPolitics.com, Deb Walker, executive director of Citizens Project writes, “Government may not subsidize political endorsements through tax exemption,” and that “The Johnson Amendment ensures that citizens of all faith traditions (or no faith tradition) are not inadvertently financially supporting church-based politicking.” There are two failures in reasoning here.

First, the reasons for exempting churches from taxation are distinguishable from those that apply to other types of charitable organizations. Whereas the law may exempt secular charities because it deems that the charitable purposes provide public benefits that outweigh the need to tax such activities, the principle of not taxing churches originates in the constitutional, philosophical and political foundations of our nation.

The Supreme Court examined this principle in Everson v. Board of Education, a 1947 case affirming the authority of a state to provide funding for school busses to transport children to Catholic schools in New Jersey writing, “The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. These practices of the old world… began to thrive in the soil of the new America…Catholics found themselves hounded and proscribed because of their faith…men and women of varied faiths…were persecuted. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches.

The people [of Virginia], as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax…[in order to] interfere with the beliefs of any religious individual or group.

The ‘establishment of religion’ clause of the First Amendment means at least this…no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

This sounds as if the Court would hold that New Jersey has no authority to provide taxpayer-funded school busses for Catholic schoolchildren, but that’s not case. What the Court pointed out in affirming that policy is that “the amendment commands that New Jersey…cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” (Emphasis in original)

The second error is that a tax exemption is not a subsidy. An exemption from a tax is not giving the person or group exempted something they don’t already have. Neither a taxpayer not affiliated with a religious organization nor the government has something taken from them that goes to a church merely because the church doesn’t pay a tax. Therefore, a tax exemption does not mean that the public is “financially supporting church-based politicking”, nor does it mean that the government is entangled “in underwriting partisan political activity.”

Where the Johnson Amendment and Walker go wrong is in failing to understand that when it comes to religion the taxing power of Congress has a constitutional hurdle it must overcome that doesn’t apply to conventional non-religious charitable organizations.

The historic truths cited by the Supreme Court stand for the proposition that the government cannot tax religious institutions in ways that inhibit the free exercise of religion just as much as it does the proposition that it cannot tax anyone for the purposes of advancing religion.

Thus, when it comes to religious institutions it’s questionable whether or not the 501(c)(3) rules apply at all because it is the First Amendment itself that arguably prohibits the taxation of churches because religion-suppressing taxation has always been as formidable an enemy of religious freedom throughout history as religion-supporting taxation has, as the Supreme Court points out and as the Founders went to great pains to avoid.

Religiously motivated speech is a constitutionally protected aspect of religious liberty that cannot be suppressed by the threat of anti-religious, anti-free-speech government taxation. This includes the freedom of both ministers and others to preach in favor of or against any political party or candidate or any other matter that they believe would either threaten or support their rights to religious freedom.

Originally published in the Daily Caller

Political Islam Is Incompatible With America

By Scott Weiser

What is “religion” and what aspects of religion does the First Amendment protect? This is a question that our leaders and our society are reluctant to ask. We see frequent recourse to the text of the Constitution itself where it says “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof” but there is precious little debate about what the word religion actually means in that context.

The Founders were determined to broadly protect an individual’s right to believe whatever he wishes, but at the same time they were cognizant of the risks of too broad an acceptance of how people might choose to put their beliefs into action.

James Madison remonstrated in 1785 against Virginia’s attempt to pass a law providing for government support of “Teachers of the Christian Religion,” writing “we hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’”

In Cantwell v. Connecticut, the Supreme Court described this principle with greater precision, writing “Thus, the Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.

It is clear that our laws distinguish between religious belief and religious practice, the former being a matter of conscience that is absolute, unalienable and not subject to government control, and the latter most certainly being subject to reasonable time, place and manner regulations in the public interest. This is why polygamy is unlawful as is the practice of human sacrifice and religiously motivated rape of children that landed pedophile Warren Jeffs in prison for life notwithstanding his religious belief he was entitled to “marry” twelve year-old girls.

With this important distinction in mind we now may address the conundrum of the duality of Islam that has for too long rendered us impotent to control the fundamentally evil practices that threaten the very foundations of our nation. What we can now do is to distinguish religious Islam from political Islam and address each separately within the context of the Constitution and the First Amendment.

Religious Islam is what Muslims believe with respect to their deity, their prophet and their desire to live a certain way. Political Islam is how they propose to impose their religious beliefs upon others.

The former is entirely up to Muslims to determine. What they believe and how they choose to worship among themselves is well protected by the First Amendment, as it should be. The latter is another matter entirely.

Nothing in the First Amendment prohibits Congress or any lower level of government through the 14th Amendment from regulating acts performed by Muslims in pursuit of their religious beliefs where such acts impinge on the rights of others to be free of force or violence. And this extends to engaging in seditious conspiracies to overthrow the government and replace it with political Islam.

This is an essential distinction that is almost universally ignored in the debate about how Islam might integrate into our culture peacefully. Say “Islam” or “Muslim” and people tend to automatically conflate the religious beliefs and the political practices into one monolithic thing that either can be prohibited or cannot be prohibited depending on which side of the issue one stands.

But this is simply not the case. Defining and setting political Islam apart from religious Islam is not only appropriate, lawful and necessary, it is the only way to protect that which our American ideals value with respect to freedom of religious belief while simultaneously protecting our American values with respect to offensive and dangerous political ideology and practice.

Just as it is lawful to prohibit the entry of Communist aliens to the United States because Communism is inherently dangerous to American society and principles, it is most certainly lawful to prohibit entry of political Islamists whose political values and practices are antithetical to the culture and values of the United States. That some Muslims argue that religious Islam and political Islam are one and the same and are inseparable, as many Muslims of the radical variety do, is not relevant to whether or not the United States has the authority to ban adherents to political Islam without infringing on their right to whatever religious beliefs they choose to hold.

All the United States needs to do is make it clear that admission to the United States by foreigners who advocate or practice political Islam is prohibited and say nothing about the religious beliefs of Muslims.

To do so the government need only carefully define what “political Islam” means in law by specific reference to political and social behaviors and practices that would be detrimental to the United States and its system of laws and rights while also explicitly stating that Islamic religious beliefs are in no way to be used as criteria for denying entry. After that definition it’s easy: “No person who practices or advocates the practice of Political Islam shall be eligible for admission into the United States.”

This puts the President and the Congress in the same position it holds with respect to any political beliefs on the part of potential immigrants that stand contrary to our own, like communists, which is that such persons may be refused entry under Congress’ plenary powers over immigration because they are dangers to our society.

Originally published in the Daily Caller

Midnight Rainbow

It’s hot. Real hot. The August sun blazes in a cloudless sky, reflecting off the stony shale bank, baking my left side while its reflected heat blazes off the placid, dead calm surface of the Missouri on my right. Hold up a hand against the glare and feel the heat toasting my palm. Even the air is hot. Not a breeze, not a breath.

Ninety-five said the savings and loan display in Helena as we headed towards Wolf Creek, and add at least 10 degrees to that as the afternoon heat reaches its climax. Add another couple of degrees of radiant heat from both side of this bake-oven-with-a-view and you have mad-dogs-and-Englishmen weather. Or in this case, sexually-aroused-Caddis-and-Fly-fishermen weather.

The trout have better sense, sliding up and down, back and forth in the cool, green depths of the Missouri, gently sipping a late lunch out of the surface film. Up for a bite, back down to the shaded, weedy bottom. Up. Down. Up. Down. In rhythmic hypnomy. Maddening hypnomy.

“Further above him, and a little close to the bank,” says Peter, from his perch on the culvert sticking out of the bank above and behind me. I false-cast out into the river, measuring my cast carefully and then aim for the slot two feet from the rocks and bushes 40 feet upstream where the trout slides up and sips another emerger.

“Tink” goes the fly on the bush behind me, “Splat” goes the fly line and leader on the water right on top of the arm-length piscine diner, like some ham-handed busboy upending a tray full of plates on the table. “Well, he’s down, my turn.” says my friend and fishing mentor, so I slip and slide downstream along the precipitous shale bank to see if I can find my fly while he does the same upstream, heading for the next pod.

It’s hot. Real hot. I, however, am not.

It’s a far cry from my first fishing trip to Montana. That time neither the weather nor I were hot. We were both cold. Real cold. A dozen years ago and later in the year, I said to Peter one day:

“Want to go to Canada?”.

“I’d love to, but I can’t afford it”

“That’s not what I asked.” says I. “I want to go to Glacier and Jasper National Parks and take some pictures, do you want to come along, my treat?”

“Let’s mosey,” says he.

A few years earlier, having come into a small inheritance, I’d solicited friends (and a couple of very cute casual acquaintances) to join me on a six-month tour of Australia, all expenses paid. Everybody said “you bet!”, but when told “We’re leaving September 20th,” all came up with some excuse why they couldn’t go. So I bought an airplane instead.

I loved that Maule. Take off on a postage-stamp, land on a dime. I spent a good many hours knap-of-the-earth over the western US, enjoying the scenery up close and personal in N332X, till I made that one little error and bent it beyond repair. But, being a Maule, she sacrificed herself saving my life. An honest and honorable airplane. Well, anyway, I had a bit of the insurance money left over—not enough to replace her, but enough to take a hell of a road trip. So we did.

“Now, this is a photographic expedition. I’m going to take pictures, but if we can, we’ll squeeze in a little fishing for you. Understand?”

“No problem.” said Peter.

Yeah, right. A legendary trip in itself. Bad weather all the way. Blown off the Henry’s Fork, the Snake, Big Hole, Boulder, Flathead and just about all of the famous fly-fishing waters of the west. Skunked. Nada. Zip. Not one single fish. Drizzle, rain, wind, wet-cold vinyl waders and oversized jungle-boots as wading shoes. “Rustic” motels with heaters leaking natural gas, toilets jammed in next to showers so tight you’d have to be Dr. Ruth to even sit down, and bedsprings that shrieked in protest at the slightest movement. Still, by West Yellowstone I was well and truly hooked. Upper lip, great big barb, ship hawser for tippet. Seven hundred dollars later we both left Dan Bailey’s in new neoprene, me with every gadget I could find except a fly rod and reel. A frigid, rain-soaked week later I caught my first fish ever on a fly-rod. Arctic Grayling from a spectacular lake somewhere west of Glacier National Park.

It’s a long way, temporally, from there to here; the very antithesis of that seminal excursion. I’m basting in my own juices, blowing mad Caddis out of my nose and from behind my glasses, casting to huge fish with the perceptions of a telepath. The result is much the same though. Skunked. Nada. Zip. They’re too wily for the both of us this afternoon. But, the story isn’t over yet.

“Let’s mosey” says Peter.

“Works for me.”

We scramble up the bank (you ever notice how you never have a climbing rope and a set of ascenders when you really need them) and take one last look at the three or four pods of enormous fish greedily slurping down bugs up and down the bank 50 feet below us.

Into the truck, pat the dog, who’s perfectly comfortable (he’s parked in the shade with a wet bar right beside him) and happy to lick the sweat from my right cheek. Downstream we head, peering at every turnout and stopping occasionally to check a favorite lie for rising fish. Not much going on though, so we head to a big bend where we’d had some success the day before.

Corps of Engineers reclamation efforts can be ugly as sin, but the trout love them. The bank had been stabilized with jute and nylon mesh, and long fingers of rip-rap pointing upstream, each topped with a huge root-wad from a tree. To stay below the high-water mark makes for a chancy hike on a 40 degree slope covered with slippery fabric, but the rewards are worth it. Look down and you see the Corps of Engineers at work. Look up and you see Bierstadt’s or Remington’s. Look down again and see a juvenile marten curiously and hilariously working his way down the bank towards me, ducking in and out under the edge of the jute, hiding behind weed stems and peering between grass blades like Arty Johnson. He slinks by, about six inches from the toes of my boots as I stand quite still and chuckle at him, and makes his way downstream.

It’s cooler here, the sun is going down now and the breeze is up a little, but the record-breaking wet spring has brought a record breaking crop of mosquitoes. Smart enough to spend their time in the shade in the desert heat, now that it’s cooled off, they make up for lost time with a vengeance. So, I slather on the DEET and hope I don’t melt anything important.

Another hour or two of fishing in the eddies behind the stonework, this time with some success, a couple of lively browns for each of us. The view just gets better as the sun sets, and I start wishing for my camera instead of my fly-rod.

“Let’s mosey.”

“Works for me.”

Now for the main event. Everything before is just a warm-up for this, and the action doesn’t even start till the sun is well off the water, and doesn’t heat up till the stars come out. I stake out the spot while Peter noodles off upstream to look for a pod of early risers for a couple of warm-up bouts. Good thing I need a break, because as twilight comes, so do the bait-casters, roaring up in their pickups and roaring away, frustrated, when they see me fiddling with flies and tippets at their favorite meat hole. Make no mistake, it’s a meat hole. It’s chock full of trout, big and little, some very, very big, and the locals all know it well. But these finny boys and girls don’t come out to play till after your kids are asleep in bed, and they party all night.

About the time you need a light to tie your fly on, unless you can do it by the reflection of the neon from the bar across the river, they begin coming up by the dozen.

“Slurp.”

“Bloop.”

A symphony of bug-sipping trout smorgasbord delectation going on up and down the bank in the dark. You focus using your ears and your experience. You might catch a glimpse of a rise reflected by the starlight, but even the best night vision isn’t up to more than trying to keep from stumbling and falling headlong into the river. No, it’s sound and kinesthetic sense, knowing just how much line you have out, and where your fly is going and when that “bloop” comes where your fly is, or should be. It’s an exercise in patience and skill that will make a better fisherman out of anybody. Have a problem with premature strikes? Try night fishing on the Missouri.

Tonight, it’s hot. Real hot. Hour after hour we cast, all our concentration focused on invisible rises, listening for the regular risers. There must be 50 fish rising in one spot not more than 50 feet long and 35 feet wide, in the little eddy behind the obstruction in the river. The sounds overlap and mingle till it’s a continuous melody of gustatory excess. Just cast and wait, cast and wait, cast and wait. Very Zen. Most times you don’t know you’ve caught a fish till you raise your rod to set up for the next cast. Then you know. The line screams off the reel as the fish heads for the tavern a quarter-mile away, and you begin to worry about your backing and how the hell you’re going to work your way along the bank fast enough to keep up in the pitch dark. Keep the tip up and reel in like mad as the fish bores his way upstream, shout in exultation as it turns and runs for the Mississippi, leaping invisibly and hitting the water in the night like a gunshot. Feel the power of the rod fighting the fish, every twitch and headshake magnified by the blackness, straight from the fish to your rod to your brain through the palm of your hand as you wait for the tippet to snap or the number eighteen hook to unbend into a straight-pin.

A heart-pounding ten minutes later, twenty inches of steel-bright Midnight Rainbow undulates gently in my hand, the first of many that night. I revive the weary fish and send him back to the dinner table, lit only by the tavern’s warm glow and the Montana night sky.

Tonight is the antithesis of a dozen years ago, and of this afternoon. My best fishing day ever. Though I’m perfectly happy to spend the day up to my armpits in senseless beauty and majesty, I fish perhaps more for the companionship and camaraderie than the fish. But tonight is special, it has it all. Good friends and great fish, the Milky Way, meteors and the Missouri.

Anathemas of Science

By Scott Weiser

The term “Intelligent Design” is a simple, clear label for a valid scientific line of inquiry that has been hijacked by religionists, decried as heresy by secularists, and declared anathema by an activist Federal judge.

The existence of intelligent design in the universe is an indisputable scientific fact. That you are reading this essay proves the point. The existence, nature, methods and results of intelligent Designers are indisputably scientific questions, as even the High Priest of Secularism, Richard Dawkins, somewhat reluctantly admits in his book “The God Delusion.” It’s arguable that the most important scientific question mankind faces is whether there is an intelligent Designer in the universe more sophisticated than humans, and if so, could it have deliberately acted to arrange or modify either the fundamental constants of the physical universe, the origin and evolution of life on earth, or both?

Modern human science proves that it only requires an intellect just a tiny bit superior to our own to create life, so why is it so unthinkable that such an intellect may have intervened in or directed Earth’s evolutionary processes? Such an intelligent Designer need not be omniscient, omnipotent, benevolent or even interested in the fate of humanity. Nor need it exist any longer. God may indeed be dead, but this does not mean that a Designer never existed or does not exist still. The search for clues of a superior, if not supreme Intelligent Designer is clearly a matter of science, not religion.

However, the intent and directives of such an entity, absent direct testimony from the source, and arguments of humanity’s obligations of obedience to or worship of such an entity, are religious questions. The former should be taught in our public school science classes, the latter should not.

But, in a keystone case from 2005, Federal Judge John E. Jones ruled that “Intelligent Design” is “not science” and may not be taught in public schools, ever. The error Judge Jones commits is exceeding his mandate to protect the Constitution. Instead of simply ruling that by acting with documented bad faith in a transparent attempt to inject Christian religious belief into the schools, the Dover School Board acted unconstitutionally. Instead, he decided to rule on matters of science that he is neither qualified nor authorized to render judgment upon. And in a show of bad faith on their part, the ACLU was delighted that he did so.

However poorly the witnesses for Dover may have presented their supposedly science-based arguments, the scientific fact remains that complexity in organisms may be the result of intelligent design. That evolutionary processes might have accomplished this unaided, which appears likely, but is unproven, is not disproof of intelligent design. Any credible scientist must always be looking for evidence of intelligent design in any object or organism, if for no other reason that to be able to rule it out. A triangular eroded rock and a manufactured obsidian arrowhead portend very different things, as do “natural” maize and artificially genetically modified corn. But Judge Jones has foreclosed future investigations by making the mere mention of Intelligent Design to our future scientists anathema and forbidden speech. This is not just bad science, it’s bad law, and it’s every bit as unconstitutional as teaching religious belief in science class. Children must be taught the whole truth if they are to move science forward when it is their turn.

The arrogance of religionists like the Dover school board who try to foist Judeo-Christian religious dogma onto our school children is exceeded only by the hubris of secularists like Richard Dawkins and the ACLU, who believe that humans know enough to proclaim that there can be no superior intelligence capable of creating or guiding life on Earth, merely because they do not yet have the intellectual capacity or technology to be able to observe, quantify, analyze or falsify it. In an astonishing role reversal, the secularists have become to the search for objective truth what the religionists were to Copernicus, and Judge John E. Jones is their Secular Grand Inquisitor.

It’s time for religionists to abandon their unconstitutional agenda of injecting Christian religious dogma into the science classroom, it’s time for scientists to reopen their minds and reject ACLU secular dogmatism, and it’s long past time for our children to be given the intellectual and philosophical tools and information they need so that they can render their own judgments.