No jihadists to Supermax, continued

Seems I hit a nerve with my post about Gov. Ritter's collision with international law if Gitmo prisoners are moved to Colorado SuperMax. Indignant comments by Bill Menezes on this site and at PoliticsWest.com claimed I'm all wet. But his objections shatter on the clear text of the Geneva Conventions and relevant case law. His attempt to obfuscate salient facts with irrelevant minutiae fails the test of common sense, as well as established national and international legal precedent.

As mentioned in my original post, the salient fact is the prohibition on internment of combatant detainees (both actual prisoners of war and “unlawful combatants” – more on that later) in civilian penitentiaries.

In the operative provision, Menezes puts undue weight on the qualifying language before the comma: "Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries."

Common sense will inform the reader that the “particular cases” exception to the general rule is applied to individual detainees who are, for whatever reason (generally certain medical conditions, threats from fellow prisoners, or conviction of a civil crime in addition to their combatant detention status) better served or cared for in a civilian facility. Note that this exception is expressly in the interest of the prisoners themselves, not for the convenience or political benefit of the detaining power.

However, since common sense appears to be in general short supply, there is also an established body of case law and the commentary of the International Committee of the Red Cross (ICRC) that applies:

“Internment of prisoners of war in [p.183] penitentiaries is in principle prohibited because of the painful psychological impressions which such places might create for prisoners of war.” Citation here.

So in summary: The facts of international law and treaty (Geneva Convention III Relative to the Treatment of Prisoners of War) and our obligations under those laws (and U.S. statute) are clear: persons falling under military jurisdiction as prisoners (irrespective of their combatant status) are NOT to be detained in civilian penitentiaries as a matter of policy.

Some exceptions MAY be made on a case-by-case basis, in the interest of the prisoners themselves, but in practice and precedent this is applied VERY restrictively. Ergo, Governor Ritter’s proposal to bring detainees from Guantanamo en masse to Colorado’s civilian SuperMax prison would in fact violate international law and our treaty obligations.

PS - The non-functioning link correctly pointed out by Bill in the original post has now been corrected. We apologize for the typo. The link goes to the Yale University Law Library’s “Avalon Project” – a superb resource and reference for documents on international law.

If the Rocky folds

As Tom Daschle exits the Obama administration in his tax-free chauffeured limo, kudos to the Rocky Mountain News for editorializing today that this hypocritical scofflaw wasn't fit for confirmation as HHS Secretary. Sorry to see nothing on that from the Denver Post editorial page. A Rocky editorial likewise called for the rejection of Tim Geithner, another tax cheat, as Treasury Secretary last week. Unfortunately only 34 senators agreed -- and unfortunately, again, nothing from Post editors on that one either.

The Post did have an excellent Sunday editorial on Feb. 1 pointing out many flaws in the $819 billion stimulus bill, but the Rocky's editors were earlier and stronger in their condemnation of this legislative monstrosity.

One of the things Colorado will lose if the Rocky Mountain News goes away is an outspoken editorial voice that is usually, not always, more friendly to the conservative position and more skeptical of the liberal position than Denver's other daily, the Post. Let's hope it doesn't happen. Our state would be the poorer for it.

No taxpayer bailout for Colo. pensions

When President Bush and Congress first proposed a financial bailout for Wall Street investors last September, a grassroots chorus - from the Left and the Right -decried using public taxpayer funds to pay off the debts of private investors. In Colorado, the state's largest pension fund has lost 25 percent of its investment assets - $11 billion - in the past year, jeopardizing its long-term ability to pay retirement benefits promised to some 413,000 current and former government employees.

A year ago, after enjoying a 10 percent return on investment, assets of the Public Employees Retirement Association had grown to $41 billion or about 78 percent of the funds needed to pay $53 billion in promised benefits to retirees.

Now, PERA's assets have fallen to barely $30 billion. An estimate by the legislature's Joint Budget Committee pegged PERA's current funding ratio at 56.8 cents on the dollar, using 2007 liabilities. However, the actual number is undoubtedly worse given that PERA's liabilities (i.e., promised benefits) grow by more than $3 billion annually.

PERA officials, as is typically the case, aren't asking the legislature for hasty changes. While that may be wise as it applies to PERA's investment strategy (which generally exceeds its benchmarks), failure to deal with PERA's unaffordable benefit structure is irresponsible. At last, that costly reality may be inescapable, even for PERA and its apologists.

Even in a strong year like 2007 when PERA's investments grew by 10 percent, its liabilities still grew faster, adding $160 million to its funding deficit.

PERA lawyers assert that benefits can be retroactively increased (as they have been), but that once increased, those benefits can never be reduced, even for someone who has worked just one day for a PERA employer. But what if those increased benefits threaten the solvency of the fund? PERA had behaved as if that could never happen.

Worse still, PERA's party line is that the responsibility to make up for any shortfall rests with taxpayers, represented by state and local governments who contribute to PERA's pension funds on behalf of their employees.

With that in mind, it's worth explaining how PERA's retirement plan is funded.

State government, most school districts and many cities and counties deduct 8 percent from their employees' paychecks and send it to PERA, along with a 10.15 percent employer contribution and a 1.5 percent supplemental contribution (which will increase to 6 percent by 2013 to help return to full funding). That's a total contribution rate approaching 24 percent of payroll ­ compared to 12.4 percent for Social Security.

That money, more than $1.25 billion a year, is invested by PERA staff with direction from the PERA board of directors, 80 percent of whom are themselves PERA beneficiaries. Taxpayers have no meaningful input.

In short, PERA rewards its members with higher benefits when its aggressive investment strategy pays off but soaks taxpayers for a bailout when that strategy backfires.

If PERA can simply charge its losses to the taxpayers, no wonder it sees no urgency in an unfunded liability of nearly $30 billion or an unsustainable benefit structure or funding models that assume incredible rates of return for decades into the future.

That certainly sounds like using public taxpayer funds to pay off the debts of private investors. While that's a great deal for PERA members, most of whom can retire at age 55 and collect $2,658 a month, it's a lousy deal for other taxpayers on Social Security where the retirement age is 67 and the average monthly benefit is $1,089.

Because PERA won't go belly up tomorrow, the expedient course is to kick the problem down the road. When the day of reckoning finally arrives, current PERA board and staff will be long gone.

After contributing generously to fund state employees' retirement and giving those employees virtually unlimited control over their pension investments, Colorado taxpayers deserve to be freed from this heads-they-win, tails-you-lose proposition.

If PERA beneficiaries want their pension fund to invest aggressively, they should also bear the responsibility if those investments backfire.

Former State Treasurer Mark Hillman served as a member of the PERA board ofdirectors. To read more or comment, please go to www.MarkHillman.com

Jihad in Southern Colorado?

Channel 13 in Colorado Springs reported local reacation on the Obama administration possibly relocating Gitmo terrorists to the Supermax prison in Florence.  The reporter interviewed two women that are residents of Florence.  One woman is the local library director and the other apparently was a woman on the street.  Both women expressed complete comfort with the idea and said they believe the facility itself and the staff are quite competent to take on this unique set of inmates.  The news anchor commented that Florence residents are in favor of bringing radical Islamic terrorists to their town because it would create jobs. The question is not whether we can have confidence in Supermax and it's courageous, highly trained personnel.  None of the criminals there have escaped and threatened me or my neighbors, and I don't even worry about that happening.  However,  I am not in favor of bringing terrorists to Colorado or any other location on our mainland. 

Gitmo was put in place to keep such people away from the general population because they pose a serious threat and a clear and present danger.  The people they align with and want them free are also a threat.  While I adamantly disagree with the President's decision to close Gitmo and then toss around several ideas as to where in the United States these criminals will end up, I especially think Colorado is about as poor a choice as could be made. 

Governor Ritter is in favor of bringing the inmates here.  Residents need to consider the fact that the Colorado Springs area has been considered a possible target for terrorism, especially since 9/11.   In addition to Ft. Carson, Cheyenne Mountain AF Station, the Air Force Academy, Peterson AF Base, Schriever AF Base, we have Homeland Security and several large defense contracting firms.  This area could become even more of a target if we house terrorists that no one else on the planet wants.   Our governor should put the safety of our people first, ahead of any political consideration.

Several years ago I was employed at St. Thomas More Hospital in Canon City.  We provided medical care to inmates at the various prisons that was outside the capability of the prison healthcare units.  As part of our ongoing training, we were made aware of the fact that violent criminals have families and friends that come in and out of the area to visit inmates.  In addition,  people that have an unfriendly attitude toward a prisoner also come and attempt to enter the prison to visit.  Of course, visitors are screened and may be turned away, but they are in the region, spending time in our communities.   If a very violent inmate required hospitalization or emergency care, extreme safety measures were mobilized to secure the safety of hospital employees and the surrounding neighborhood and community at large.  The possibility of a friend or family member possibly trying to stage an escape during transport or while the patient was receiving medical care was anticipated, with appropriate planning put in place.  If we house radical terrorists in prisons in Southern Colorado, and our new policy dictates that we are more sympathetic toward them, will we not be forced to allow these prisoners to have visitors?  If they ask to have the privilege of visits from families, friends and religious leaders, will we have the ability under new guidelines to deny those privileges?  Given the new policy directives, we will at a minimum allow them to meet with legal counsel.  Would we not also be required to allow them to have visitation rights similar to other inmates?  The question then becomes, do we want the friends and associates of terrorists coming in and out of our state?

Congressman Doug Lamborn has spoken out against this proposal and if you agree that our state should not take on the responsibility and possible additional terror threat, write to President Obama and Governor Ritter, and also write to Congressman Lamborn and others to support their efforts to take this possibility off the table.

 Contrary to the newsclip on News Channel 13, the support expressed by two residents does not amount to a concensus that everyone in the area welcomes the Gitmo Jihadists to our great state.  Having lived in Canon City, I know many people there and in Pueblo who are not in favor.  This is an important debate and our readers that feel strongly one way or another have an opportunity to participate in the discussion.  If our voices aren't heard, they aren't given consideration. 

TABOR for dummies (and Dems)

Here they go again. Faced with a budget that's hemorrhaging dollars, it was only a matter of time before one of our spendthrift legislators made headlines by erroneously pointing the finger of blame at Colorado's Taxpayers Bill of Rights (TABOR). Never mind that last spring Governor Ritter and the Democrat-controlled legislature ignored numerous warning signals of a looming recession.

Never mind that they ignored the consensus lesson of the last "budget crisis" -- when times are good, save a little money for when times aren't so good.

Never mind that in November voters rejected higher taxes and defended the few remaining constraints on government spending.

Nope, to hear the Denver Democrats tell the story, the problem with the state budget isn't the economy or undisciplined spending. A few degrees further from reality, newly-elected Boulder Democrat Sen. Rollie Heath says the problem is TABOR.

Apparently Sen. Heath didn't hear about Referendum C which loosed Colorado's government from most of TABOR's constraints ‹ except for that pesky requirement that voters still get to decide whether to raise taxes.

"We're hamstrung," Heath complained to a legislative committee even before taking office. "Not only does (TABOR) put a limitation (on spending), it takes away your flexibility. We desperately need flexibility right now."

So perhaps it's time a for a quick session of "TABOR for Dummies" to benefit anyone else who's been elected to state government after spending the past four years in a galaxy far, far away.

Lesson 1 - TABOR doesn't limit spending during a recession.

To quote James Carville, "It's the economy, stupid!" During a recession, the limiting factor on state spending is the economy. After all, Colorado ‹ unlike Congress ‹ has a balanced budget amendment, so the state can't spend money it doesn't have.

Lesson 2 - Ref C doesn't expire in 2010.

When the voters passed Ref C in 2005, they changed the way the original TABOR worked. Even after portions of Ref C expire in 2010, the new, revised spending limit under TABOR 2.0 will no longer "ratchet down" spending during a recession and will rarely restrict spending during an economic recovery.

According to the legislature's economists, TABOR will not limit government's ability to spend in the foreseeable future.

Lesson 3 - Amendment 23 doesn't expire in 2010.

The constitutional amendment that actually makes matters worse during a recession is Amendment 23, which mandates that K-12 education spending must increase every year - even when revenues are decreasing.

In the current budget, Amendment 23 requires a spending increase of $189 million. Meanwhile, economists predict that total general fund spending must be reduced to $172 million less than last year.

K-12 education accounts for 41 percent of the general fund budget, so the remaining 59 percent of the budget must be cut by $172 million to compensate for falling revenue plus another $189 million to accommodate Amendment 23.

Will Sen. Heath and his fellow Democrats buck the teachers unions to pull the teeth of the real shark in the budget process? Don't hold your breath.

Lesson 4 - Flexibility under TABOR 2.0.

Ever since Ref C suspended the TABOR spending limit, legislators have enjoyed absolute flexibility to spend, to save or to strike a balance between the two.

Guess which option they chose? Not saving. Not balance. Just more spending.

The flexibility they haven't enjoyed is the flexibility to raise taxes without a vote -- although they even tried that with Gov. Ritter's property tax increase.

Herein lies the lesson for voters:

For four years, legislators have budgeted without TABOR's training wheels. They could have saved money during good years, but they didn't. They should have asked our permission before raising property taxes, but they didn't.

What possible justification exists for relaxing the remaining safeguards that protect taxpayers?

Mark Hillman served as Senate Majority Leader and State Treasurer. To read more or comment, go to www.MarkHillman.com