27 December 2010

Update no.471

Update from the Heartland
20.12.10 – 26.12.10
To all,
The follow-up news items:
-- As sometimes happens with legislation signed into law late in a given week, the title of the bill as enacted is changed by some as yet unknown process. Last week [470], I acknowledged the President’s signing of the Middle Class Tax Relief Act of 2010 [PL 111-312] – the congressionally identified title. On Monday, the title of the same bill as enacted by the President’s signature was published as the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. So, there you have it.
-- The Washington Post reported that the Obama administration is preparing an executive order that would formalize the indefinite detention without trial of unlawful battlefield combatants (captured during the War on Islamic Fascism) at the U.S. military facility at Guantánamo Bay, Cuba [124 et al]. Under the administration’s proposed rules, detainees would be allowed to challenge their incarceration periodically, possibly every year, in a more adversarial, quasi-judicial process. Took ‘em a while but at least they eventually figured it out.
-- On Wednesday, President Obama signed into law the Don't Ask, Don't Tell Repeal Act of 2010 [PL 111-321; H.R.2965; S.4023; Senate: 65-31-0-4(0); House: 250-175-0-9(1); repeal of 10 U.S.C. §654], which repeals the 17-year-old law [PL 103-160] [312, 408], preventing homosexuals from serving openly in the U.S. military. This moment in history is only the end of the beginning. Now the hard work must layout the execution plans. The law does not take effect until the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff certify to Congress in writing that they have completed comprehensive plans that implement the recommendations of the Defense Department’s “Report of the Comprehensive Review of the Issues Associated with a Repeal of ‘Don’t Ask, Don’t Tell,’” dated: November 30, 2010 [please see review below]. The new law also states, “Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of ‘marriage’ and ‘spouse’ and referred to as the ‘Defense of Marriage Act’)” {re: Defense of Marriage Act of 1996 [PL 104-199; 1 U.S.C. §7 (21.9.1996)]}. There is a very long way to go on our journey to attain equal rights and protection under the law for all citizens without regard to sexual orientation
-- The Macondo Well disaster [436, 442, 456] has and will command considerable attention for years to come. In such accident events, I prefer the cold facts of scientific or engineering examination to the emotionalized rendition often used by the Press. Here is an exception:
“Deepwater Horizon’s Final Hours”
by David Barstow, David Rohde and Stephanie Saul
New York Times
Published: December 25, 2010
While the experience of those aboard the Deepwater Horizon drilling rig that fateful day in April of this year does not give us better insight into the root cause and contributing factors that led to the accident, the Times lengthy essay does provide a worthy view of the human dimensions of the accident.
-- A few weeks back, I noted the final reparations payment by Germany as a consequence of the Great War [1914-1918] – the War to End All Wars – World War I [459]. We have another opinion.
“Ending the War to End All Wars”
By Margaret MacMillan – Op-Ed Contributor
New York Times
Published: December 25, 2010
Margaret Olwen MacMillan, OC, is a historian, University of Oxford professor, Warden of St. Antony's College - Oxford, and author of several scholarly history books. Clearly, she has laudable, respectful, impressive credentials. She said, “[The final payment] also, unfortunately, brought back to life an insidious historical myth: that the reparations and other treaty measures were so odious that they made Adolf Hitler’s rise and World War II inevitable.” Nonetheless, as I read the words of Margaret’s Op-Ed opinion, I repeatedly wondered whether she has actually read the Treaty of Versailles or Mein Kampf. Margaret makes a valid point regarding the appropriateness of reparation payments and specifically those imposed on Germany by the Treaty of Versailles. Unfortunately, as Margaret makes her point about the applicability of the German historical experience to the financial management of contemporary beleaguered states like Greece and Ireland, she neglects or overlooks the massive dimensions and consequences of the Treaty. As such, I shall respectfully disagree with Margaret’s convenient simplification and generalization.

Celestial history occurred early Tuesday morning. A full lunar eclipse happened on the Winter Solstice – the last time was in 1638. Europe was in the middle of the intellectual transformation of the Renaissance; England was on the verge of a metamorphic civil war; and the British Colonies of the Americas struggle to sink roots – 138 years from statehood. Needless to say, a very rare event!

After Congress passed the DADT repeal bill and before the President signed the bill into law, Richard Cohen wrote an Op-Ed column advocating for the resignation or removal of General Jim Amos, USMC, 35th Commandant of the United States Marine Corps, for his advice and counsel against repeal of DADT while Marines are fighting the War on Islamic Fascism.
“Marine Corps commandant has to go”
by Richard Cohen
Washington Post
Published: Monday, December 20, 2010; 8:00 PM
I have struggled with words to convey the anger and resentment I feel, while remaining objective, calm and direct. I appreciate Richard’s support for sexual orientation integration in the military; however, his objection to General Amos and presumably other Marine general officers that preceded General Amos in their opposition to the repeal of DADT is precisely the worst possible action and absolutely, categorically, emphatically WRONG! How many more times must we learn the terrible lesson of disastrous consequences of “yes-men” who spew the politically correct drivel that Richard Cohen appears to advocate? I disagree with General Amos for a host of reasons, however, I am proud of his strength and courage to call it as he sees it in such an emotionally charged environment. I urge anyone even remotely interested or inclined to share Cohen’s opinion to contrast General Amos’ public remarks with those of General Peter Pace, USMC [275]. I want – this Grand Republic needs – General Amos and his leadership skills to contribute to and implement the integration plan. Richard Cohen is flat wrong! We need General Amos to do his job.

With the flurry of recent legislation from Congress and feverish signing by the President, many of us may have missed the historic and significant action taken by a divided Federal Communications Commission. On Tuesday, the FCC approved new rules for Internet service providers by Report and Order FCC 10-201. The FCC declared that their action was “an important step to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression;” and to provide greater clarity and certainty regarding the continued freedom and openness of the Internet. The Commission adopted three basic rules:
“1. Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;
“2. No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and
“3. No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.”
It all sounds like great stuff, huh? Two important facts provide additional illumination. A.) The congressional attempt at similar legislation – H.R.3458 - Internet Freedom Preservation Act of 2009 – never made it out of committee, and
B.) The FCC commissioners passed these rules by the narrowest of margins. Genachowski approved; Clyburn approved in part and concurred in part; Copps concurred; McDowell and Baker dissented.
FCC 10-201 mentions privacy a few times, but only to acknowledge the concern and the existing law. A citizen’s fundamental right to privacy is not a stated or even implied objective. Perhaps, the Obama administration’s recently announced initiative to create a Privacy Policy Office [470] – charged with developing an Internet “privacy bill of rights” for U.S. citizens and coordinate privacy issues globally – will help fill in some of the gaps. I suspect the legal challenge to FCC 10-201 is inevitable, unless the 112th Congress can establish law rather than regulatory policy. I laud the government’s initiative to keep the Internet free and open; however, my primary concern remains . . . who will protect our most fundamental rights from voracious commercial interests and intrusion by the government?

The Washington Post reported the U.S. birth rate continued to fall in 2009, pushing the teen birth rate to the lowest level in nearly 70 years, according to reliable data collected by the National Center for Health Statistics.

The U.S. Census Bureau announced the results of the 2010 constitutionally mandated counting of citizens. The total U.S. population grew 9.7% to 308,745,538. The political parties always show the greatest interest due to the inevitable apportionment of seats in the House of Representatives. The big winner for 2012 and beyond is Texas, which will add four seats. Florida will add two seats, and Georgia will add one. Ohio and New York will each lose two seats. The balance of power in the country is tilting away from Democratic strongholds in the Northeast and Northern Midwest to warmer states in the Sunbelt, where Republicans tend to dominate.

On Wednesday, Congress passed and the President reportedly signed the James Zadroga 9/11 Health and Compensation Act of 2010 [PL 111-xxx; H.R.847; House: 206-60-0-168(1); Senate: voice vote] to “establish the World Trade Center Health Program (WTC Program) within the National Institute for Occupational Safety and Health to provide:
“(1) medical monitoring and treatment benefits to eligible emergency responders and recovery and cleanup workers (including those who are federal employees) who responded to the September 11, 2001, terrorist attacks; and
“(2) initial health evaluation, monitoring, and treatment benefits to residents and other building occupants and area workers in New York City who were directly impacted and adversely affected by such attacks.”
I cannot confirm the conclusion of the legislative process, as the Library of Congress was apparently a few hours behind the actual events of that busy day. I believe this bill was the last law passed by the 111th Congress. Reflective of the 23rd hour of the legislative session and the impending holiday break, the House barely achieved a quorum to vote and the Senate consented by voice vote only. I am sure the US$4.3B billion package is an important action to support the 9/11 first-responders and recovery personnel injured by their work at the World Trade Center AKA Ground Zero, but the conclusion does not leave me with a positive impression.

Also on Wednesday, the Senate ratified the so-called “New START Treaty” – the latest strategic-arms treaty with Russia and a major foreign policy goal of the Obama administration, which viewed the pact as a key element of rebuilding relations with Moscow. The formal title is the Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, signed in Prague on April 8, 2010, with Protocol [Treaty Doc 111-5; Senate: 71-26-0-3(0)]. While ratification had appeared in jeopardy only days prior to the vote, the Senate exceeded the two-thirds majority [67 yay] required, including 13 Republicans. We can argue the wisdom of the treaty or the sincerity of the Russians. I think we can all agree that reductions in the massive stockpiles of nuclear weapons are a positive step. The real point of contention appeared to be the restrictions on U.S. anti-ballistic missile defense technology. I can understand and appreciate the apprehension of the Russians regarding missile defense; however, in time, those apprehensions can be diminished by positive negotiations. The Government achieved a major objective.

With the repeal of DADT noted above, the focus now turns to the legally mandated implementation plan and certification by the military that all of the recommendations of the Defense Department’s “Report of the Comprehensive Review of the Issues Associated with a Repeal of ‘Don’t Ask, Don’t Tell’” [468]. I tried to boil down the report’s recommendations to a manageable set of kernels.
1. Leadership, Training, and Education. The report pointed to the words from a number of senior officers and senior enlisted leaders in all the Services, “If the law changes, we can do this; just give us the tools to communicate a clear message.” They were setting the stage for the essence of what must be done.
2. Standards of Conduct. The study group believed that it is “not necessary to establish an extensive set of new or revised standards of conduct in the event of repeal.” They also recommended that the Department of Defense “issue guidance that all standards of conduct apply uniformly, without regard to sexual orientation.”
3. Moral and Religious Concerns. The group acknowledged that a “large number of Service members raise religious and moral objections to homosexuality or to serving alongside someone who is gay.” They recommended special attention be given “to address the concerns of our community of 3,000 military chaplains,” presumably so that the Chaplain Corps could effectively deal with the moral issues. The study group also believed that “policies regarding Service members’ individual expression and free exercise of religion already exist, and we believe they are adequate. Service members will not be required to change their personal views and religious beliefs; they must, however, continue to respect and serve with others who hold different views and beliefs.”
4. Privacy and Cohabitation. The study group recommended that the Department of Defense “expressly prohibit berthing or billeting assignments or the designation of bathroom facilities based on sexual orientation.”
5. Equal Opportunity. They recommend that non-heterosexual service members “be treated under the same general principles of military equal opportunity policy that apply to all Service members.” They further recommend that sexual orientation “may not, in and of itself, be a factor in accession, promotion, or other personnel decision-making.”
6. Benefits. The group acknowledged that the issue of benefits is itself large and complex, and implicates the ongoing national political and legal debate regarding same-sex relationships. They recommended that the particular issue of a “qualifying relationship” status for couples not in a Federally-recognized marriage be revisited as part of a follow-on review of the implementation of a repeal of DADT.
7. Re-accession. The group recommended that Service members who have been previously separated under DADT be permitted to apply for reentry into the military, pursuant to the same criteria as others who seek reentry.
8. UCMJ. They supported revision of Article 125 of the Uniform Code of Military Justice and remove private consensual sodomy between adults as a criminal offense, warranted irrespective of DADT to be consistent with Lawrence v. Texas [539 U.S. 558 (2003)].
9. Follow-on Review. Lastly, they recommended that one year after any repeal of DADT has been in effect, the Department of Defense conduct a follow-on review to monitor the implementation of repeal and to determine the adequacy of the recommended actions that are adopted. This should include a reassessment of the same-sex partner benefits issues referred to earlier.
The report contains a large amount to data regarding various aspects of the integration of non-heterosexual citizens in the military. The recommendations are founded in fact and represent the skeleton of an implementation plan. No timeline has been offered as yet. Presumably, now that the law has been properly altered, the military will move out smartly to finalize and execute the implementation.

News from the economic front:
-- According to the Wall Street Journal, New York State Attorney General Andrew Cuomo is close to filing civil fraud charges against Ernst & Young for its alleged role in the collapse of Lehman Brothers, saying the accounting firm stood by while the investment bank misled investors about its financial health and as such contributed to the financial crisis. It is about time the prosecutors go after the enablers and collaborators. Hopefully, other states and the federal government will join the prosecution.
-- Under a non-prosecution agreement with the U.S. Attorney's office in Manhattan and the IRS, Deutsche Bank agreed to pay a US$553.6M fine and admit criminal wrongdoing in a long-running probe of the bank’s sale of certain tax shelters marketed by KPMG LLP between 1996 and 2002. Prosecutors claim the tax shelter scheme generated billions in false tax losses.

Comments and contributions from Update no.470:
Comment to the Blog:
“I will leave the body of this week's Update alone. I have a headache at this moment, and discussing politics right now will only aggravate that.
“I regret that I did not receive your reply to my posting as I usually do. I would certainly have replied to that.
“Re: your discussion of “empire”; if we do not assume the control of the other nations involved to be necessarily a formal, legal control, we’re back to a valid definition. Certainly in terms of economic control, the simile holds, thus fitting the definition of “neocolonial.” My parallel for this is “war,” specifically in Korea, Vietnam and Iraq. None of those was a “war” in the legal sense, but people shot at one another, dropped bombs, etc. If we look at actual events rather than legal definitions, Vietnam was a war and the US has an empire.
“Whether the U.S. remains an influential player on the world stage remains to be seen. The trend can be derived from statistics taken over the past twenty years. Such information as I have seen points to a decline in US leadership in most fields, with notable exceptions for military spending, energy consumption and consumerism.
“I will skip the details of integrating gay and lesbian people into the U.S. military. I share your hope and assumption that the process will proceed approximately as racial and gender integration have.
“I study the most interesting subjects in depth rather than attempt to keep up with all fields. Thus, I have come to understand addiction to a reasonable level. I still contend that your plan fails to deal with the human factors of addiction. My quote on this one for this week is from my Organizational Communication textbook. "It's not what you tell them, it's what they hear." That one comes from Arnold Auerbach, a successful basketball coach.
“You are an engineer, and it shows in your ideas. Among other things, you do not reckon with the families of addicts. Plenty of the families discourage addicts (including alcoholics) from seeking treatment even when the addict is ready. How many more will keep people out of your camps by any means available?”
My response to the Blog:
Interesting analysis re: empire. I will not quibble, and we shall respectfully disagree. I do not think the United States has ever sought empire by any definition.
Like so many things, “influential” depends upon context, definitions, expectations and such. Frankly, I do not care whether the United States is influential on the world stage or not. My primary concern remains protecting the Life, Liberty, and pursuit of Happiness for the American People. Whether Americans are perceived as influential is irrelevant. What matters is freedom – freedom of travel, freedom of trade, and peace on earth.
We are agreed regarding non-heterosexual integration in the military (and eventually in American society at large).
“Red” Auerbach is spot on, correct; stated in a different manner, perception is reality. Yes, you are correct. I have failed to deal with the “human factors of addiction.” I am not sure why that is relevant. My stated objectives mentioned nothing about treating of addiction. I think most folks familiar with addiction recognize, there is no treatment for addiction . . . until the addict internally decides to abandon his addiction. Until that point, there is nothing any of us can do to stop his addiction. My sole or rather primary objective is to eliminate the collateral damage the addict’s addiction causes to other citizens and society in the main. I choose to recognize and accept the right of the addict to consume their substance(s) of choice in their pursuit of Happiness. I do not want to understand the addict; I simply want to prevent the addict from hurting anyone else. When the addict decides and commits himself to overcoming his addiction, I would support appropriate treatment. I simply recognize the power of addiction and acknowledge than I am powerless to stop the tide.
You make a good point. The enablers are a perverted twist. Under my proposal and your scenario, an enabler who purposely discourages or prevents treatment, and perpetuates addiction would eventually be discovered and overcome. I would also argue such conduct is criminal – no different from physical abuse. I can imagine there are evil people who fit that scenario, and in that case, the enabler is injuring the addict, just as a deranged parent or guardian might physically abuse a child. Most enablers I know are victims of the addict’s addiction as well; I’ve not met one enabler who sought to perpetuate the addict’s addiction, but I can imagine they exist.
A postscript to my response:
After I sent my reply and after her work, I talk to our daughter who works for a privately owned, out-patient, addiction recovery service. I read her what you wrote, specially “Plenty of the families discourage addicts . . .” I asked if her experience validated your observation. Her answer, “Oh yeah, everyday; it is a constant challenge.” She mentioned they have seen spouses, parents, other enablers and such who act as you noted, for a host of reasons like a false sense of superiority or caring, protection of their selfish economic interests, ad infinitum. She went on to say, “When you take away somebody’s pain, you take away their ability to change.” I interpreted your observation as suggesting criminal culpability, which I doubted occurred. Jacy corrected me; they see it all . . . the worst of humanity.
I still think my point is correct. My proposal will eventually separate the addict from his enablers. Once the addict can no longer abide the rules, he is given the option to voluntarily enter the isolation camp or face criminal prosecution for endangering other citizens. Conversely, as long as the addict causes no injury or potential for injury to others, then they stay on their own.
Nonetheless, valid point and important topic of discussion. No system will be perfect. There will always be those that slip through the cracks. Thanks for raising those important points.
. . . a follow-up comment:
“On a relatively personal note, you might want to spend time talking to your daughter about her work. It would expand your horizon at the same time it would give you much more depth on the human factor. (Non-addicts are not as different as they may seem from addicts, and there are a great many addicts.) She is an unusual asset: a person you love whose professional experience and perspective will be very different from yours. I imagine each of you can gain from the other.”

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


Calvin R said...

I guess I'll begin with the Macondo Well/Deepwater Horizon issue. First, I'll point out that the "cold facts" aren't always all that cold. People made decisions about what to include in the reports and how to interpret that. (More on the "human factor" below.) Beyond that, I have no petroleum engineering background to help me understand the reports, nor do I have the leisure time available to read them even if I could understand. I share this with most of the population. Those who read the New York Times story and other in-depth reports will be a minority, but will be more informed than most people. I myself may settle for a summary of the Times story, together with similar sources that I follow. Most people will retain some part of what their TV news tells them, if they watch even TV news. My point is that if you seek to sway public opinion, you need to recognize that little to no technical information will actually reach most of them and what does will not be written by experts but by reporters.

As far as Professor MacMillan's discussion of reparations, I suspect that upon further study I would disagree with her particular conclusions. More importantly here, I do not believe that the reparations issue compares realistically with the European Union financial mess. Especially, the World Wars were brought about by national governments; the financial disasters were brought about by bankers and investors. As a result of that, the damages addressed by the Treaty of Versailles were done by national armies acting as the agents of their governments, which were then penalized, fairly or unfairly. The current financial damages trace back to corporate interests. While lax or corrupt regulators undoubtedly played a part, the comparison to the Treaty of Versailles is not accurate.

While the FCC has at last addressed Net neutrality, someone will have to define what is "unreasonable" discrimination. Given the current regulatory climate, people paying more money to providers could achieve discrimination in their favor and this might not be seen as "unreasonable."

In the discussion of "Don't Ask, Don't Tell" (DADT), my first point is that I agree with you about the danger of "yes men." However, the military, generals and all, ought to keep its discussions internal, not in the media. At all times in all ways, the military must submit to civilian control. The appropriate thing for each of these generals to express to the pres is, "We will carry out the will of the President and the Congress. Our personal opinions play no part in that."

The report you summarized seems a pretty reasonable plan for implementing the repeal of DADT. The benefits issue will frustrate people, but a waiting period fits the situation. Some of the corporations are actually ahead of the government in this respect, but it's appropriate for the military to await some level of clarity from the civilian government.

I will note that it took nine years to pass the bill in support of the survivors of 9/11. That is a disgrace. We rush to kill people overseas who may or may not be a threat to us, but it took this long to help those actually harmed already. That portends more trouble for veterans, too. It seems that once people serve their purposes, the government loses interest in them.

I commend to you the study of the human factor. Regardless of engineering excellence or contribution to humanity, human factors shape every decision made by humans. Whether and how someone understands what they read and hear and how they respond to it will always be influenced by their emotional state, their personal history, and their beliefs about people. This influences the results of everything you discuss here.

Cap Parlier said...

Re: Macondo Well disaster. Very well said and spot on, which is precisely why I am compelled to look beyond the Press reports to the facts. I have too much first hand experience with the Press sensationalization of accidents – aircraft, automobiles, and even oil wells. I understand the short space the Press has to convey their opinion of an accident. The Times essay on the Macondo Well disaster was very well done, good graphics, and exceptional rendition of the consequences to the personnel. However, they failed to represent the cause factors, as is usually the case; they simplify the cause factors too much. As a consequence, the Times’ very impressive essay leaves the public with the image that BP, Transocean and Halliburton are either inept or felonious in their operation of the Deepwater Horizon rig, which is not an accurate representation of the facts. Thus, the public has an erroneous view of deepwater oil exploration or at least the conduct of those companies in such operations, and bad political decisions will often result.

Re: Treaty of Versailles. Well said all the way around.

Re: Net Neutrality. Again, well said. There are valid reasons for the government to regulate Internet access and capacity. However, perhaps because I have not felt an access or capacity issue with my Internet usage, I am not the most fearful of access. The privacy concerns are far more insidious and thus far more vulnerable and sensitive.

Re: DADT. I believe General Amos’ comments were before a congressional committee. It is public, but not the media . . . even though the media covers public hearings. General Amos stated the professional opinion of the Marine Corps he leads and represents, not the politically correct desired response – his professional obligation, I contend. General Amos was very careful to add that the Marines will do their duty. If my experience with racial integration in the 1960’s & 1970’s has any validity, I think the Marine Corps will set a very high standard of performance in accomplishing the objectives of the implementation plan. Semper Fidelis!

Yes, there are confounding and complicating contrary laws that must be resolved and reconciled before all citizens achieve equal rights and protection under the law without regard to sexual orientation.

Perhaps your assessment of the government’s performance regarding the 9/11 health benefits is a bit harsh.

Human factors engineering has been an important discipline of engineering in general for many decades and a very important part of cockpit design. I must add in all fairness . . . my assessment of the Deepwater Horizon controls, while sophisticated in the mechanical aspects of deepwater oil drilling exploration, seem to lag aviation engineering by a substantial margin with respect to situation awareness and human interaction. Based on all the information I have seen, the DH operators lacked good situational awareness and hesitated when timely decisions were required. Rig designers and operators will learn from the Macondo accident and will make future accidents less likely.

“That’s just my opinion, but I could be wrong.”