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Ear to the Ground

Objector’s Mom Goes to Washington

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Posted on Jan 5, 2007
Carolyn Ho
washingtonpost.com

Carolyn Ho has gone to Washington to fight on behalf of her son, Army 1st Lt. Ehren Watada, the first commissioned officer to refuse to go to Iraq. Watada faces court-martial and six years in military prison for abstaining from a war he believes is illegal.


Washington Post:

Like many Americans, she believed she could come to the capital city and change the world. Or at least her small part of it.

She was acting purely on instinct, wanting to do everything in a mother’s power to protect her son. “I’m here to get what I can,” said Ho, who is from Honolulu. Dark hair pulled back. Dark eyes that moisten when she speaks of her son. Soft voice. “I’m going to put it out there.”

Phoebe Jones of Global Women’s Strike, an international antiwar network that supports Ho and Watada, was at Ho’s side on Capitol Hill. “The work of mothers is protecting life, beginning with their children,” Jones explained. “And that is really the opposite of the obscenity of war.”

On the Hill, Ho handed out information packets. She passed around photos of Watada, who is taller, fuller of face than his mother, but shares her smile.

Her son “based his decision on facts,” she said. He studied the war in Iraq and decided it was illegal. He tried to resign and leave the service with dignity, but the Army wouldn’t let him. He asked to be shipped to Afghanistan; his request was denied. He was offered a noncombat position in Iraq; he said no thanks.

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By The Uncivil Litigator, January 17, 2007 at 12:38 pm Link to this comment
(Unregistered commenter)

10 U.S.C. § 886. I won’t bother asking for your cite because I know you don’t have one. Next?

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By Lefty, January 12, 2007 at 10:49 pm Link to this comment
(Unregistered commenter)

Uncivil Litigator,

You’ve missed the issue, again.  Cite the “rule of law” that prohibits a soldier from resigning from an all volunteer military.

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By The Uncivil Litigator, January 12, 2007 at 10:01 am Link to this comment
(Unregistered commenter)

Thank you for proving my point, Lefty, which is that you have no actual law to support your frivolous argument. It is absurd to even suggest that the military has no power to compel a soldier to obey orders. I’ve provided enough citations for you. I asked you to provide some for me and you’ve failed to do so. This obviously means you are unable to come up with any.

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By Lefty, January 11, 2007 at 10:17 am Link to this comment
(Unregistered commenter)

TUL,

No, go back and read your first post.  You first invoked “the rule of law” in your argument, in opposition to Lt. Watada’s actions, that he could not refuse a commander’s orders. 

First, I suggested that it wasn’t merely an issue of refusing a commander’s orders, but, an issue of resigning from the military.  In anticipation of a contract argument (soldiers do sign contracts when they enlist) I also stated that the only law that I’m aware of that would apply to a soldier’s duty to remain in the military and be the contract he signs upon enlistment, which, as your own citations demonstrate, cannot be enforced by threat of punitive damages, and which my citation demonstrates cannot be enforced by specific performance, contrary to your prior assertions.

You invoked the rule of law in opposition to Lt. Watada’s actions.  What rule are you talking about?  So far, you haven’t identified any rule.

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By The Uncivil Litigator, January 10, 2007 at 11:20 am Link to this comment
(Unregistered commenter)

Lefty, you state: “you invoked the notion of “the rule of law” and “long-standing principles of military law” in support of your position that Lt. Watada was not at liberty to refuse to participate in a war that he contends is illegal and unjust.  You then implied that he could be subject to the extraordinary remedies of punitive damages and specific performance, both of which are wrong.”

I’m not going to engage in dialogue with you if you’re not going to be intellectually honest in your arguments. I “implied” no such thing. YOU tried to defend Watada’s actions by using a raw contracts analysis. I pointed out that even if you used a raw contracts analysis, the arguments you raise are legally flawed. Your statements of contractual law are themselves wrong (“there is no such thing as an egregious breach of contract”; “punitive damages are never available in contract actions”; “a party has a legal ‘right’ to breach a contract”). But the more important point is that a raw contracts analysis doesn’t apply in the first place with respect to Watada.

You’re very good at asking me to look up citations for you without offering any of your own. I challenge YOU to find and post here for everyone to see a citation supporting your argument that a soldier has the legal right to “resign” from the military while he is subject to a pending direct order to report for duty (NON-COMBAT duties it must be noted) to be transported to the battlefield.

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By Lefty, January 9, 2007 at 8:42 pm Link to this comment
(Unregistered commenter)

(Continued)

“The Thirteenth Amendment reads: ‘Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

“‘Section 2. Congress shall have power to enforce this article by appropriate legislation.’

“U.S.C., Title 8, Section 56, 8 U.S.C.A. s 56, reads: ‘The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in any Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.’

“Hardie was the only witness for the State. He testified that the agreement had been made, that he had advanced the $19.50, that appellant had neither done the work nor returned the money, and that although appellant had said something about being sick, he had given no visible sign of it and had not been confined to bed.

* * *

“We think the conviction must be reversed. There is no material distinction between the Georgia statutes challenged here and the Alabama statute which was held to violate the Thirteenth Amendment in Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191.FN5 It is argued here, just as it was in the Bailey case, that the purpose of s 7408 is nothing more than the punishment of a species of fraud, namely, the obtaining of money by a promise to perform services with intent never to perform them. And the presumption created by s 7409 is said to be merely a rule of evidence for the trial of cases arising under s 7408. Actually, however, s 7409 embodies a substantive prohibition which squarely contravenes the Thirteenth Amendment and the Act of Congress of March 2, 1867.FN6 Its effect is to authorize the jury to convict upon proof that an agreement has been reached, that money has been advanced on the strength of it, that the money has not been returned, that the appellant has failed or refused to perform the services ‘without good and sufficient cause,’ and nothing more. THE NECESSARY CONSEQUENCE IS THAT ONE WHO HAS RECEIVED AN ADVANCE OF A CONTRACT FOR SERVICES WHICH HE IS UNABLE TO REPAY IS BOUND BY THE THREAT OF PENAL SANCTION TO REMAIN AT HIS EMPLOYMENT UNTIL THE DEBT HAS BEEN DISCHARGED.  [Emphasis added].  Such coerced labor is peonage. And it is no less so because a presumed initial fraud rather than a subsequent breach of the employment contract is the asserted target of the statute. It is of course clear that peonage is a form of involuntary servitude within the meaning of the Thirteenth Amendment and that the Act of 1867 is an ‘appropriate’ implementation of that Amendment. Clyatt v. United States, 197 U.S. 207, 25 L.Ed. 429, 49 L.Ed. 726.”

TUL, you invoked the notion of “the rule of law” and “long-standing principles of military law” in support of your position that Lt. Watada was not at liberty to refuse to participate in a war that he contends is illegal and unjust.  You then implied that he could be subject to the extraordinary remedies of punitive damages and specific performance, both of which are wrong.

Now, please direct my attention to your authorities setting forth such rules of law, or military principles that would prevent Lt. Watada from resigning from an all volunteer military.  I’m not saying that there is no such law.  I am just saying that I’m not aware of any.

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By Lefty, January 9, 2007 at 8:40 pm Link to this comment
(Unregistered commenter)

To uncivil litigator,

Thank you for your citations of authority.  However, the very first case you cite establishes that I am right, and that you are wrong.  As I said before, punitive damages are not available for breach of contract unless such conduct also amounts to an independent tort sufficiently egregious to warrant punitive damages, such as fraud, an intentional tort.

Your first citation, New York University v. Continental Ins. Co., 662 N.E.2d 763 (N.Y. 1995), cites as controlling authority Rocanova v Equitable Life Assurance Society (83 NY2d 603).  As quoted below, the Rocanova case sets forth the general rule that punitive damages are not available for breach of contract, as well as the additional requirement, in the case of insurance companies, that a showing of a “general business practice” is required in order to subject an insurance company to punitive damages.  Specifically, the Rocanova court held, in pertinent part:

“Punitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights (see Garrity v Lyle Stuart, Inc., 40 NY2d 354, 358). However, where the breach of contract also involves a fraud evincing a “high degree of moral turpitude” and demonstrating “such wanton dishonesty as to imply a criminal indifference to civil obligations”, punitive damages are recoverable if the conduct was “aimed at the public generally” (see Walker v Sheldon, 10 NY2d 401, 404-405). Punitive damages are available where the conduct constituting, accompanying, or associated with the breach of contract is first actionable as an independent tort for which compensatory damages are ordinarily available, and is sufficiently egregious under the Walker standard to warrant the additional imposition of exemplary damages. Thus, a private party seeking to recover punitive damages must not only also demonstrate egregious tortious conduct by which he or she was aggrieved, but also that such conduct was part of a pattern of similar conduct directed at the public generally. Clearly, then, the standard for awarding punitive damages in first-party insurance actions is “a strict one” (see Cohen v New York Property Ins. Underwriting Assoc., 65 AD2d 71, 79), and this extraordinary remedy will be available “only in a limited number of instances” (see Garrity, 40 NY2d, at 358, supra).”

Nor, contrary to your prior argument, is specific performance available as a remedy for breach of an employment or labor contract.  It is irrefutable that in the current voluntary military, the volunteer’s obligations are contractual.  Military volunteers sign written contracts setting forth their respective obligations and the length of service, including so called stop loss provisions.  Under long standing constitutional law, a laborer cannot be forced to work under the terms of an employment contract, or for any other reason. See e.g. the United States Supreme Court case of Taylor v. State of Ga., 315 U.S. 25, 62 S.Ct. 415 U.S. 1942, in which the Court explained:

(Continued on the next page)

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By The Uncivil Litigator, January 9, 2007 at 11:52 am Link to this comment
(Unregistered commenter)

Lefty also asked: “If Bush is a war criminal and a soldier kills in furtherance of a criminal war, should the defense that the soldier was merely following orders prevail when it failed at Nuremburg?”

Again, the analogy is so flawed as to be obscene and an irresponsible trivialization of the horrors of the Holocaust. The charges at Nuremberg included state-sponsored genocide and crimes against humanity. Genocide has a legal definition that includes an intent to “destroy a national, ethnic, racial or religious group”. Whatever your objections to the invasion of Iraq may be, it is ridiculous to suggest that President Bush is a “war criminal” in the same sense that Hitler’s henchmen were. Watada was not ordered to summarily execute innocent civilians. He was not ordered to operate gas chambers. He was not ordered to starve innocent people to death in concentration camps. The very fact that you would even attempt to compare these two very different scenarios demonstrates how loose a grip you have on the true issues at stake.

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By The Uncivil Litigator, January 9, 2007 at 11:39 am Link to this comment
(Unregistered commenter)

Lefty: I like how you asked me for legal citations but provided none of your own. “No such thing” as an egregious breach of contract? As a litigator who defends breach of contract claims that assertion surprises me. In any event, see New York University v. Continental Ins. Co., 662 N.E.2d 763 (N.Y. 1995); L.F. Pace & Sons, Inc. v. Travelers Indem. Co., 514 A.2d 766 (Conn. App. 1986); Vernon Fire & Cas. Ins. Co. v. Sharp, 349 N.E.2d 173 (Ind. 1976); Morrow v. L.A. Goldschmidt Associates, Inc., 492 N.E.2d 181 (Ill. 1986); and Blue Cross & Blue Shield of Mississippi, Inc. v. Maas, 516 So.2d 495 (Miss. 1987). In addition to these and focusing specifically on bad faith law, it is well established black letter law that a breaching party’s conduct need not be either “intentional” or “fraudulent” to justify punitive damages.

The fact that you bring up involuntary servitude is funny considering that you are the one who tried to use a flawed contracts analysis for the Watada case in the first place. In any event your framing of the issue is: “whether he can now resign in protest to an illegal war”. Under long-standing principles of military law this is known as desertion and/or abandonment. The military has respected the right of conscientious objectors to refuse to serve based on a well-founded religious belief and practice, but Watada clearly does not fit into that definition. And once again, I have yet to see anyone explain how this war was illegal under the supreme law of OUR land. There are good arguments that the war was in violation of international treaties we have signed, and I opposed the war on that basis. But my opposition to the war does not equate to an abandonment of the rule of law. Our constitutional republic requires soldiers to obey lawful orders from their commanders, leaving political decisions such as whether to invade a country or not to be debated by our political leaders. If Watada wasn’t prepared to obey orders he didn’t like on political grounds, he should never have signed up in the first place.

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By Lefty, January 8, 2007 at 5:54 pm Link to this comment
(Unregistered commenter)

Re: Comment #46221 by The Uncivil Litigator on 1/08 at 10:18 am

“Even if matters of national security and our armed forces were simply questions of contract law (which they are clearly not), there is no legal “right” to breach any contract. Under the law of contracts, the party who was injured by the breach (in this case the Army) has the right to any number of legal remedies against the person who breached. The party can not only obtain damages, including punitive damages to punish egregious breaches, but also obtain an injunction for specific performance of the contract. Specific performance forces the breaching party to come into compliance. And failure to obey a court order, as you probably know, is punishable by imprisonment.”

Sorry, that’s wrong.  As a general rule, there is no such thing as an egregious breach of contract.  Therefore, punitive damages are not availalbe for breach of contract.  If you disagree, please provide a legal authority holding that punitive damages are available for a breach of contract not involving fraud or some intentional tort. I know of none and I doubt you will find one. 

Further, specific performance of a contract is an extraordinary equitable remedy available only where there is no adequate remedy at law, ie: the subject of the contract is so unique that damages would be inadequate, such as a contract for the purchase and sale of real estate or fine art.  Clearly, the work of a soldier is so lacking in uniqueness that it is in the nature of a fungible good. 

Moreover, it is well settled that an mandatory injunction compelling a labor contract is unconstitutional as involuntary servitude.

Now, in your initial post, you stated, in effect, that the rule of law precluded Lt. Watada from defying a commander’s order.  As I said previously, I think you missed the issue, which is whether he can now resign in protest to an illegal war.  In either event, if you know of a “rule of law” that prevents Lt. Watada from defying a commander’s order, or from simply resigning from the military, please cite it.

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By The Uncivil Litigator, January 8, 2007 at 11:18 am Link to this comment
(Unregistered commenter)

One person has argued as follows: “The issue is whether a soldier’s may resign from the military under the law of contracts… The fact that he has signed a contract to serve does not compel a response that he cannot quit.  Under the rule of the law of contracts, a party to a contract has an absolute right to breach the contract and pay damages, if any, for the breach.”

Even if matters of national security and our armed forces were simply questions of contract law (which they are clearly not), there is no legal “right” to breach any contract. Under the law of contracts, the party who was injured by the breach (in this case the Army) has the right to any number of legal remedies against the person who breached. The party can not only obtain damages, including punitive damages to punish egregious breaches, but also obtain an injunction for specific performance of the contract. Specific performance forces the breaching party to come into compliance. And failure to obey a court order, as you probably know, is punishable by imprisonment.

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By The Uncivil Litigator, January 8, 2007 at 10:59 am Link to this comment
(Unregistered commenter)

To Ms. “Cantarella” and others: Well, I don’t personally know any “international lawyers” but I do happen to be a lawyer myself. I see the term “illegal” being bandied about rather carelessly here. Under what authority was this war “illegal” in the same sense that killing an innocent unarmed civilian in Vietnam was illegal, or brutalizing Jews in Nazi concentration camps was illegal? (Both of these analogies are obscenely flawed by the way but I’ll play along). This war is certainly not “illegal” under our supreme authority, the Constitution, unless you are prepared to now argue that our Constitution is NOT the supreme law of the land. The President’s actions were ratified by a super-majority of Congress. There is no question of his constitutional authority to invade Iraq, even though you may disagree with the reasoning behind his decision and strongly object to it.

The attempt to distinguish my Little Rock example fails. If a soldier has the right to refuse an order to go to war in Iraq because he thinks the war is simply wrong in his expert opinion, he necessarily has the right to refuse an order to protect African-American kids going to school because doing so goes against his moral beliefs in that situation… that the races are meant to be separate and should not be mixed. You can’t have your cake and eat it too. You either allow soldiers freedom of choice or you don’t. So which is it?

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By Boggs, January 5, 2007 at 8:35 pm Link to this comment
(Unregistered commenter)

When one joins the military he does not give up his right to make decisions and he doesn’t give up his free will to make decisions that will have an effect on his conscience and the rest of his life.
If its a wrong cause and he knows its wrong, he owes it to himself, his mother, and to the rest of us to step forward and speak out.
He is truly a hero, and Bush becomes more cowardly with each day that he pushes ahead with this fiasco that we call “Bush’s war.”
Thank you Lt. Watada and Carolyn Ho.

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By Quy Tran, January 5, 2007 at 7:39 pm Link to this comment
(Unregistered commenter)

Mrs. HO, we strongly support you and your family wish.

Nobody can use your son’s blood to decorate his dynasty and ambition.

Be courage and looking up with proud !

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By Lefty, January 5, 2007 at 6:54 pm Link to this comment
(Unregistered commenter)

To Uncivil Litigator,

One more thing! In this case, the issue is not whether a soldier may disobey orders.  The issue is whether a soldier’s may resign from the military under the law of contracts. 

If the U.S. military services are voluntary, then why should a soldier not be permitted to simply quit whenever he wants to.  The fact that he has signed a contract to serve does not compel a response that he cannot quit.  Under the rule of the law of contracts, a party to a contract has an absolute right to breach the contract and pay damages, if any, for the breach.  A contract for labor under which the laborer could not resign would run afoul of the rule of the law of the anti-slavery amendments, wouldn’t it!

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By Lefty, January 5, 2007 at 6:43 pm Link to this comment
(Unregistered commenter)

To Uncivil Litigator,

Your argument sounds similar to the defense asserted by the Nazis and rejected by the judges at Nuremburg. 

If Bush is a war criminal and a soldier kills in furtherance of a criminal war, should the defense that the soldier was merely following orders prevail when it failed at Nuremburg?

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By Sharon Ash, January 5, 2007 at 5:16 pm Link to this comment
(Unregistered commenter)

Army lst. Lt. Ehren Watada not only has a right, but also has an obligation, to refuse to engage in this illegal and immoral war which also just happens to be an unconstitutional war.

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By Jason Cinderly, January 5, 2007 at 4:38 pm Link to this comment
(Unregistered commenter)

We should applaud any soldier that recognizes an unjust war.  State leaders from around the world conduct wars quite often for selfserving and unreasonble motives.  Patriotism is not a system of mindlessly following orders, it’s about standing up for what’s logically right.

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By mite, January 5, 2007 at 3:35 pm Link to this comment
(Unregistered commenter)

If this Congress would honor its ‘Oath of Office’ and the Constitution and Bill of Rights- “the right to petion the government”, and open a independent investigation of “911” the ‘Ho’ family and other military personnel would not be in this situation-period.
http://www.givemeliberty.org http://www.Reopen911.org

This isn’t the first time this has come up. But of coarse we would never here anthing about it from the mainstrem Media-Press.

If we read John C. Bonifaz book ‘WARRIOR-KING’ THE CASE FOR IMPEACHING GEORGE W. BUSH we find the former Secretary of Defense ‘Donald Rumsfeld’ also as a defendent.

If “911” was opened and throughly investigated we would find facts and treason by many officials going back to the the Tonkin incident. We would find the same individuals of conspiracy’s from the past on TV, and read about in the press these past 6 years.

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By Dr. Knowitall, Phd, PhD, January 5, 2007 at 3:22 pm Link to this comment
(Unregistered commenter)

This bears out my comment in the Ellen Goodman/Pelosi column under “Reports.”  What Mrs. Ho is doing is moral and right in a civilized world. “Uncivil,” (#45760) what happened in Little Rock was domestic and far from an immoral war on foreign soil. I think Bush may also be confusing the two.

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By kath cantarella, January 5, 2007 at 3:16 pm Link to this comment
(Unregistered commenter)

RE: Uncivil Litigator
This issue concerns Mr Watada’s own moral sense of right and wrong: he is prepared to go to jail to say no to what he perceives as injustice. And under military law, as far as i know (not far), an officer has the right and the obligation to disobey an illegal order. So the issue is: was the war in Iraq legal? No, it was not legal, it was an unprovoked unilateral invasion, but check with an international lawyer (whose not in the employ of the US govt or it’s cronies) before you take my lay word for it.

RE: Mister Dignity

I’m with you. I am an Australian with only a proxy connection to the US (my best and oldest friend, whose family is Hawaiian like Lt Watada’s) and when i think of the US citizen I think of citizens like my strong ethical friend, and people like Lt Watada. If some in this world tar all US citizens with the same brush, it it their problem, not yours. Keep up the dissenting voices, show the US detractors how to work a democracy, and God Bless Ms Ho and her wonderful son.

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By Peter RV, January 5, 2007 at 3:09 pm Link to this comment
(Unregistered commenter)

We have sentenced German officers and soldiers for war crimes in WWII,committed carrying orders of their superiors. According to Nurnberg Tribunal, they should have disobeyed them because the war their country was waging, was agressive.
  In the case of Lt.Watada one has to establish only one truth.Is the war the U.S. is waging in Iraq, war of agression or not? The rest is irrelevant.
Sadly, Watada is the only real hero of this war.

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By The Uncivil Litigator, January 5, 2007 at 1:24 pm Link to this comment
(Unregistered commenter)

This issue concerns simply the rule of law. Does a soldier have a right to refrain from obeying his commander’s order merely because he disagrees with the reasons for going to war? Would the soldiers ordered by President Kennedy to protect African-American students trying to go to school in Little Rock, Arkansas have been right to disobey their commanders? Soldiers don’t get to make these decisions. Our elected leaders have that responsibility.

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By mister dignity, January 5, 2007 at 10:16 am Link to this comment
(Unregistered commenter)

lt. watada is going to be the hero of this era by simply telling the truth.
boy bush will be in a psychiatric prison for life, and we will beg the world to identify us with watada, a civilzed man, and not that pre magna carta monkey that the last gasp of white supremacism gave us.

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