Monday, April 27, 2009

Forget Torture, This Debate is about Who Sets Policy

The release of the torture memos has raised many issues and a lot of speculation. It appears that, at a minimum, that President Obama is taking steps to appease the far left of the Democratic Party, and at the extreme, he may be laying the ground work for criminal prosecution of career Federal employees and former Bush Administration officials.

The debate to date has focused mainly on two issues: what constitutes torture and was gathering intelligence that saved American lives justification for the actions taken. On the latter, I say absolutely, but the question of what is torture is much too subjective. For me, it is torture to watch the evening news; others clearly have the stomach for it and even enjoy it.

The real debate here is who sets policy and what is the difference between policy making, the Code of Federal Regulations, legislation, and case law.

I am a recovering policy wonk. When I served as a Deputy Assistant Secretary at the Department of the Interior, I took an oath to uphold the Constitution and comply with all laws and rules thereunder and I swore to fulfill the duties of the office. One of the principal duties was to help formulate and set policy. In other words, President Bush was elected President and accordingly he was to govern and my job was to help the Administration achieve its policy goals with respect to the Department of the Interior.

Here is how it works under the three branches of government established in the Constitution. Congress, the Legislative Branch, drafts ands passes legislation which becomes the law of the land. In so doing, Congress sets the direction and establishes the overarching policy direction of the United States. However, in nearly all circumstances, Congress does not provide enough detail for the law to be implemented, complied with, or enforced. Because the Executive Branch is responsible for implementing and enforcing the law, the appropriate agency promulgates regulations or rules for the implementation and enforcement of the law thus providing additional detail deemed necessary for the proper implementation and enforcement of the law enacted by Congress. Even though reading the detailed rules and regulations in the Federal Register is a guaranteed cure for any form of insomnia, these rules quite often leave a lot of discretion to Federal employees to interpret the rule under certain circumstances or facts and apply it differently. This wiggle room, if you will—this latitude left to the Executive Branch employee—is intentional. This is the realm of policy making. All rule making must be within the legal framework established by Congress, and subsequently, policy making must be consistent and the finer filter of the regulatory framework. If there are questions about whether a rule or regulation is consistent with the law, or whether a policy goes outside the legal or regulatory framework, then the Judicial Branch weighs in to make that judgment. Often times in the course of determining if a regulation or policy is legal, a Federal Judge will in their decision clarify or interpret what Congress intended when they passed the law. This results in what is called case law and it is yet another filter the Federal employee of the Executive Branch must apply when implementing or enforcing the law.

So applying all that to the question of torture, what we have here is a case of Federal employees acting under the appropriate direction of the elected President and his appointed policy makers. The experts in the field and the lawyers reviewed the law, the regulations, the case law, past practices (policies) during four previous wars, and they developed a policy that was in the end determined to be consistent with all the available frameworks. Then that policy was briefed the Chairs of the Congressional Committees of jurisdiction and received their approval.

It is the prerogative of any Administration to disagree with and change any policy; it is called governing. The spoils go to the victors, and in our case, the victors get to and should govern. The job of career Federal employees is to inform policy makers about the law, regulations, the successes and failures of past practices, and to assist the current Administration achieve their lawful policy goals. I have often said that bureaucracy is the keel that keeps the ship of state moving forward. Policy makers are a small rudder and are considered highly successful if the can alter the course of the ship of state by 10 degrees to the right or the left.

Theodore Roosevelt, before he became President, helped to establish the current system of civil service in order to protect Federal employees from whims of elected or appointed leaders and provide that important keel to the ship of state. It appears that it is the goal of the Obama Administration is to make career Federal employees or elected and appointed officials subject to prosecution because disagrees with the previously established policy. If successful in this endeavor, then the ship of state will become a ship without either a keel or a rudder, the Obama Administration will have consigned the United States to an inevitable ship wreck in the rough and turbulent seas of the world today.

Wednesday, April 8, 2009

Support Concealed Weapon Carry in National Park and Wildlife Refuges

I support and urge you to tell Congress that you support legalized concealed weapon carry by lawfully permitted people in National Parks and National Wildlife Refuges. A recent Federal Regulation that allowed concealed weapons to be carried by people with permits in States where concealed weapon carry is legal was overturned by a Federal Judge in Washington, D.C. Now, two bills have been introduced in Congress to make it lawful for people with concealed weapon permits to carry their guns, just like you can on other public lands.

Virginia and other States allow concealed carry in State Parks and crime and/or shooting incidents has not increased and visitors are not threatened or scared.

Concealed Weapon Permit holders subject themselves to investigations and hold themselves to a higher standard of the law--they are not the problem, criminals are the problem.

The argument that Parks are safe places cannot be substantiated by the National Park Service and is wishful thinking. Parks have drugs, drug dealers, criminals on the lamb, domestic violence, and robberies--all the same crimes you find outside Parks. If Parks are so safe why are there so many armed Rangers, why are there robberies on the National Mall, and why does the NPS need to operate their own jails in some National Parks?

Law-abiding citizens have the Constitutional right to self defense and prohibiting concealed carry only in these limited areas, especially on National Parkways and Park roads that are regular commuter thoroughfares, makes it a "Gotcha" regulation for law-abiding citizens that is unfair and unconstitutional.

And don't be fooled into thinking criminals are not carrying weapons in Parks and Refuges. There are armed and dangerous criminals in nearly every Park and Refuge almost every day.

I urge you to contact your Senators and Congressperson and tell them to support S. 816 or H.R. 1684 and ask to hear their position on these bills. You are welcome to use any or all of this post in your correspondence.

Tuesday, April 7, 2009

World Heritage Sites are not under UN control

In her Op Ed piece on March 30, 2009, in the San Francisco Examiner, Cheryl K. Chumley asserted that the “UN is taking control of U.S. land in the name of conservation.” She goes on to state so many other factual errors about the World Heritage Convention that I am compelled to respond and set the record straight.

Ms. Chumley is alluding to the announcement by the US Department of the Interior that the United States of America has revised its list of sites that may be nominated by the USA to be considered for inclusion on the List of World Heritage.

I was a Deputy Assistant Secretary of the Interior from 2002 to 2008, and in that capacity, I had the distinct privilege of leading the USA Delegation to the meetings of the World Heritage Committee for five years, getting the USA elected to the Committee, and I am well versed in the World Heritage Convention, the Operating Guidelines, and the Rules of Procedure. The Convention, which the USA helped author and was the first signatory, is administered through the United Nations Education, Science, and Culture Organization (UNESCO) by the 21 State Party Members of the World Heritage Committee. The USA remained active in and on the World Heritage Committee even during its 20 year hiatus from UNESCO. When under President Bush’s leadership the USA rejoined UNESCO, I worked closely with UNESCO Ambassador Louise Oliver on matters related to World Heritage.

I led the effort to have the Committee remove Yellowstone National Park from the List of World Heritage in Danger and I paved the way for the eventual removal of the Everglades National Park from the same list. I was involved in the rewrite of the Operating Guidelines where the USA and its allies made a strong case for the sovereignty of State Parties as articulated in the Convention.

Inscription of a site on the List of World Heritage does not in any way, shape, or form transfer ownership or control of the site to the United Nations or UNESCO. It is an acknowledgment of three things. To be inscribed, a site must have 1) Outstanding Universal Value (OUV), 2) it must have an established legal structure to conserve or protect the resources, and 3) the site must have an established management plan. “Outstanding Universal Value means cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole. The Committee defines the criteria for the inscription of properties on the World Heritage List.” (Operational Guidelines, IIA, Paragraph 49)

The only way that the Committee can exert any pressure on a State Party regarding conservation or management of a site is to do one of two things. First, the Committee may vote to put a site on the List of World Heritage in Danger which makes international assistance and money available to the site owner in order to remedy the issues identified by the Committee, or secondly, the Committee may vote to remove the site from the List of World Heritage if it has been determined that the site has lost its OUV.

I also initiated and led the multi-year effort to develop the new USA Tentative List to which Ms. Chumley refers. This is the list of sites that the USA considers to have Outstanding Universal Value and that may be nominated by the USA for inscription on the List of World Heritage. A Tentative List is required by the Convention and the previous USA Tentative List had over seventy sites. Our goal was to substantially reduce the number of sites on the list and confine those properties listed to sites that had the support of the owners, the local community, and local leaders. These sites were not put forth by the United Nations or UNESCO. The sites were submitted by the owners, underwent a rigorous review process, required written documentation of local support, and were publicly vetted.

While the World Heritage Committee and certain of its members have from time to time tried to exert excessive influence on the management of sites and have even tried to impose “buffer zones” around sites, the fact remains that all World Heritage Sites remain exclusively under the control of the property owners and the laws of the nation in which the site is located. I am a strong proponent of private property rights and I have worked to ensure that these rights are protected throughout my tenure at Interior. For the USA, most World Heritage Sites are Federally-owned properties, but there are today a few State-owned, Tribal-owned, and privately-owned World Heritage Sites in the USA. The owners of those properties remain in control of the site and there has never been a documented sighting of blue-helmeted soldiers or black-helicopter operations at any World Heritage Site in the USA.