“The safety of the whales must be weighed, and so must the safety of our warriors. And of our country.”

No, I’m not kidding. That was a quote from a 3-person panel of the 9th Circuit Court of Appeals. It seems the on-again-off-again (ad infinitum) resumption of low-frequency active sonar is on again. For now.

Seriously, our warriors? I can guarantee the safety of our warriors. Don’t make them. I ran through a small collection of the immorality of this, last time (opinions differ, of course). Since then the move was halted, and has now been un-halted. Or rather, un-re-un-halted. God knows.

I give you your judiciary (it was 2-1. I say the 2 were Bush recess appointments. I’m cynical, like that):

“We are currently engaged in war, in two countries,” said Judge Andrew Kleinfeld in the majority opinion, joined by Judge Consuelo Callahan. “There are no guarantees extending from 2007 to 2009 or at any other time against other countries deciding to engage us, or our determining that it is necessary to engage other countries.

“We customarily give considerable deference to the executive branch’s judgment regarding foreign policy and national defense,” the court said.

In dissent, Judge Milan Smith said the nation’s environmental laws apply to the armed forces. He said the Navy is conducting similar tests all over the world and would suffer no hardship by delaying its Southern California exercises until it adopts adequate protective measures.

“There is no ‘national security trump card’ that allows the Navy to ignore (the environmental law) to achieve other objectives,” Smith said.

Anyone who can say, in earnest, that they “give considerable deference to the executive branch’s judgment regarding foreign policy and national defense” ought to be placed a million goddamn miles from any sort of decision-making. They shouldn’t even be trusted to feed themselves.

The ruling can be read here (.pdf).

I think when your country is engaged in war in two countries and, say, Hitler and Hirohito aren’t around, your executive has pretty much fucked up on diplomacy and national defense. In this instance, though, the judges get to be the judge. Literally. Also hilarious was the reason for over-turning the ruling of the lower court:

In her ruling, U.S. District Judge Florence-Marie Cooper said the underwater sound waves could harm nearly 30 species of marine mammals, including five species of endangered whales. She said the Navy’s planned protective measures were “woefully inadequate and ineffectual,” and cited the Navy’s estimate that the tests would cause 466 permanent injuries to whales.

The appeals court said Cooper had failed to consider the need for military preparedness.

Finally, someone is being criticised for failing to consider the need for military preparedness. Wait…

Just to round out:

There are many steps the Navy could take to lessen the harm to the whales and other marine life, Jasny said, including measures that foreign navies and even the U.S. Navy itself have used in the past.

The Navy had been allowed to conduct sonar tests in the area in previous years while taking such steps as using lookouts and reducing sound levels when whales were spotted, or during conditions that allowed sound waves to travel farther than usual.

Navy officials have dropped most of those measures from the current tests, apart from the continued posting of lookouts. The California Coastal Commission, which reviewed the testing plans, concluded in January that additional protections were needed, such as steering clear of the Channel Islands National Marine Sanctuary and the annual migration path of the gray whales.

The Navy said it was not bound by those conditions and declared that its tests would cause no harm to marine mammal populations.

Gureck, the Pacific Fleet spokesman, said the Navy “employs extensive mitigation measures, approved by the National Marine Fisheries Service, to minimize the risk to marine life whenever active sonar is used.”

That’s the same National Marine Fisheries Service, by the by, that’s being sued by the Natural Resources Defense Council, “about an incident of mass stranding of whales under the Freedom of Information Act because the Council thought it had to do with navy sonar use. The Service did not want to release the materials, saying they were protected from disclosure because they were discussions of agency decision-making.

Hey, look on the bright side. At least you’re not a whale.

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