30 June 2008

Update no.342

Update from the Heartland
No.342
23.6.08 – 29.6.08
Blog version: http://heartlandupdate.blogspot.com/
To all,
The follow-up news items:
-- The word magician and comedian George Denis Patrick Carlin passed away at age 71. Regardless of our politics and sensibilities, we must laud Carlin’s intellect and extraordinary ability to showcase the majesty and absurdity of words, in common as well as unusual contexts. His challenges to us all shall endure beyond his life, but we are diminished without him. May God rest his soul . . . even though he did not believe.
-- Zimbabwean opposition leader Morgan Tsvangirai withdrew from the election as the blood of his supporters flowed in the streets, and he sought protection in the Dutch embassy in Harare. Tsvangirai’s extraordinary action further accentuates the criminal conduct of the dictator Robert Mugabe. Then, to pore salt in the wounds, Mugabe’s goons threatened to decapitate anyone who did not vote . . . for the only candidate remaining. Despite the threats, hundreds of thousands Zimbabwean’s abstained rather than sanction Mugabe’s grotesque insult to the nation. President Bush declared the Zimbabwean election and government illegitimate. And, to think, a couple of decades ago, Zimbabwe, formerly Rhodesia, was one of the most prosperous countries on the African continent.
-- The FISA Amendments Act of 2008, or more properly, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 [HR 6304] passed the House [vote: 293-129-0-13 (0)] and went to the Senate, where Senator Russell Dana ‘Russ’ Feingold of Wisconsin threatened a filibuster to stop passage of the important legislation that includes the controversial telecom immunity provision. The Senate invoked cloture [Senate: 80-15-5 (0)], which should bring the bill to Senate passage.
-- On Thursday, the North Korean government handed over their nuclear declaration to the Chinese as part of the Six Party Talks. The President indicated his intention to remove the DPRK from the list of terrorist nations – quid pro quo. The North Koreans destroyed a nuclear plant cooling tower the following day, as a symbolic direct action toward reconciliation.
-- Five days after the Supreme Court’s detainee habeas corpus ruling – Boumediene v. Bush [552 U.S. ___ (2008)] [340] – Representative John Barden Shadegg of Arizona introduced the Boumediene Jurisdiction Correction Act [HR 6274] to give military courts exclusive jurisdiction regarding detainee cases. Also, the first of post-Boumediene detainee appeals – Parhat v. Gates [DC CCA no. 06-1397 (2008)] – reversed the finding of the Military Tribunal and declared that Chinese Uighur Huzaifa Parhat was not a battlefield combatant. The Parhat decision document is being redacted to eliminate classified material and is not yet available for review. The plot thickens.

Last November, the Supreme Court agreed to hear the appeal of the District of Columbia regarding the adverse judgment of the DC Circuit Court of Appeals regarding the District’s 30 year ban on handgun possession. The three-judge panel in the case of Shelly Parker v. District of Columbia [DC CCA no. 04-7041 (2007)] reversed the district court judgment, finding the DC law was an unconstitutional violation of the 2nd Amendment. [311] The Court heard the appeal in March, including an extraordinary Amicus Curiae (friend of the court) brief by 55 senators, 250 representatives, and the President of the Senate, Vice President Richard B. Cheney, on behalf of the respondent – DC special police officer Dick Anthony Heller [325]. The Court rendered its judgment on Thursday – District of Columbia v. Heller [552 U.S. ___ (2008); no. 07-290]. The scholarly decision covers a broad range of law from the colonial days and the English Declaration of Rights of 1689, through the formulation of the 2nd Amendment in the American Bill of Rights, to the last major review of the Amendment in the case of United States v. Miller [307 U.S. 174 (1939)] – a challenge to the National Firearms Act of 1934 [PL 73-474] [311]. Virtually every word in the controversial Amendment was dissected in detail by both the Court and the dissent, and the contrast in judicial perspective brightly illuminates the extraordinary power and flexibility of the English language as well as the political biases or predispositions of the justices. In affirming the DC Circuit’s judgment of unconstitutionality, Associate Justice Antonin Scalia concluded, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” Scalia also observed, “A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.” Yet, perhaps, the best illuminative sentence in this decision comes from Associate Justice John Paul Stevens in his dissenting opinion; “Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment.” The single, most descriptive word in the sentence is ‘surely’ – an adverb that conveys a sense of projected expectation. The dissent went to great lengths to acknowledge the physical cost and emotional impact of gun violence on our society, however, such arguments as rationale to impinge upon the constitutional rights of every, single citizen is hardly worthy of the High Court’s jurisprudence. Associate Justice Stephen Breyer offered his conclusion in dissent, “I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission” – odd, since he had no such reservations in the majority of the Boumediene decision, which may have far greater impact on the security of this Grand Republic. This case graphically displays the oddity and flaws of the Court, that justices see in the words of the Constitution, legislated law, and the scholarly commentaries on the law what they wish to see, and we can sense the political tension both internal to the Court and beyond. The silly season will certainly accentuate and amplify the political aspects of the Judiciary, and this case will be grist for the mill. ‘Strict constructionist’ versus ‘judicial activist’ are popular, political monikers of convenience intended to stir up parochial partisanship. ‘Liberal’ and ‘conservative’ hardly seem descriptive enough, as those terms attract so many other political elements. I have found that reading the Court’s opinions through prisms of public versus private, government versus individual citizen, or Federalist versus individualist, or collective versus liberty. The recent Boumediene and now Heller decisions can be seen through these alternative prisms. When viewed from a different perspective and in the illumination of the Founding principles, the activist justices appear to be the Federalists, the conservatives, and the so-called ‘strict constructionists,’ who are expanding the powers of the Federal government far beyond the original vision of the Founders and Framers. Why would the Founders accept the potential oppression of state governments and not the Federal government? Does a state government have more authority to intrude upon an individual’s privacy than the Federal government? In this case, the Court dealt with a citizen’s right to private use (possession) and sided with the individual citizen. Of course, as Antonin the Impaler acknowledges, the right is subject to regulation . . . for the public good. Gun violence compelled the DC government to ‘enter’ private homes and deny private use, ostensibly for the public good. Like so many well-intentioned laws, the State chose a sledgehammer instead of tack hammer to fulfill its perceived responsibility. The obscenity of indiscriminate gun violence in the United States, and in this case specifically, the District of Columbia, is insufficient rationale for blanket gun bans like the DC handgun law. The Court affirmed the rights of every individual citizen over the State. My opinion regarding the 2nd Amendment and reasonable limitations [274] has not changed.

Comments and contributions from Update no.341:
“What??? No mention of the ongoing saga and soap opera style drama of the USAF Tanker Contract and Protest??? Surely that merits some acknowledgement in the Update!!! Especially since the GAO has now upheld that the USAF did not follow its own rules during the evaluation stage of the procurement. Also, what about McCain's campaign staff who were actively lobbying for EADS???? Should add some spice to the ‘silly season’!!!”
My response:
Actually, I did comment on the Air Force procurement decision in the new Multi-Role Tanker Transport (MRTT) program [326]. Perhaps, you don’t recall. LOL The GAO opinion was a bit extraordinary for major military procurement programs. I have been on the losing and winning sides of big competitions; I know what it feels like, and how wrong the losses felt as well as how wise the wins were. I do not know the details of the decision or the GAO’s opinion.
There probably was politics in the Air Force’s decision, and undoubtedly politics in the GAO opinion. The babblings of the local politicos bother me, like the Air Force was outsourcing jobs, technology, and national treasure. I think the Air Force did the best they could with the constraints they were given. My beef with the whole process centers upon the foolish notion of the protectionist mentality so prevalent in portions of our society.
This whole fiasco has been mucked up from the get-go, no wonder it remains a mess. So, I guess the Air Force and this Grand Republic shall wait some more for a replacement for the aging KC-135 fleet.

Another contribution:
“I never mean these things personally- and let my frustrations appear as attacks on you and what you think- and must again repeat that I will defend your right to think whatever you want short of death, (for I am not that tough, never having been tested by water-boarding etc.) - and I know you are the warrior mindset, as many of my friends are who are ex-military. But even you must admit that the warrior's job is to kill and destroy- or be killed and destroyed- so that is why we have grown to use that hammer only for that purpose-I respect your view that we are at war with Islamo-fascists, but I do not agree with it. I think there are too many facets, too many nuances, too many variables, and way too much control of the information for us to allow the warrior mindset to be the dominant argument. Congress made a mistake because of this predilection to let emotion and sabre-rattling drown out debate and discourse. Speak softly but carry a big stick makes a lot of sense, but when you have, what I consider, a small man surrounded by people with narrow agendas speaking very loudly with no warrior experience from the comfort of his staged podiums and then swinging that stick in any direction he wants- we have the catastrophe we are all experiencing now. With Clinton rhetoric about obliterating people and Obama kowtowing to AIPAC, I'm not all that hopeful at this point, but remain somewhat optimistic that we can bring some sanity to world events by civilized experienced people beginning to dominate the arguments. We could discuss this warrior mentality ad nauseum I guess, but don't you agree that the mentality that would have attacked Cuba with tactical nukes if necessary in Oct 62 would have been disastrous? There we had legitimate brave warrior-soldiers arguing the case- and they had seen combat, some having personally lead the bombing raids over Nazi Germany-yet it took a rich spoiled privileged upstart, who fortunately had a little vision and intelligence, to stand them down, and save the world, one might add. But I digress on that.”
My reply:
Thank you for the reassurance. I put myself out there for a purpose. Sometimes the comments bite, but that is the whole point . . . to help me think, to make me think, and hopefully help just one or two others think. Thank you for your continuing participation.
Yes, precisely, the warrior’s job is to kill and destroy . . . to stop the killing, which is precisely why war should always be the last resort.
I am glad that you and other fellow citizens do not agree with the war. Neither do I. I wish we could live in peace, as nearly all human beings truly wish. Unfortunately, there are a few humans who learned such corrosive hatred that they seek to impose their will on other free people. A rabid dog knows no love, and the only answer is to kill the dog before he can hurt others. We are doing the best we can to deal with the rabid dogs among us.
I don’t know that ‘W’ is as wild and indiscriminate as portrayed, but nonetheless, point taken.
Interesting perspective on the Cuban Missile Crisis. There were many factors on both sides contributing to that event. Those aside, the military’s responsibility is to define military options – those inherently involve the use of force. And, if I was wearing four stars and advising the President, I would offer options with all the weapons available to me including nuclear. The President’s responsibility is to set a course with all the resources available to the Nation – military options are and should be the tool of last resort. So, no, I do not think the option of tactical nukes in October 1962, was dangerous or even unusual. I would truly hope today’s military offers the President options that also include nuclear weapons. The military’s job is to win a war when the trigger is pulled, period; and, as I have tried to convey many times, half-measures on the battlefield just gets a whole bunch more good men killed.

{These comments were submitted anonymously at the Blog website.}
“The present system of electing the President does not ‘work well’ because the winner-take-all rule (currently used by 48 of 50 states) awards all of a state's electoral votes to the candidate who gets the most votes in the state. Because of these 48 state laws, presidential candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the concerns of voters of states that they cannot possibly win or lose. Instead, candidates concentrate their attention on a handful of ‘battleground’ states. 88% of the money is focused onto just 9 closely divided battleground states, and 99% is concentrated in just 16 states. Two thirds of the states are effectively disenfranchised in presidential elections. Another effect of the winner-take-all rule is that a candidate can win the Presidency without winning the most popular votes nationwide – something that happens in 1 in 14 elections (1 in 7 non-landslide elections).
“The Constitution would not be unraveled by the National Popular Vote bill.
“While the Electoral College is in the Constitution, people are frequently surprised to learn that the current ‘winner-take-all’ rule of awarding electors in each state is not in the Constitution. It is a matter of state laws. In the Constitution, how states award electoral votes, is left to each state to decide. So there is no need to amend the Constitution. The founders left the question of how to award the electoral votes to the states.
“Read up at http://www.nationalpopularvote.com/.”
My reply:
We can criticize any system for electing officials. Article II, Section 1 of the Constitution is certainly no different. The traditional ‘winner-take-all’ approach to Electoral College delegate allocation has served this Grand Republic well for 220 years. Under the Electoral College system, the States matter, and the election calculus demands that candidates consider the issues within states. The ‘winner-take-all’ Electoral College method emphasized the sovereignty of states rather than the national popular vote. Since the New Deal of the 1930’s, states have mattered less and less, well, expect when it is convenient for some political purpose to brandish state’s rights. I, for one, do not believe further dilution of the states in deference to the Federal government is a positive action by We, the People. Several elections have elected presidents without winning the popular vote. We have survived those exceptions. We shall continue to survive with the Electoral College and despite future exceptions.

A different contribution regarding my marriage question:
“I myself do not believe the homosexual marriage will destroy the family institution of marriage. I believe it will not be an issue many years to come. Gay relationships will never go away (they've been around for many, many years and will be around forever). Someday, the public will just give in ... maybe not anytime soon, but it will happen.”
My response:
Unfortunately, there are a lot of people in this country to truly believe what some of the uber-Right, pseudo-preachers tell them . . . that a small fraction of our population who choose a same gender partner will somehow destroy families and marriage. Such thoughts imply we are too week to decide for ourselves. I continue my crusade to help people think through things regarding homosexual rights. They are just ordinary, regular, normal folks that have every right to the same benefits and privileges of citizenship that heterosexual folks do. ‘Just giving in’ is not the best outcome from my perspective. I hope that people can think and see that what two (or more) folks choose to do in private is their business, no one else’s, and we have no interest placing the government in anyone else’s bedroom.
. . . a follow-up comment:
“I guess saying ‘giving in’ were wrong words ... I should have said when the general public gives UP their uptight beliefs and fears, things will change. Will it be in our lifetime? Possibly not, but it is slowly working that way. Sorry no one else responded to your question ... many people are not necessarily against the idea, they just don't see the importance in it, maybe because it doesn't personally affect them or their lives. Sad.
. . . and my follow-up response:
This whole issue of homosexual marriage stems from strict controls on public and private behavior by the Roman Catholic Church and the descendant Christian sects, but could easily be extended to all three of the revealed religions, that have been manifested in our laws. The Constitution was ratified when 5 of the 13 original states recognized, sanctioned and supported human slavery. We overcame that affront to our Founding principles. Homosexuality has far more sensitive and explosive connotations, and I imagine it will take a comparable amount of time to truly overcome. The truly sad aspect of the homosexual rights debate remains that homosexual citizens are good, upstanding, productive citizens. They estimate 10-20% of any population are non-heterosexual. I dare say, most folks are friends with people who they do not know are homosexual. If people would only let go of their fears and phobias, and look at people for the content of their character, they would readily find that non-heterosexuals are far less of a threat to society than many heterosexuals. But, as always, “That’s just my opinion, but I could be wrong.”

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)

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