Update no.454

Update from the Heartland

No.454

23.8.10 – 29.8.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- It seems we have another clot in the churn. On Monday, a Federal district judge issued a preliminary injunction against the National Institutes of Health (NIH) prohibiting the expenditure of Federal funds for embryonic stem cell research [146 et al] – Sherley v. Sebelius (see review below).

“Far from Ground Zero, other plans for mosques run into vehement opposition”
by Annie Gowen
Washington Post
Published: Monday, August 23, 2010
http://link.email.washingtonpost.com/r/AADB45/WLL23B/LQSTCC/PC32P6/O8ZI7/6C/h
No one asked for my opinion, but Annie’s reportage on the mosque issue along with the incessant Press coverage of the well-known Ground Zero mosque kerfuffle pushed me over the edge. In the context of the on-going War against Islamic Fascism, the specific topic as well as the broader concern for the freedom and rights of American citizens of the Islamic faith. We tend to fear what we do not understand. This apparent anti-Muslim rhetoric is hardly worthy of American ideals. We have a reasonable public requirement for building architecture consistent with the community. However, the attempts of a few vocal citizens to deny permission for an Islamic center and mosque near Ground Zero is contrary to the essential and vital principles upon which this Grand Republic was founded two plus centuries ago. Surely we can find balance in this debate. Lastly, is our faith that weak and fragile that it cannot endure public debate and challenge? Are we that fearful of those not like us? I believe we are much stronger than this debate and this issue suggests.

I am reticent to give any religiously motivated bigotry anymore words than the Press already does; however, the Gainesville, Florida, former hotel manager cum minister of the Dove World Outreach Center – Terry Jones, 58 – demands my condemnation. This is the yayhoo who attracted national and international attention when he announced his intention to burn copies of the Islamic sacred book Quran. Book burnings seem to be a popular activity for hate-filled folks who cannot tolerate anyone not like them. This latest despicable example is quite akin to perhaps the most infamous such event on the evening of 10.May.1933 in Berlin, Germany. Freedom means people like Terry Jones can be as idiotic as they wish. Regrettably, such idiots are illuminated by the Press, and radical Muslims see only what they want to see to fuel the fires of their equally irrational rage. And so it goes.

With the mosque debate expanding exponentially by the day, I note this opinion article:
“The last refuge of a liberal”
by Charles Krauthammer
Washington Post
Published: Friday, August 27, 2010; page A21
http://link.email.washingtonpost.com/r/F490YD/S33A3Y/S3U055/HTSL57/8QBJL/SN/h
Charles gave us an interesting admonition.
“[P]romiscuous charges of bigotry are precisely how our current rulers and their vast media auxiliary react to an obstreperous citizenry that insists on incorrect thinking.
“-- Resistance to the vast expansion of government power, intrusiveness and debt, as represented by the Tea Party movement? Why, racist resentment toward a black president.
“-- Disgust and alarm with the federal government's unwillingness to curb illegal immigration, as crystallized in the Arizona law? Nativism.
“-- Opposition to the most radical redefinition of marriage in human history, as expressed in Proposition 8 in California? Homophobia.
“-- Opposition to a 15-story Islamic center and mosque near Ground Zero? Islamophobia.”
Such pronouncements play to the faction of our citizenry who see American culture and society in very binary terms and shun those not like them. I am also struck again by the contrast. Apparently, the new definition of “big government” is what the other guys are doing when they have control, while my definition of “big government” is involvement beyond the Constitution, i.e., intrusion into the private lives and choices of citizens (that cause no harm). Webster’s Dictionary defines bigotry as “regarding or treating members of a group with hatred and intolerance.” So, if the shoe fits . . .

U.S. District Chief Judge Royce C. Lamberth of the District of Columbia issued a preliminary injunction against spending by the National Institutes of Health on embryonic stem cell research – Sherley v. Sebelius [USDC DC civ. no. 1:09-cv-1575 (RCL) (2010)]. Plaintiffs in this case are Doctors James L. Sherley and Theresa Deisher, Nightlight Christian Adoptions, Embryos, Shayne and Tina Nelson, William and Patricia Flynn, and Christian Medical Association; they are also researchers in the arena of Adult Stem Cell (ASC) research. Plaintiffs allege the Federal government violates the Dickey-Wicker Amendment, which was enacted as § 128 of the Balanced Budget Downpayment Act (of 1996) [PL 104-099] that prohibits any funds being used for:
(1) the creation of a human embryo or embryos for research purposes; or
(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research under applicable Federal regulations.
According to the court’s document, the Dickey-Wicker Amendment has been included in every Health and Human Services (HHS) appropriation since 1996 without substantive alteration, up to and including the most recent bill prior to this case – Omnibus Appropriations Act of 2009 [PL 111-008] [378]. As a side note observation, why is it that so many socially significant (and this case scientifically important) laws are buried in massive government appropriations bills? They imbed massive earmark spending pet projects and highly intrusive social enforcement programs in legislation they know the President is not likely to veto. We get to pay the bills and suffer further erosion of our most fundamental freedoms. Anyway, back to the current topic. Two days prior to signing the 2009 HHS appropriations bill into law, President Obama issued Executive Order 13505 titled “Removing Barriers to Responsible Scientific Research Involving Human Stem Cells,” which rescinded President Bush’s 9.August.2001 policy statement and his Executive Order 13435, titled “Expanding Approved Stem Cell Lines in Ethically Responsible Ways” of 20.June.2007. A month after the President signed the order, the NIH issued its “Guidelines for Human Stem Cell Research.” Surprisingly, the claims in this case were not about the ethics of Embryonic Stem Cell (ESC) research rather the issue was money. The judge acknowledged, “Plaintiffs are researchers who work exclusively with ASCs,” and “The Guidelines, by allowing federal funding of ESC research, increases competition for NIH’s limited resources. This increased competition for limited funds is an actual, imminent injury.” For all the judicial pronouncements I have read over the years, this one has now taken over infamous primacy for shallow, obviously biased, and dramatically injurious judicial pronouncements. Like the Hornbeck injunction [445], the consequences and collateral damage vastly exceed the very narrow protections. Beyond my disappointment in the Sherley ruling, the political and ethical dimensions remain. So, I ask, what does “embryos . . . are destroyed” mean? Does a cell or cells known as an embryo exist outside the uterus? If the cells are replicated ad infinitum, are they destroyed? To allow such important questions to be sidelined by money is just flat wrong. I trust the government will energetically appeal this terrible injunction. Let us debate the issues associated with embryonic stem cell research vigorously in the bright illumination of Debater’s Corner.

“International adoption: From a broken bond to an instant bond”
by Michael Gerson
Washington Post
Published: Friday, August 27, 2010
http://link.email.washingtonpost.com/r/F490YD/S33A3Y/S3U055/HTSL57/HUATZ/SN/h
After reading through the Sherley ruling (above) and then reading Gerson’s opinion article, the juxtaposition struck me like a 2x4 up’side the head. Yes, absolutely, without equivocation, Gerson is spot on. The generosity and dedication of American families who expend extraordinary effort to adopt unwanted children from other countries is glorious testament to their magnanimity . . . and to a certain extent offer validation of the essential principles of this Grand Republic. Yet, what strikes me is the contrast. The abortion issue has so colored, polarized, clouded, divided and corroded reasonable political intercourse that some of us turn to international children when we have a bountiful supply of needy children right here. Some of us seek the power of the State to take possession of every woman’s uterus. Some of us want the State to prohibit every form of birth control. Some of us want to confine sex to only adult, heterosexual, monogamous marriage for procreation only, and pretend sex does not and should not exist for any other reason for anyone else. We expend far more energy trying to control the lives of other citizens than we do helping children in need. I join Gerson in praising those who open their hearts, homes and families to children in need from other countries; however, once again, I urge Congress to create a national adoption trust to help Americans to find American children in need.

One month after United States v. Strandlof [USDC CO 1:09-cr-00497-REB (2010)] [450], the 9th Circuit Court of Appeals added its opinion regarding the constitutionality of the Stolen Valor Act of 2005 [PL 109-437] – another false claim of military honors case. In 2007, Xavier Alvarez won a seat on the Board of Directors of the Three Valleys Municipal Water District [eastern Los Angeles County, California]. On July 23, 2007, Alvarez arose and introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” As the appeals panel unanimously noted, the only element of truth in his public statement was he was alive. Circuit Judge Milan Dale Smith, Jr. delivered the ruling of the 2-1 panel in United States v. Alvarez [9CCA no.08-50345 (2010)]. This ruling deals with the legal protections afforded knowingly made “false statements of fact.” The majority places the threshold to the liberal side of margins. They take a far broader position of protection, limiting vulnerability to only defamatory or fraudulent false statements. Our common law does NOT protect speech that is lewd and obscene, profane, libelous, insulting or ‘fighting’ words – the very utterance may inflict injury or tend to incite an immediate breach of the peace – or other forms of speech are considered to have such low value speech that they are afforded little if any protection including: “insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business.” The court decided false claims of receiving military medals of combat valor in violation of the Stolen Valor Act was not worthy of being prosecuted and being added to the list of unprotected speech under the 1st Amendment. The court concluded, “[G]iven our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment. The government has not rebutted that presumption here because the Act is not sufficiently analogous to traditional permissible restrictions on false speech.” Some of this particular debate depends upon the weight or value we, as a society, place upon combat valor medals – Medal of Honor, Navy Cross, Silver Star, Purple Heart, et al. If we see them as simple artifacts of past events, rather than their symbolic recognition for courageous action under enemy fire, then perhaps Judge Smith is correct. The majority rationalizes protection for such false statements based on the capability that the facts can be readily checked, using the “Congressional Medal of Honor Society, Recipients, http://www.cmohs.org (last accessed Mar. 31, 2010); Congressional Medal of Honor Foundation, http://www.cmohfoundation.org (last accessed Mar. 31, 2010).” He does not mention how folks are to check recipients of other applicable medals; I guess that was not important to these judges. Circuit Judge Jay Scott Bybee dissected the majority’s opinion in his dissent. He noted, “[T]he majority’s principle rests on a line of reasoning that I cannot endorse: that our jurisprudence should rest on what we think the Supreme Court ‘means’ rather than what it actually says.” Bybee went on to say, “The likelihood of a ‘bona fide harm’ has nothing to do with whether a category of speech loses First Amendment protection.” He concluded, “[T]he better interpretation of the Supreme Court’s cases and those of our court is that false statements of fact— as a general category—fall outside of First Amendment protection except in certain contexts where such protection is necessary ‘to protect speech that matters.’” Bybee’s conclusion was that Alvarez’s bald-faced lie was not “speech that matters.” I emphatically agree with Judge Bybee. It is against numerous laws in every state of the Union to impersonate a doctor, a lawyer, or a police officer. What is the difference with a decorated combat warrior? We place restrictions on commercial speech; companies cannot mislead the public. So, what is the difference? Why does someone claim to be a Medal of Honor or Navy Cross recipient and combat veteran? Is “bona fide harm” only tangible harm or does it include the intangible, i.e., a vote cast or business given as a result of the false claim – influence rather than monies or assets? Is it harm if a community puts a person like Alvarez in a leadership position, expecting comparable courage as he has falsely claimed; is that harm? We restricted obscenity because it has a “recognizable harm,” which is patently not true – it is perceived or intangible harm at best. So, the court’s august judgment obscenity causes harm but a false claim of being awarded the Medal of Honor for conspicuous gallantry in combat service to this Grand Republic does not cause harm. Interesting! I think the Alvarez and Strandlof rulings say more about the lack of sufficient value the associated judges place on military valor medals, despite the fact that Congress and the President have made that value statement in fact and substance. If the issue at hand was simply a citizen telling a lie, I would agree with the court. If the case was about the government dictating acceptable speech, then I would agree with the court. Despite the court’s myopia, military honors are NOT speech. They are NOT self-existing or self-generating. They cannot be bought, acquired, traded, or otherwise amplified or altered. They are solemn recognition on behalf of a grateful nation for valor in combat or for specific services rendered to this Grand Republic. Xavier Alvarez knowingly, purposefully and blatantly violated a specific, direct, narrow law, and deserves to be punished for his transgression. The 10th Circuit has not yet weighed in on the appeal of Strandlof. I would expect one, both, or any other cases to reach the Supremes. I trust the Court will make this right. Sooner the better from my perspective!

News from the economic front:
-- The National Association of Realtors reported existing home sales decreased in July to an annual rate of 3.83 million – down 27.2% – the lowest level in 15 years, a record period decline and nearly twice as much as analysts had expected. Inventories rose to 12.5 months from 8.9 months in June – the highest level in more than a decade – further pressuring already depressed home prices. I think we all knew the correction was coming, but that does not make it easier to endure.
-- The Commerce Department reported new home sales fell in July to a seasonally adjusted annual sales pace of 276,000 – down 12.4% from the prior month – the slowest pace on record dating back to 1963.
-- The U.S. GDP rose at a seasonally adjusted annual rate of 1.6%, less than the 2.4% growth initially estimated. In the first quarter, the economy expanded 3.7%.
-- Perhaps understating the obvious, Federal Reserve Chairman Ben Bernanke said the pace of the nation's economic growth “recently appears somewhat less vigorous” than expected. He suggested the U.S. economy is on track to continue growing, and the central bank was prepared to intercede, but would only take new action if conditions worsen further.

Comments and contributions from Update no.453:
Comment to the Blog:
“I'll skip the legal side of the Proposition 8 discussion; I'm not qualified and I doubt that this is the important part of the debate. I will, however, note that Edwin Meese and many others have made lucrative careers since the Reagan administration by espousing any conservative position whatever, regardless of legitimacy. We may reasonably hope for their retirements to begin within about five years.
“You and I are both old enough to remember Vietnam. That included a very similar attempt to disentangle US combat troops. As I recall, it failed.
“As far as the Wikileaks issue, we have discussed undeclared (and, in this case, untargeted) wars before. Most likely, that absence of such a declaration under Bush will come back to bite the current administration. The speed with which the apparently spurious rape charges were withdrawn seems to indicate an even less capable Plumbers unit than Nixon's.”
My reply to the Blog:
Like so many social conservatives, they know precisely how everyone else should live their lives, and they are quite comfortable using the law to dictate morals and private conduct to all citizens. Yet, the truly sad element common to virtually of these moral projection issues is a denial of freedom of choice to other citizens not like them.
I suppose it is a worthy topic of debate whether Nixon’s disentanglement from Vietnam failed.
Yes, we have discussed the absence of a formal declaration of war. We have also discussed the legal meaning of the Authorization(s). The WikiLeaks case is far from over, and the consequences could affect our national security for decades if not generations.

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

Update no.453

Update from the Heartland

No.453

16.8.10 – 22.8.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- Well, the California Proposition 8 Proponents beat Judge Walker’s deadline from Perry v. Schwarzenegger [USDC CA(ND) no. C 09-2292 VRW (2010)] [452]. On Monday, a three-judge panel of the 9th Circuit Court of Appeals indefinitely stayed the district court order and directed the parties to prepare their appeal briefs to be ready as early as next month. I am reminded that the issue IS NOT whether we support, agree with or should tolerate non-heterosexual marriage; the issue IS truly whether we have a compelling public interest in denying equal rights to other citizens who make different private choices than us.
-- The private security company Xe (AKA Blackwater Worldwide) [420] reached a settlement with the State Department for hundreds of violations of United States export control regulations. The company agreed to pay US$42M in fines as the company continues its rehabilitation.
-- Eighty-Nine (89) months after Operation IRAQI FREEDOM began [069], the Obama administration announced the last combat troops departed Iraq (crossing the border into Kuwait); 4th Stryker Brigade, 2nd Infantry Division, completed their egress. After all the bally-ho, the reality is five divisions worth of troops, a substantial portion of which are combat capable, remain in Iraq . . . just in case.

In the continuing debate of Prop H8 and non-heterosexual marriage, the former United States Attorney General Edwin “Ed” Meese III (1985-1988) [currently, chairman of the Heritage Foundation's Center for Legal and Judicial Studies] offered up his opinion, which is worthy of consideration.
“Prop. 8 ruling ignores precedent, evidence and common sense”
by Edwin Meese III
Washington Post
Published: Tuesday, August 17, 2010
http://www.washingtonpost.com/wp-dyn/content/article/2010/08/16/AR2010081604254.html?wpisrc=nl_politics
Ed chose to apply his legal knowledge and experience to avoid the central issue in interpreting the law, along with his attempted diminishment of Judge Walker’s ruling in Perry [452]. Ed wrote, “By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.” He concluded, “The rule of law demands more careful consideration of this important issue than Walker's decision delivered.” The only Supreme Court decision he selected to support his opinion – Baker v. Nelson [291 Minn. 310 (1971)] – was actually an appeal of the Minnesota Supreme Court ruling that the Supremes dismissed off-hand as containing no Federal argument. I would not expect Ed to support equal rights for all citizens, but his rather shallow rebuttal to Perry is truly disappointing and dissing Vaughn Walker should have been beneath him, but suggesting Baker is definitive law regarding equal rights for non-heterosexual citizens is deceptive and flat wrong. This is the kind of pseudo-expert drivel that feeds ignorance.

This is not the only forum to which I write. The first letter to the editor to which I responded:
“If gay marriage, why not polygamy?”
by Bill LaPorte [of Moran, Kansas]
Wichita Eagle
Posted on Friday, August 13, 2010
http://www.kansas.com/2010/08/13/1444996/letters-to-the-editor-on-gay-marriage.html
[My] Letter to the [Wichita Eagle] Editor,
Bill LaPorte poses an interesting question for public debate. “If gay marriage, why not polygamy?”
OK, I’ll bite. Why not?
“Tradition alone, however, cannot form a rational basis for a law.” Williams v Illinois [399 US 235 (1970)]. The State must have a compelling interest dictating how private citizens are to live their private lives, to regulate their freedom of choice regarding “Life, Liberty and pursuit of Happiness.”
We all know, recognize and acknowledge the dicta of traditional marriage. I have no quarrel with those dicta. Yet, aren’t the choices for our private relationships personal and private? I certainly do not want other folks telling me how I am to conduct my life or my marriage. I feel no urge to judge the marriages of other citizens.
We do have a right to demand certain standards and limits for those who cannot manage their private affairs and place demands upon the public domain. We also have a responsibility to make sure that any citizen entering into a marriage contract does so freely, without coercion or pressure, and is able to consent to such relationships.
So, I ask, what are the compelling State interests in dictating how private citizens choose to live their private lives whether traditional, homosexual or polygamous?
. . . the second letter:
“doubt Obama is Christian”
by Margaret Talev
Wichita Eagle [McClatchy Newspapers]
Posted on Friday, August 20, 2010
http://www.kansas.com/2010/08/20/1454722/doubt-obama-is-christian.html
[My] Letter to the [Wichita Eagle] Editor,
Freudian slip, perhaps? The title on the above-the-fold, front page article in Friday’s newspaper was “Obama: No doubt Obama is Christian,” yet the title of the paper’s associated website article was “doubt Obama is Christian.” Odd, no?
What a truly sad, disappointing and even a little disgusting commentary on contemporary American society and culture. Questioning a man’s religion is living testament to the need for Thomas Jefferson’s “separation of church and state.”
Commentators on the day of the Eagle’s article expounded on prevalent public opinions that a non-Christian would never be elected President of the United States of America. Since when does religion become a pre-requisite for leadership, even including political leadership? Oh really! Why are we so bloody afraid of those who are not like us? Why do so many Americans believe that because his name is Barack Hussein Obama he must be a secret Muslim, claiming to be Christian to get elected? I say, so what? Why does religion define our competence to lead?
This Grand Republic has always been the beacon in the fog, the sanctuary for the downtrodden, abused and persecuted, and the haven for those who seek to be free. Demographics indicate nearly 80% of Americans consider themselves Christian. Is our faith that fragile that we must condemn those who do not believe as we believe?
As much as I would really like us to grow up, to mature, as a society, I am far more interested in realization of the ideal that formed this great nation – freedom. Freedom for all citizens regardless of the social factors – age, gender, religion, race, ethnicity, political affiliation, sexual orientation, or disability. Let us not condemn those who are not like us.

The controversy surrounding the recent WikiLeaks classified document disclosures [450] brought remembrance of an important Supreme Court case from my generation’s war – New York Times Co. v. United States [403 U.S. 713 (1971); no. 1873] – that rings strikingly similar tones to the contemporary version. Four decades ago, Daniel Ellsberg betrayed the trust the Nation placed in him, when he turned over to the New York Times, a 47-volume, 7,000-page, TOP SECRET document titled “History of U.S. Decision-Making Process on Viet Nam Policy,” AKA the Pentagon Papers. The document had been commissioned by Secretary of Defense Robert Strange McNamara in June 1967, covered the period from World War II to May 1968, and was completed in January 1969. Ellsberg stole the document and turned it over to the Times in early 1971. The case, precipitated by the Times, short-circuited the judicial process and demanded the Judiciary render judgment in substantially less time than the newspaper had to pour over the illegally disclosed documents. Chief Justice Warren Earl Burger drew pointed attention to that reality and the imprudent haste demanded of the Court. The Times published the first installment on Sunday, 13.June.1971. An injunction was immediately sought and granted, along with a feverish flurry of judicial activity. The case was argued before the Supremes on 26.June.1971, and the decision rendered on 30.June.1971. Associate Justice Harold Andrew “Harry” Blackmun observed, “Two federal district courts, two United States courts of appeals, and this Court - within a period of less than three weeks from inception until today - have been pressed into hurried decision of profound constitutional issues on inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should characterize the American judicial process. There has been much writing about the law and little knowledge and less digestion of the facts.” While the consequences of the legal interpretation are profound, it is the haste of this decision that dominates the outcome. The New York Times expertly manipulated the courts to its will, its agenda and its timing. We cannot help but admire the expertise of the Times editorial and legal staff. The 1st Amendment is direct and succinct: "Congress shall make no law . . . abridging the freedom . . . of the press . . . .” Associate Justice Hugo LaFayette Black equally and succinctly summarized the Court’s ruling, “[N]o law means no law.” Hugo acknowledged the expanded power of the Executive to impose on a citizen’s 1st Amendment rights during wartime; however, he closed off that line of reasoning, “But the war power stems from a declaration of war.” As Associate Justice William Orville Douglas noted, substantial weight was applied to the reality that the government did not seek and Congress did not pass a “declaration of war.” Does that sound familiar? Hugo concluded, “To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’” The argument is valuable, cogent and apropos. As with so many aspects of finding balance in a free society, we must define the limits – the thresholds – that establish and maintain balance. The Court argues the Press should have been commended for publishing the Pentagon Papers . . . apparently all because the Executive chose not to ask Congress for a declaration of war. As I tend to do in assessing such questions, would the Court’s opinion be the same if the betrayed documents had been a pending operations plan instead of a retrospect of decision-making? What if a dissatisfied civil servant in 1944 provided the documents of Operation OVERLORD to the New York Times, and the newspaper felt it had a free press obligation to publish operations plan? After all, what a magnificent news scoop that would be in April 1944 – imagine the sensation and notoriety for the newspaper – instead of thousands of lives lost, we might have lost tens of thousands and the invasion of Nazi-occupied Continental Europe might have failed on that Tuesday morning in June. Would the government enforceability depend solely on a congressional declaration of war? As a consequence of the 1971 Times ruling, the government faces daunting obstacles to prosecute WikiLeaks. As a by-the-by, Daniel Ellsberg was charged with multiple violations of the Espionage Act of 1917 [PL 65-030] and other statutes. The trial began on 3.January.1973. After President Nixon’s cronies worked numerous dirty tricks against Ellsberg, U.S. District Judge William Matthew Byrne, Jr. dismissed all charges against Ellsberg on 11.May.1973, citing gross misconduct by the Executive [and I think Judge Byrne was being kind, i.e., understating the seriousness of the government’s violation of Ellsberg’s constitutional rights]. I condemn Ellsberg’s betrayal; however, what Nixon’s “Plumbers” did make Ellsberg’s crimes look like spitting on the sidewalk.

A joint investigation by the Army and the Federal Bureau of Investigation into the WikiLeaks disclosure of classified documents has begun and is in the early stages. As noted above, prosecution will not be easy. Julian Paul Assange, 39, the rather nomadic Australian founder of WikiLeaks, has publicly indicated more American military classified documents are being processed for disclosure. In an odd twist and yet again another eerie similarity to the Pentagon Papers days, the Swedish government issued a warrant for the arrest of Assange on suspicions of rape and molestation; then, only hours later withdrew the warrant. Have a new generation of the “Plumbers” been created? I am no fan of WikiLeaks, but Nixon, his cronies and the “Plumbers” (and I should throw in J. Edgar Hoover) did far more damage to this Grand Republic than Assange and his website. In a free society, the ends do not justify the means.

News from the economic front:
-- The Associated Press reported that congressional budget analysts see the 2010 deficit exceeding US$1.3T – below the 2009 deficit.
-- As the Washington Post noted, Democrats say we need more stimulus, Republicans say we need less regulation and lower taxes; however, CEOs say they just don't trust American consumers will open their wallets in the coming years.

The Blago Scandal [365]:
-- Headlines read: Blagojevich – 23, Fitzgerald – 1. The sensationalized titles seriously overstate the results as Blago’s jury reported; it might have been appropriate if the jury had found him not guilty on 23 counts, but they did not. The jury reported that they could not arrive at a unanimous verdict on those 23 charges – a hung jury, neither guilty nor not guilty. The ever ebullient Blago will spin the results of his corruption trial to be vindication – rather obtuse reasoning, but that’s Blago. While he does so, let us not forget that in our system of trial by jury it only takes one (1) of 12 jurors to resist finding a defendant guilty, for any reason, whether that person finds Blago’s coiffure attractive, or his public narcissism and self-aggrandizement endearing, to cause a mistrial. Let us also not forget the travesty of 15 years ago when another jury of peers overcame substantial physical evidence to acquit a high-profile murderer. Yet, at the end of the day, this is our system, for better or worse, and so it shall be.

No comments or contributions from Update no.452.

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

Update no.452

Update from the Heartland

No.452

9.8.10 – 15.8.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- The Labor Department and BP agreed upon a record US$50.6M fine for the company’s failure to fix safety hazards cited at its Texas City, Texas, oil refinery after a 2005 explosion that killed 15 workers. The government continues discussions with BP to resolve more than US$30M in additional fines proposed for subsequent alleged violations at the Texas City facility.

The blooming public debate regarding the value and viability of the United States Marine Corps in the national security process offers us an opportunity.
“Gates Orders A Review Of Marines' Role – Defense chief aims to define Corps' future amid fears it's become another ground force.”
by David S. Cloud
Los Angeles Times
Published: August 13, 2010; Pg. 6
I find it interesting that the civilian leadership chooses to employ the three Marine division and air wings as conventional ground / air forces, and then wonders why we need a second land army. Perhaps Gates & his staff are considering whether the United States needs a rapidly deployable expeditionary force capability. While the DoD staff considers future of the Marine Corps, they are also considering significant cuts in defense spending, to include elimination of Joint Forces Command and reduction of contractors.

No one has asked me for an opinion regarding the Ground Zero mosque kerfuffle, so I shall keep my powder dry.

In last week’s Update [451], I noted United States District Court Judge Vaughn R. Walker’s ruling in the case of Perry v. Schwarzenegger [USDC CA(ND) no. C 09-2292 VRW (2010)]. My review took most of 10 days after the decision, but I finally got through the 138 pages. In May 2008, the California Supreme Court decided six related, non-heterosexual marriage cases – In re Marriage Cases [CA SC S147999 (2008)] [336]. As a result, concerned residents filed the necessary documents to present Proposition 8 to the voters the following November, which passed by 52% and amended the state constitution to restrict marriage to one man and one woman. Affected residents challenged the referendum to the state supreme court – Strauss v. Horton [CA SC S168047 (2009)] [389]; the court validated the Proposition 8 initiative as compliant with the state’s constitution and laws. Two California, non-heterosexual couples – Kristin Perry & Sandra Stier, and Jeffrey Zarrillo & Paul Katami – filed suit in Federal court, claiming Proposition 8 violated their rights to equal protection under the law and due process. The constitutional law odd couple of Ted Olsen and Dave Bois argued the case for the plaintiffs. We have debated the legal dimension of this issue through a variety of state and Federal courts for a decade. Judge Walker cited and analyzed the law quite well. He repeatedly stated from various Supreme Court cases that tradition or moral disapproval of a suspect class of citizens without a compelling state interest is not sufficient to sustain a law violating the constitutional rights of other citizens. However, the element of the Perry ruling that was the most stark and intriguing came in Judge Walker’s supporting observation. He noted, “With the exception of the Attorney General, who concedes that Proposition 8 is unconstitutional, the government defendants refused to take a position on the merits of plaintiffs’ claims and declined to defend Proposition 8.” Judge Walker further observed, “Plaintiffs presented eight lay witnesses, including the four plaintiffs, and nine expert witnesses. Proponents’ evidentiary presentation was dwarfed by that of plaintiffs. Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” Judge Walker went into meticulous detail to chronicle his observations. Beyond the prima facie law involved, the court record suggests to me that the proponents of Proposition 8, without the assistance of the state, chose to put up a rather lame defense, as if intentionally seeking to lose, so they would be in the appealee position for the inevitable appeals. As Judge Walker points out in graphic detail, there are multitudinous holes in the Proponents’ argument. I cannot possibly illuminate them all, however, I shall point to a few. Proponents, along with many other citizens, claim that a male-female, monogamous, married couple is the ideal for child rearing. My first reaction was, oh really! I could cite an endless list of examples where that notion is clearly and emphatically NOT TRUE, and yet, the State has done little to intervene on behalf of the children. Five decades ago, the precept would not have been disputed, but 2010 is not 1960. Judge Walker also noted the doctrine of coverture, which dictated that when a man and woman married, the woman lost her legal identity and became the property of her husband. The days of coverture are long gone, and the notion of “traditional” marriage should have passed at the same time. Another hard point of the Proponents’ claim lays on the existence of domestic partnership in California. Domestic partnership is essentially an exclusive scheme for non-heterosexual couples, since the arrangement is not available in California to heterosexual couples until one person is over 60 years of age, i.e., marriage is for heterosexuals, domestic partnership is for non-heterosexuals – separate but “equal.” Separate but equal has be debunked and abandoned for nearly six decades. Another odd observation, in their suit, the Plaintiffs claim the county clerks denied their application for a marriage license because applicants were the same gender; how did they know? Did they inspect genitalia? Were the applicants just being honest regarding their gender? One more tangent observation, one side or the other likes to attach the adjective “activist” to judges who rule against their respective position, i.e., an activist judge is one that does not agree with the speaker. Any social system taken to an extreme – dictatorship to communism – cannot be stable for people who value freedom. To take the Prop H8 homophobic claims to the extreme, public acceptance of homosexuality will contaminate our youth, causing them to become homosexual; then, if all marriages become homosexual, then no marriages would produce children. Any children produced would be accomplished by other means beyond biological procreation within a stable marriage (family unit). Clearly, the extreme, if it were even possible, would not be sustainable or even stable. Thus, the societal threshold of tolerance exists somewhere short of the extreme. As a society, we must rethink how we define marriage, family, child rearing, parental responsibility & accountability. When all is said and done, I suspect we may find that homosexuals are more committed to their family relationship than many heterosexuals. We may also find ourselves closer to the desired stable family unit for which we advocate for raising good, productive, law-abiding, peace-loving, “healthy, successful and well-adjusted” children. It is time to give all citizens the respect and freedom they deserve.

Of course, we have a plethora of related opinions that are part of the public debate.

As Judge Walker issued his ruling in Perry, he stayed the execution of his order for one week to allow for Proposition 8 Proponents to appeal. Before the end of the stay, the judge extended the appeal to this coming Wednesday, 18.August, after which date, if no appeal has been filed, California will be free to begin issuing marriage licenses to non-heterosexual couples, again.

“Governor wants gay marriages to resume”
by Kevin Yamamura and Susan Ferriss
Sacramento Bee
Published: Saturday, August 7, 2010
http://www.mcclatchydc.com/2010/08/07/98803/schwarzenegger-let-gay-marriages.html
The governor joined the plaintiffs in requesting the judge not extend his stay and reinstate issuance of state marriage licenses to non-heterosexual couples. The state attorney general also joined the governor for the plaintiffs. The twists & turns continue to unfold.

The opinion of conflict in this simple issue:
“The Marriage Ideal”
by Ross Douthat
New York Times
Published: August 8, 2010
http://www.nytimes.com/2010/08/09/opinion/09douthat.html?_r=1&th&emc=th

One sure hot-button for me has always been sanctimonious, self-righteous, holier-than-thou individuals who derive comfort from condemning the freedom of choice other citizen exercise toward their “Life, Liberty and pursuit of Happiness.”
“Judges accelerating moral decay”
by Cal Thomas
Wichita Eagle
Posted on Wed, Aug. 11, 2010
http://www.kansas.com/2010/08/11/1441873/cal-thomas-judges-accelerating.html
Dear ol’ Cal wrote, “The decision by a single federal judge to strike down the will of 7 million Californians — tradition dating back millennia (not to mention biblical commands, which the judge decided, in his capacity as a false god, to also invalidate) —is judicial vigilantism equal to Roe v. Wade.” Dear ol’ Cal espouses classic “I know what’s best for everyone else” syndrome. He loves to claim “moral decay” for everyone else who does not make choices of which he approves. Like all the rest of us, he is entitled to his opinion and to use his bully-pulpit to espouse his opinion. My objection rests upon his implication that morals can only be supported, defended and protected by the law. He is wrong in the worst possible way – the antithesis of freedom.

“Gay Marriage: Leave It to the Voters – I support it as a policy matter, but having the courts mandate it promises trauma of the sort that followed Roe v. Wade.”
by John Yoo
Wall Street Journal
Published: August 12, 2010
http://online.wsj.com/article/SB10001424052748704164904575421223725915454.html?mod=djemEditorialPage_h
What happens when a majority of voters are perfectly comfortable denying constitutional rights to a minority?

“A biased ruling on gay marriage in California – U.S. District Chief Judge Vaughn R. Walker should have recused himself, but he had a legal and political statement he wanted to make.”
by Tim Wildmon
Los Angeles Times
Published: August 13, 2010
http://www.latimes.com/news/opinion/commentary/la-oe-wildmon-gay-marriage-20100813,0,1854572.story
I suspect Wildmon has not read Judge Walker’s ruling.

At the end of the day in this gargantuan public debate, the solution is actually quite simple – respect your neighbor and other citizens, and their freedom of choice, as you would expect them to respect your choices. It is truly that simple! We must stop trying to impose our moral values on all citizens through the law. We have a responsibility to define acceptable public behavior and conduct; we do not have a right to decide how other citizens are to live their private lives. I yield my time.

News from the economic front:
-- The U.S. trade deficit grew to US$49.90B in June – a 21-month high. U.S. exports contracted 1.3% in June from a month earlier, while imports increased 3.1%. The trade gap with China expanded to US$26.15B in June -- the widest level since October 2008.
-- U.S. retail sales rose 0.4% in July, the first increase in three months, based largely on higher sales of automobiles and gasoline. The rest of the economy remains sluggish.
-- U.S. consumer prices rose a seasonally adjusted 0.3% in July. The underlying inflation rate barely ticked up. The core consumer prices, which remove volatile energy and food prices, rose by just 0.1%.
-- The euro-zone economy grew at the fastest pace in four years in the second quarter, driven by an unexpectedly strong surge in Germany. The combined EU GDP grew 1% from the first quarter, marking the strongest quarterly expansion since the second quarter of 2006. Germany's economy grew 2.2% between April and June, the fastest quarterly rate since reunification in 1990 and far stronger than economists' expectations.
-- The People’s Republic of China reported its 2010Q2 GDP at US$1.339T, surpassing Japan at US$1.288T, as the world's second-largest economy. China remains on track to top Japan in full-year GDP, an unprecedented position for a still-developing country.

The Blago Scandal [365]:
-- Jurors in the Blago corruption trial told the judge they’ve reached agreement on just 2 of the 24 counts. Jury deliberations resume Monday morning.

Comments and contributions from Update no.451:
Comment to the Blog:
“I find it amusing, if a bit frustrating, that you seem to think it possible to have an objective debate of the value versus risk of deep-water oil drilling. Tens of billions of dollars are at stake, both for the oil companies and for those who stand to lose in future accidents. No truly objective parties can be heard in such an environment.
“Most of these legal issues are far beyond my expertise. I will, however, state that (a) I see no further value in the Electoral College system now that a relatively accurate and verifiable tally of popular votes is possible, and (b) that can be changed by a Constitutional amendment. My assumption is that the changes in state laws are an effort to build momentum for that very difficult endeavor.”
My reply to the Blog:
It is my nature to seek solutions to problems. I enjoy the process in my professional life as well as my private life. The deepwater drilling issue may well be intractable as you suggest . . . due to the mega-money involved. I have not arrived at that state, just yet. To me, deepwater drilling is an engineering challenge. I am not ready to write off the technology or techniques involved until we have evidence that the process is beyond our engineering capability. This may have been a simple accident. This may have been a tragic series of human errors and bad judgments. We need all the facts on the table in the public view, and then we can judge the process.
You are not alone in your willingness to abandon the Electoral College, as you will note in other comments coming in from last week’s Update [451]. Elimination of the Electoral College would take a constitutional amendment, which by design is not an easy process. More likely, states will elect to negate the Electoral College as they have done in Maryland and soon Massachusetts. The Electoral College was created for many reasons, not least of which was to protect the sovereignty of each state. If a state chooses to abdicate its sovereignty, that is entirely the choice of the state legislature . . . and hopefully the will of the residents of that state. States are becoming less and less relevant entities – this is just one more step on that path.
. . . round two:
“My comment was not intended to condemn deepwater drilling wholesale. Indeed, preliminary indications are that the process probably would have worked had the procedures been followed as written. My point is simply that the processes of determining liability for the present disaster and changing or regulating the process for future operating will be conducted by human beings. Given the amounts of money involved, the odds of that process being as objective as a computer simulation or as relatively objective as one of my college classes are slim.
“At this point, the Electoral College discussion can be seen as States' rights versus popular vote. It's not really as simple as that, but those issues will probably dominate the discussion. I will watch this one with somewhat less passion than, for example, civil rights or environmental discussions.”
. . . my reply to round two:
My apologies for misinterpreting your words. You are, of course, quite correct; money corrupts, and the more money involved, the more difficult it will be to find objectivity and resistance to corruption. Thus, it is essential that government be involved, but even that is no guarantee, as we have seen with MMS.
I remain vigilant on many issues, which is why I noted the Massachusetts initiative.

Another contribution:
“I say marriage is marriage, thus available to any and all of adult age.
“We will be dealing with the long term effects of the oil spill for perhaps a generation or two.
“I reserve judgment on Elena Kagan's confirmation.
“Polzzi got screwed, whether or not he was found to have porn in his possession. Example We have laws about drugs which include "possession with intent to distribute" as opposed to simple possession. Penalties for the former are more severe.”
My response:
Unfortunately, we are a long way from equality in marriage as well as many other aspects of civil life.
Yes, likewise, I think we will be dealing with the consequences of the DH oil spill for generations.
Concur . . . it will take time to see what kind of justice Kagan becomes.
Polizzi got screwed big time. As I tried to point out, he is one more example of how we have violated one of the most fundamental precepts of the law – innocent until proven guilty beyond a reasonable doubt. For reasons I know not and thus certainly do not understand, sex laws entail far greater punishment, and in the case of sex laws involving children (<18yo), we appear to be quite content inflicting serious punishment on just the allegation of sex crimes involving children. Sex crimes involving children appear to be highly prone to the simple accusation, kind of like a young girl with light skin pigmentation making a false accusation of rape against a boy with dark skin pigmentation in the Jim Crow South. Rage without facts or justice – just an accusation.

A series of comments to the Blog:
“State-by-state winner-take-all laws to award electoral college votes were eventually enacted by 48 states AFTER the Founding Fathers wrote the Constitution.
“The Founding Fathers only said in the U.S. Constitution about presidential elections (only after debating among 60 ballots for choosing a method): ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .’ The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as ‘plenary’ and ‘exclusive.’
“Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.
“In 1789, in the nation's first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote.
“In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.
“There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.
“The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes.
“As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all rule is used by 48 of the 50 states. Maine and Nebraska currently award electoral votes by congressional district -- a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.
“The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.”
My reply to the Blog:
As you note, the Electoral process (i.e., Electoral College) was established by Article II, § 1 of the U.S. Constitution. As I implied but did not explicitly state, Maryland and Massachusetts are acting completely within their authority regarding how their respective electors are defined and instructed to act. My only point was, in doing so, those states abdicate their sovereignty to the national popular vote count by a simple majority of 1 vote. That is their right to choose. I simply believe such a scheme to be unwise and myopic.
Also as you note, when the Constitution was written and ratified, only male landed citizens could or were even expected to vote. This Grand Republic has continued its metamorphosis toward realization of the Founding principles – that ALL men (read every adult citizen) are created equal . . . and they are entitled to their specific and unique freedom of choice regarding their “Life, Liberty and pursuit of Happiness.” We still have a way to go on that journey of change, but the principles remain valid. Among the changes affected so far: we no longer consider “men” to be only males with light skin pigmentation, primarily of European descent, and owning real property; every adult citizen regardless of the social factors (age, gender, race, ethnicity, religion, political affiliation, sexual orientation, marital status or disability) is entitled to vote.
The common “winner-take-all” allocation of electors was decided by individual state legislatures for many reasons, not lease of which was to allow the choices of the state’s citizens to be given maximum leverage, i.e., the big state / little state conundrum. We see the deleterious effects of the phenomenon in contemporary presidential elections. Candidates rarely pay any attention to the small (low populous) states; they just don’t count. By abandoning the “winner-take-all” electoral process, states lose the last vestiges of their influence on national elections. I live and vote in a small state. I struggle to make my voice / vote heard. I am not willing to diminish that likelihood (or rather un-likelihood) farther.
. . . round two:
“The small states are the most disadvantaged group of states under the current system of electing the President. Political clout comes from being a closely divided battleground state, not the two-vote bonus.
“12 of the 13 smallest states (3-4 electoral votes) are almost invariably non-competitive, and ignored, in presidential elections. Six regularly vote Republican (Alaska, Idaho, Montana, Wyoming, North Dakota, and South Dakota), and six regularly vote Democratic (Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC) in presidential elections. So despite the fact that these 12 states together possess 40 electoral votes, because they are not closely divided battleground states, none of these 12 states get visits, advertising or polling or policy considerations by presidential candidates.
“These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has ‘only’ 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter.
“In the 13 smallest states, the National Popular Vote bill already has been approved by eight state legislative chambers, including one house in Delaware and Maine and both houses in Hawaii, Rhode Island, and Vermont. It has been enacted by Hawaii.”
. . . my reply to round two:
I have no argument whatsoever with your observations; I believe you have accurately represented the facts and reality. The Electoral process was intended to give the smaller states some modicum of voice in the cacophony of populous political rancor. The choice of what to do with that voice was always, from the get-go, left to the individual state legislatures to decide how best to represent their residents. For many years, most chose the “all-or-nothing” approach, which maximizes whatever influence the state may have on the presidential election process; the common approach essentially makes the state an entity unto itself, id est, a sovereign unit. A legislature could have taken the path of simple proportional allocation, dividing the state’s electoral votes accordingly. Of course, the legislature can also chose to abdicate the state’s identity allocating all its electoral votes either proportionally or totally per the national popular vote. As you note, 3 electoral votes is still only 3 votes among 535. Such is life. Perhaps you are arguing that such small fractions of votes should not even bother. Perhaps, since I am only one vote among 100 million, I should not even bother. Article II, §1 was created for many reasons; some of those reasons are still valid today. Article II, §1, Clause 1 still states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Thus, you may advocate your legislature to abdicate its responsibility; I shall advocate my legislature to retain the state’s identity in our current winner-takes-all appointment of Electors.
. . . round three:
“A ‘republican’ form of government means that the voters do not make laws themselves but, instead, delegate the job to periodically elected officials (Congressmen, Senators, and the President). The United States has a ‘republican’ form of government regardless of whether popular votes for presidential electors are tallied at the state-level (as has been the case in 48 states) or at district-level (as has been the case in Maine and Nebraska) or at 50-state-level (as under the National Popular Vote bill).”
. . . my reply to round three:
I believe you have accurately represented a “republican” form of governance. I do believe the Electoral College is likewise representative of republican government. I still do not see the reasons or logic for abandoning the Article II, § 1 process, but I am always willing to listen, and I do enjoy a vigorous debate. In fact, the electoral process is republican, while direct national popular vote is democratic. As a side note, I believe we bear witness to one of the weaknesses of democracy in California. Republican governance has its weaknesses too, but all in all, I continue to believe it is the best form of governance.
. . . round four:
“Federalism concerns the allocation of power between state governments and the national government. The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, along district lines (as has been the case in Maine and Nebraska), or national lines.”
. . . my reply to round four:
In your context, I agree. Legislative power is neither enhanced nor diminished by Article II, § 1. As you have previously argued, small states are small states regardless of a particular legislature’s decision regarding allocation of Electoral votes. My argument is, a small state’s votes and identity are maximized (to whatever extent that may be) with respect to the presidential election by the current (common) winner-takes-all allocation process. To me, the Article II, § 1 is the most republican of the options presented so far.

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

Update no.451

Update from the Heartland

No.451

2.8.10 – 8.8.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
We grabbed Aspen Shae and Shalee Lynn, jumped into the truck, and headed down I-35 to Austin for a long weekend with our newest grandchild Avalon Mar – 6 weeks old, born 9 weeks premature – along with her brother Judson James and Mom & Dad. We had a grand ol’ time. Thank you very much, Melissa and Tyson.

The follow-up news items:
-- A House investigative panel has formally charged Representative Maxine Waters of California [450] with violating ethics rules. Waters serves as a senior member of the House Financial Services Committee.
-- The government announced on Thursday that cement had been successfully pumped down the throat of the Deepwater Horizon well [442 et al]. BP confirmed on Sunday that the cement had properly hardened, effectively sealing the leak permanently. Now, the company intends to finish the relief well to pump more mud & cement into the bottom of the well to ensure the well never leaks again. The investigation into the root cause(s) of the tragic accident continues. Local government and residents seek to keep the focus on the clean up as well as the environmental and economic recovery of the region. The long-term environmental study of the consequences of the disaster will take generations. Hopefully now, we can discuss refinement of the entire deep-water drilling process without the Judiciary being necessary to the public debate.
-- A Federal district judge in California struck down the voter referendum Proposition 8 – the so-called marriage amendment to the state constitution – Perry v. Schwarzenegger [USDC CA(ND) no. C 09-2292 VRW (2010)] [421, 423]. The 138-page ruling was simply beyond my capacity this week. I expect to complete my review for next week’s update.
-- The Senate voted [Senate: 63-37-0-0(0)] to confirm President Obama’s nomination of Elena Kagan as Associate Justice for the U.S. Supreme Court to fill the seat vacated by retired justice John Paul Stevens. She took the oath of office on Saturday to become the 112th citizen and the 4th woman to occupy a seat on the bench of the nation’s highest court.

At this time every year, we are reminded of the mind-numbing devastation of the only two instances in human history (so far) when nuclear weapons were used in war. I could recount history and offer my usual counter-argument; however, this year, I shall ask just one question: where is the remembrance and condemnation of the vastly more destructive Imperial Japan as well as the even more mind-numbing potential for loss of life on both sides if Operations OLYMPIC and CORONET had been necessary to execute? As I so often say regarding his topic and I reiterate now, thank you very much, Harry Truman, for having the courage to do what had to be done.

The public debate over Arizona’s SB1070 law and the subsequent Federal suit against the law certainly brought the immigration situation to the forefront. In general, I do not often agree with Ann Hart Coulter’s vitriol. However, a recent essay of hers illustrates just a few of the difficulties we face in this debate.
“Justice Brennan's Footnote Gave Us Anchor Babies”
by Ann Coulter
humanevents.com
Published: 4.August.2010
http://www.humanevents.com/article.php?id=38409
All warm & fuzzy Ann wants us to believe her recitation of the law defines the capricious and fallacious interpretations of activist (read wrong) judges . . . well, she actually singles out one justice as the true culprit in the dilemma we face. She points to Footnote 10 of Associate Justice William Joseph Brennan, Jr.’s opinion for the Court in Plyler v. Doe [457 U.S. 202 (1982)], where he notes, “Justice Gray concluded that ‘[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.’ Id., at 693 {quoting from United States v. Wong Kim Ark [169 U.S. 649 (1898)] [399]}. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).” Coulter contends that Brennan’s footnote sanctioned the phenomenon known as “anchor babies.” The argument rises amid the growing debate over the 14th Amendment’s citizenship clause – namely Section 1, Clause 1: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Now we hear folks like Coulter arguing that the 14th Amendment was only intended for and limited to citizens with dark skin pigmentation who happened to be former slaves. The “anchor baby” phenomenon is a consequent artifact of the Federal government’s abysmal failure to enforce immigration law and border security. As with any law, we can cite examples of abuse, exception and extension. The Constitution including its amendments applies to all persons within its jurisdiction. Ann Coulter presents an interesting argument, but she is wrong.

From the Press reports on the Supreme Court’s recent decision, Christian Legal Society v. Martinez [560 U.S. ___ (2010); no. 08-1371], my interest peaked, and I developed a preliminary opinion, which illustrates why it is so important to read the entire decision, including opinion(s) of the dissent. My humble opinion changed in a rather unusual manner. The University of California Hastings College of the Law in San Francisco was founded in 1878, and through its “Registered Student Organization” (RSO) program, the college extends official recognition to student groups. Hastings claimed to have established a Nondiscrimination Policy in 1990 that applied an “accept-all-comers” requirement on RSOs as a condition to receive college sanction and support. The Christian Legal Society (CLS) sought RSO-sanction in 2004, which Hastings rejected since CLS refused to subscribe to the “accept-all-comers” requirement. CLS then claimed Hastings’ RSO open-access policy places unreasonable and undue restrictions on their First Amendment freedom of speech and assembly. It is far from clear whether Hastings created and applied its “accept-all-comers” membership policy as an answer to CLS or to all RSO groups. Sadly, the Court presents conflicting facts that strongly appear to be self-serving rather than expansive and substantive to the issue at hand. Both the plurality and dissent note that Jewish & Muslim RSOs were sanctioned by the university, but regrettably, neither faction of the Supremes informs us whether the “accept-all-comers” policy was applied to or accepted by the other religious affinity groups (or any student groups for that matter). If yes, the CLS has no case; if no, the university policy is clearly unconstitutional. Why the Court failed to make such a fundamental, basic reference is simply bizarre? The critical omission seems to stand in stark contrast to the Supremes earlier ruling in Boy Scouts of America v. Dale [530 U.S. 640 (2000); no. 99-699] [436] where the Court took a very broad view of the right of an organization to hold and enforce discriminatory membership criteria. Interestingly, the dissent illuminates a bona fide threat that an “accept-all-comers” policy enables – adversaries could flood membership and literally dismantle the targeted organization; the Court failed to reconcile such a threat with the obvious First Amendment restrictions of the CLS decision. At the end of the day, it was Associate Justice John Paul Stevens in his concurring opinion that most clearly and succinctly defined this decision. He observed, “Other groups may exclude or mistreat Jews, blacks, and women--or those who do not share their contempt for Jews, blacks, and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.” Although the Court did not extend dominance of the university’s Nondiscrimination Policy over a student affinity group’s First Amendment rights, the argument applies to many cultural differences (although not applied directly by the Court, as that would be too broad an endeavor): exempli gratia, the anatomical modesty dicta of some religions and sub-cultures cannot be imposed upon the whole; conversely, nudity cannot be forced upon the remainder of our society because some of us are avowed naturists; we seek reasonable compromise and balance in societal and cultural forces. The Court sought to find that balance; however, I believe they failed on several levels.

On 27.July.2006, President Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) [PL 109-248] ostensibly to “protect children from sexual attacks and other violent crimes.” In the shadow of the Supreme Court’s United States v. Comstock [560 U.S. ___ (2010); no. 08-1224] [441] decision, United States District Court Judge Jack Bertrand Weinstein of the Eastern District of New York took on the massive scattergun “punitive” injury inflicted by the Adam Walsh Act – United States v. Polouizzi [USDC NY(ED) 06-CR-22 (JBW) (2010)]. Pietro Polouizzi (AKA Peter Polouizzi or Peter Polizzi) was reported in court documents as a good husband and father of five sons, who had not harmed and posed no threat to his children, other minors or the community at large. Polouizzi was also convicted on twelve counts of receipt of child pornography, in violation of 18 U.S.C. §2252(a)(2), and eleven counts of possession of child pornography, in violation of 18 U.S.C. §2252(a)(4)(B). His conviction was set aside as a result of several judicial errors. As he awaited retrial, “conditions of his bail imposed the following requirements:
“(1) prohibition on association with minors, except in presence of guardian;
“(2) surrender of passport;
“(3) random drug testing;
“(4) mental health treatment;
“(5) home detention with electronic monitoring;
“(6) prohibition on use of family’s computer;
“(7) prohibition on entering son’s bedroom; and
“(8) a one million dollar bond secured by defendant’s home and other properties.”
All of these pre-trial restrictions were imposed upon a citizen who has not been successfully convicted of a crime and posed no threat to himself, his family, his community or society. Anyway, Judge Weinstein confined this ruling to just the mandatory electronic monitoring aspect of the law as a violation of Polouizzi’s Eighth Amendment right against excessive bail. The judge noted, “Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person not yet convicted as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans.” I would have expanded the judge’s constitutional argument, so I suppose that is one more reason I am not a judge. Fortunately for all of us, even those of us who have never needed bailment, Judge Weinstein had the courage to take on an emotionally charged, oppressive law. I am generally opposed to laws like the Adam Walsh Act that are well intentioned and noble of purpose, but are far too broad, indiscriminate and oppressive in application. In such laws, we appear to be perfectly willing to destroy the lives of hundreds of generally decent, productive citizens with our desire to preempt Ottis Toole, or John Couey, or John Wayne Gacy. There are bad people among us, and there are even worse people who seek to harm our children. Our desire and efforts to protect our children from harm does not give us the right to impose punitive restrictions on a citizen not convicted of an appropriate crime. Further, we must resist our penchant to codify our moral outrage against those whom we disapprove, without factual proof beyond a reasonable doubt. The difficult part for all of us can be represented by the notion that if the Adam Walsh Act had been in force in 1981, eight-year-old Adam John Walsh may well be alive today
and may not have suffered at the evil hands and demented mind of Ottis Toole; however, such judgment does not rationalize or justify violating the constitutional rights of all citizens.

News from the economic front:
-- The government reported the core price index for personal consumption expenditures, which exclude food and energy prices and is closely watched by the Federal Reserve, was unchanged from a monthly 0.1% rise in May. U.S. personal incomes were also flat from a modest 0.3% rise in May.
-- Fannie Mae reported its losses during the second quarter of this year decreased dramatically and it would need only another US$1.5B in government support as a result. Oh my, don’t we feel better already. Furthermore, after the expansive financial services reform legislation, Fannie Mae and Freddie Mac remain untouched by reform or tightening of the associated regulations, while they continue to feed at the public trough. What is wrong with this picture?
-- The Labor Department reported the national unemployment rate held steady at 9.5% as the U.S. economy shed 131,000 nonfarm payrolls in July. The private sector added 71,000 jobs, while 143,000 temporary workers for the 2010 census were let go.

Comments and contributions from Update no.450:
Comment to the Blog:
“‘Far too many people have begun playing 'where’s the oil?’ Please clarify. Don’t you want to know where that stuff went?
“I agree with you about the Stolen Valor Act. The First Amendment covers speech I find repellent; it does not and should never cover fraud. The person in question had a clear objective of gaining from his statements and clearly lied.
“With respect to Massachusetts, Maryland and the Electoral College: please clarify. I am unaware of either the current events or of supporting evidence for value of the Electoral College.
“Finally, the Arizona immigration-law debate. I feel that it would be a good gesture for Obama to visit Tucson and maybe the general border area, but not the border itself. The border would be a security nightmare.”
My reply to the Blog:
My attempt at sarcasm failed miserably. I was reacting to the plethora of Press reports about “where’s the oil?”, as if it had miraculously evaporated because they couldn’t see it on the surface. Being the “Light Sweet” variety, it is more volatile and evaporative. However, I worry that the majority of the released oil volume is suspended, sub-surface, and may have detrimental collateral effects beyond the obvious residue on beaches and marshes. So many of the Press reports seem to carry a tone of miraculous salvation rather than focus on the totality of the contamination.
I hope the appeals court takes a more reasonable line of reasoning than Judge Blackburn did in U.S. v. Strandlof.
The Maryland and now Massachusetts action was a state law that dictates all of the state’s electoral votes shall go to the winner of the “national” popular vote, thus negating the state’s autonomy and sovereignty. Thus, taken to an illustrative extreme, candidate A might win an overwhelming vote in the states, say 90%; however, since candidate B won the national popular vote, all of the state’s Electoral College votes would go to candidate B, rather than candidate A who won the vote in the state. This is a foolish, populist effort to negate the Electoral College without amending the Constitution.
The best the President could do with a visit to the Arizona border region would be a sympathy demonstration – sometimes that is important, other times distracting. As I have contended, the issue is Congress, not the President.

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

Update no.450

Update from the Heartland

No.450

26.7.10 – 1.8.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- The twists & turns of the Deepwater Horizon disaster [442 et al] have finally taken a positive or at least more optimistic turn. The well has been temporarily capped for a couple of weeks now. BP is making final preparations for another attempt at a permanent plug for the well. If successful, the focus will shift entirely to the clean-up effort. Far too many people have begun playing “where’s the oil?” I would like to think the condition is real, but I seriously suspect the leaked oil will remain a problem for a generation. The Federal investigators euphemistically called the “BP Squad” continue to collect information regarding the disaster. The BP Board has decided to replace Tony Hayward as CEO of the embattled company, with the company’s Managing Director Robert W. Dudley, an American, who will become BP’s first non-British chief executive.
-- As I am certain everyone on the planet has heard, a Federal judge in Arizona issued a preliminary injunction against portions of the state’s SB1070 immigration enforcement law [436, 447] – United States v. Arizona [USDC AZ case 2:10-cv-01413-SRB (2010)]. Among many things I learned in reading this decision, I learned the title of Arizona Senate Bill 1070 – Support Our Law Enforcement and Safe Neighborhoods Act. The case raised numerous constitutional issues that do not have a large body of law to help resolve. U.S. District Judge Susan Ritchie Bolton concluded, “The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws.” Judge Bolton gave us a brief trip down memory lane regarding U.S. immigration law from the Immigration and Nationality Act of 1952 (INA) [AKA McCarran-Walter Act] [PL 82-414; 8 U.S.C. § 1101; 66 Stat. 166] . . . well, at least from a federalist perspective. The judge tried to fain empathy for Arizona’s plight as it grapples with the burdens of grossly inadequate enforcement of Federal immigration law, but that is little comfort to the state. She offered little recognition or even acknowledgment of the serious community issues that precipitated SB1070. Of course, as a Federal district judge who might harbor ambitions for higher posting, Susan took the safe approach to a volatile social dilemma. She stood upon the Supremacy Clause – Article VI, Clause 2. – as all of us anticipated. Judge Bolton specifically avoided the question of serious under-enforcement and even non-enforcement of Federal immigration laws. I am still searching for legal precedent. The closest I have reached so far is the opposite condition – the Federales attempting to force a county sheriff to enforce Federal law – Printz v. United States [521 U.S. 898 (1997); 95-1478]. Writing for the Printz Court, Justice Scalia concluded, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” The inverse argument seems to apply here, in that the judge argues the state is attempting to force the Federal government to enforce its own laws. Susan Bolton took the safe line. I do not fault her. This case is far from over.
-- Representative Charlie Rangel of New York will stand public trial on 13 counts of violating House rules [449], after the veteran congressman failed to reach a settlement to avoid the rare and potentially embarrassing proceeding. Just in this week alone, we had a number of off-again, on-again public announcements. I suspect negotiations will continue in private as Charlie seeks survival and the charges suggest resignation. We also learned that Representative Maxine Moore Waters née Carr of California joins her colleague and also faces ethics charges. I expect Republican gloating as the mid-term elections approach. I will gladly remind them of their peccadilloes in the ethics arena.
-- Massachusetts appears to be headed down the same path as Maryland [279] in abandoning the presidential Electoral College process that has functioned successfully for 222 years, as they are expected to give up another sliver of state sovereignty at the alter of the national popular vote. If I was a resident of Massachusetts, I would not be happy.

The widely publicized WikiLeaks publication of 92,000 classified documents from the Afghanistan Theater of Operations a week ago sparked a flood of opinions from indignant condemnation to confirmation of all-is-lost. The Government has their primary person of interest – Private First Class Bradley E. Manning, 22, an Army intelligence analyst – in custody, interestingly and reportedly being held in the Brig at Quantico, Virginia. I have not read through the list of disclosed documents, and I am not likely to do so. Of the dispatches selected by various Press sources, the disclosures do far more for our enemies than they inform freedom-loving people. My opinion of such disclosures during wartime has not changed. We await the Government’s decision to prosecute all of those involved in the release of classified documents. In a previous war a generation ago, we endured another betrayal of the national trust. The Daniel Ellsberg – Pentagon Papers case made it to the Supreme Court – New York Times Co. v. United States [403 U.S. 713 (1971)], a case I clearly need to put on my reading list.

A couple of weeks ago, United States District Court Judge Robert E. Blackburn of Colorado granted a defendant’s motion to dismiss and declared the Federal Stolen Valor Act of 2005 (SVA) [PL 109-437; 18 U.S.C. § 704(a)] an unconstitutional violation of the 1st Amendment – United States v. Strandlof [USDC CO 1:09-cr-00497-REB (2010)]. The Federales charged Rick Glen Strandlof, AKA Rick Duncan, with publicly claiming to have been awarded a Silver Star and Purple Heart from combat operations in the War on Islamic Fascism. Judge Blackburn cited two principal Supreme Court cases to substantiate his decision: 1.) Texas v. Johnson [491 U.S. 397 (1989)] [420] – the flag desecration, freedom of expression case; and, 2.) United States v. Stevens [559 U.S. ___ (2010)] [437] – the “crush video” pornography, freedom of expression case. I think the judge stretched the support law too far in this instance. I expect the government will appeal the ruling to the 10th Circuit Court of Appeals. I can understand and appreciate the decisions in Johnson and Stevens. I do NOT share Judge Blackburn’s interpretation of the law. Strandlof fraudulently portrayed his status, which has tangible and intangible benefit to him personally and individually. Military decorations and especially medals of combat valor are not speech or matters of choice. Military decorations are recognition on behalf of a grateful nation for service to this Grand Republic. There are limits to freedom of speech. Fraudulently presenting ones self as the recipient of military decorations goes way beyond the boundaries of tolerance. Judge Blackburn was flat wrong!

A year ago, I reviewed the Supreme Court’s FCC v. Fox Television [556 U.S. ___ (2009)] [385] decision, the broadcast television 1st Amendment freedom of speech case, which remanded the constitutional challenge back to the appeals court for the constitutional question. The 2nd Circuit Court of Appeals completed their task – Fox Television Stations, Inc. v. Federal Communications Commission [2CCA docket nos. 06-1760-ag, 06-2750-ag, 06-5358-ag (2010)]. The full citation reflects the first of a long list of participants otherwise known as “The Networks” – Fox Television Stations, Inc., CBS Broadcasting Inc., WLS Television, Inc., KTRK Television, Inc., KMBC Hearst-Argyle Television, Inc., ABC Inc., as Petitioners. The list expands farther when we include the Intervenors – NBC Universal, Inc., NBC Telemundo License Co., NBC Television Affiliates, FBC Television Affiliates Association, CBS Television Network Affiliates, Center for the Creative Community, Inc., Doing Business as Center for Creative Voices in Media, Inc., ABC Television Affiliates Association. The three-judge, 2nd Circuit panel was unanimous in their decision. The court noted, “[T]here is ample evidence in the record that the FCC's indecency policy has chilled protected speech,” and they offered several quite appropriate examples. They concluded, “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.” The appeals court struck down the FCC oppressive policy as unconstitutional. The government may well re-appeal to the Supremes, but I suspect the High Court will let it stand there . . . and rightly so I must add. This point has been a long time coming – long overdue – and I trust will allow us to move toward a more enlightened state.

News from the economic front:
-- President of the Federal Reserve Bank of St. Louis James B. Bullard warned that the Fed's current policies were putting the American economy at risk of becoming “enmeshed in a Japanese-style deflationary outcome within the next several years.” The warning comes amid efforts by the Federal Reserve to stimulate the economy. Bullard had been seen as a centrist and associated with the faction that sees inflation as a greater threat, which hints at the struggle the central bank has in reading the economic signs.
-- A name we should watch – Wyly, namely Samuel and Charles Wyly, -- Texas billionaire brothers. The Securities and Exchange Commission has accused the Wylys of violating federal securities laws by using offshore accounts to secretly trade the shares of public companies whose boards they sat on, making more than US$550M through fraudulent trading practices.
-- The Government reported the U.S. Gross Domestic Product (GDP) rose at an annualized seasonally adjusted rate of 2.4% in the 2nd Quarter, slowing from 3.7% in the 1st Quarter (originally estimated at 2.7%). The Government indicated the economy was supported by business investments and exports, while consumer spending made a smaller contribution to growth. The government suggested the recession was deeper than earlier believed, and the recovery will take longer than originally forecast.

L’Affaire Madoff [365]:
-- Court appointed, Madoff-asset, liquidation trustee Irving H. Picard is preparing an estimated 2,000 new lawsuits against net positive Madoff investors in an attempt to recover funds for distribution to the net losers. The tragic aftermath of the gargantuan Ponzi scheme continues to play out.

Comments and contributions from Update no.449:
Comment from the Blog:
“The Deepwater Horizon case just gets stranger as time goes on. If that alarm system was in the wrong mode, I would look to the rig operator, rather than BP, for that liability. That's important financially, particularly in the lawsuits over the worker deaths. I hope the oil companies carry out the strike force idea and that it can be maintained in a reliable state. Similar measures in other oil-producing areas would also be a good idea.
“I do not usually comment on the intelligence community. Their antics are a nightmare from my viewpoint due to the general habits of lying and distorting information. The public never gets reliable information on any part of this.
“My feeling about non-heterosexual marriage is that in time it will become ordinary. The more conservative religious factions will scream about it for quite some time, though. A question further down the road is plural marriage. While allowing those might re-unite the LDS Church (is that a good or a bad thing?) and recognize some other people's realities, the divorces could be insanely complicated.
“Finally, I also see Caterpillar as a good economic bellwether, for the obvious reason that their sales show the state of long-term investment in construction. Their rising profits and estimates are a good sign.”
My reply to the Blog:
Re: DH tragedy. Indeed . . . curious’er and curious’er, as they say. I have not seen a definitive hierarchy of command, but Deepwater Horizon was an ocean vessel, which implies a singularity of command, i.e., a captain. It is my understanding that although Trans Ocean owned and operated the rig, BP was the captain by contract. You may well be correct, but at this stage, I suspect it was a BP manager (captain) who made the decision on disabling the alarm system. The details will eventually be made public for all of us to assess.
Frankly, I do not think anything the Intelligence Community (IC) does should be debated or discussed in the public domain. I want their operations appropriately and highly classified. The oversight of the Executive’s intelligence operations belongs to Congress and in rare instances to the Judiciary in camera or closed session. By its very definition, intelligence operations and products should be the object of historians after the information is no longer action-able or relevant and has been declassified. The IC must not be transparent and must not exist in the public domain if it is to have any value to the Executive for diplomacy or warfighting. There is a very real reason the British call MI6 the Secret Intelligence Service.
Yes, polygamy – maternal or paternal – adds complication to family law. Yet, we managed to sort out the operations as well as dissolutions of complex corporate structures, so I am certain we can sort out complex marital relationships. Bilateral marriages are complex and hard enough to nurture, maintain and defend, and to dissolve. I am not and will not encourage plural marriage. Yet, I will argue that such decisions regarding marriage which is primarily a private relationship is a matter for the participants to decide. There are proper, reasonable, rational, state concerns regarding the “general welfare,” e.g., free choice, health, full disclosure, et cetera. There is also the issue of parental accountability that exists beyond any relationship definition.
. . . round two:
“The Deepwater Horizon mess gets more fascinating. A story at a British web site http://www.theinquirer.net/inquirer/news/1724792/microsoft-deep-water-oil-spill
states that the rig had been plagued with computer issues for weeks. This particular story gives no indication whether efforts had been made to remedy the problems. I doubt whether MicroSoft (if they are in fact the software provider) has any legal liability in any case. If the rig operator made no contact with the software vendor to correct the issue, that's one problem; if the problems continued for weeks, that's another. All in all, still another complexity.
“I have no resolution to the conflict of having an intelligence establishment, but I can at least state the issue. An effective intelligence apparatus must operate in secrecy, but that same secrecy invariably leads to abuse of power and/or corruption.
“Polygamous or polyamorous (plural) marriage seems to me to lie down the road beyond non-traditional marriage. I would not care to participate in such a marriage, but that is immaterial. It would have a beneficial side-effect if it brought about a simplification of divorce laws.”
. . . my reply to round two:
I have no idea whether the Inquirer story is true. Common practice in the digital age dictates all critical system have parallel systems. In the case of digital flight control systems, quadruple parallel systems are common. I think we will eventually know what happened to Deepwater Horizon.
I share your concern regarding secrecy and abuse of power, which is precisely why there must be appropriate, independent oversight – checks & balances. Absolute power corrupts absolutely.
A polygamous relationship is not on my list of desirable relationships. However, I prefer not to deny that option to others just because I disapprove. I believe strongly that the burden the Warren Jeffs clan place on the public domain should be illegal and punishable; they abused the system intended to help needy people, not support over-population.
. . . round three:
“I have the feeling from the story that parallel systems were not in place on the Deepwater Horizon. That's not knowledge, but it is a question worth asking by the appropriate investigators.
“Polygamy is far from my own outlook; other forms of plural marriage are not for me. Nonetheless, I also would not deny them to those for whom they work. The fact that some people abuse any social institution is not news. The only real question is whether the abuse of a given institution reaches the level of prompting society to change the institution. The question of whether plural marriage is being abused is a moot point at present, to be determined if and when plural marriage becomes legal.”
. . . my reply to round three:
You may well be correct. We do know from earlier Press reports that one of the dual controllers on the Blow Out Preventer (BOP) was inoperative [as I recall, it had failed a month or so prior to the accident] and the “captain” decided to forego repair and continue drilling – another red flag. If the DH rig did not have multiple parallel control / monitoring paths for the critical systems, then it was a bad design; I suspect they did have parallel systems. Whether they were all operational is yet to be determined.
Plural marriage is illegal in this country, but that does not mean that groups like FLDS are not circumventing the law. What relationships adult citizens choose to enter is their business as long as they do not cause injury or become a burden upon the public domain; once either threshold is breached, We, the People, have every right to demand specific standards and conditions.
Ironically, as we discuss this aspect of Life, the Utah Supreme Court overturned the Jeffs conviction on a very thin legal technicality. Frankly, I hope Utah passes on the retrial and honors the extradition request from Texas, where Jeffs faces direct rape charges rather than an accomplice to rape as he did in Utah. I hope Texas is ready, so he is not let out of jail.

Another contribution:
“You have no idea how ****ed off I am right now with Obama and his cronies. Thanks to a judge who probably got her law degree from Cracker Jack box, SB 1070, which was supposed to enforce the immigration laws the worthless Federal Government refused to, has been gutted. This poor excuse for a magistrate basically said it is OK for someone who is not from this country to not carry ID. She said it is OK for someone who is here illegally to stand around and solicit for work. I'm sick of this! That idiot Barak Obama, his moronic AG Eric Holder, and this fool of a judge have made it clear. They care more about the rights of lawbreakers than they do about folks like me who are legal residents who play by the rules. I've had it with this socialist (expletive) crapping all over me, all over my state, and all over legal residents of the United States! They have also sent a message that it is okay for certain people to break the law, like people who aren't supposed to be here in the first place. What does this say to the people from all over the world who come to the U.S., follow the rules, study hard and wait years for the privilege of becoming American citizens so they can contribute to the betterment of this country? What does it say to my grandparents and great-grandparents who crossed the Atlantic from Germany and Hungary to come to the USA to make a better life for our family? Obama, Holder, Napolitano, Judge Bolton and all their sycophants have just spat on them! On me! Well I spit right back at them! I absolutely loathe this Administration and the Federal Government. They are more hostile toward my state than they are North Korea or Iran. We are just trying to enforce the law! Period! I'm sick of their disrespect. I'm sick of their hostility. I’m sick of all their stupid accusations of racism. I’m sick of how this law and my state are being misrepresented. What part of illegal don’t these morons understand!?!
“How about this? If non-citizens aren't required to carry ID at all times, then maybe we should go around without our driver's licenses? Why should we natural born citizens of the US have carry ID when non-citizens, legal or otherwise, don't have to? I seriously hope, from here on out, if the Federal Government needs anything done in Arizona, our state government does all it can to not cooperate with them (barring serious crime matters and national security issues). But anything else, "Oh. We need you help doing this project because the scope encompasses some state land as well as federal land," then the state of Arizona's response should be, "Okay. I'll put that at the bottom of our to do list and we'll be in touch with you whenever we feel like it. Bye." I also wouldn't mind seeing citizens be rude and discourteous to employees of certain federal agencies (i.e. DOJ, Homeland Insecurity, Federal Courts). Nothing violent or intimidating. Just act rudely. If they wish to act with hostility or disrespect toward Arizona, then I do not see why we should act with civility toward them.
“At least Jan Brewer isn't rolling over for Obama and the other lovers of lawbreakers. I pray we win the next court battle and can enforce the law and protect the people of this state, and hopefully other states. We just want the damn law enforced! We just want that pillock Obama to do his damn job and enforce the border. Quit with your damn speeches, quit with yakking it up with the women on The View, quit with your damn date nights with Michelle, and do your damn job! Protect us from all enemies foreign and domestic!
“Keeping up the fight in a state under siege . . .”
My response:
I can appreciate your opinion. You are usually rather demonstrative in your writing, especially regarding the current administration, and this instance is no exception.
I am trying to read through Judge Bolton’s reasoning for the temporary injunction, so I must reserve my opinion until that task is done. I suspect the judge did not say it was OK to be in this country illegally. Further, I imagine she read the Constitution, which clearly delineates immigration responsibility and concomitantly the Supremacy Clause, as reinforced by the Supremes, tilts to the Federales in this debate. I am eager to read her ruling. More to follow. FWIW, IMHO, Arizona cannot win this legal battle; the Constitution simply too specific and clear; at best, the Court could “force” Congress to act – not sure how that is done, but theoretically possible.
I respectfully suggest the focus of your ire should be Congress – not the administration. Congress has repeatedly demonstrated their impotence to shed the mantle of political parochialism and face immigration reform directly, head-on, and with vigor, over at least all of the last half dozen administrations – Republican & Democrat. This abysmal situation is not the Executive’s yoke; it belongs squarely and completely with Congress; they make the laws, they allocate the funds, they under-resource the Border Patrol; they hamstring the Executive. So, let us concentrate our anger where it belongs.
I’ve written numerous times regarding my experience of living & working in other countries – Japan, England and Italy. My “papers” in Japan were my uniform and military ID. In both England and Italy, I had to carry my legal resident alien status along with work permit papers all the time, and I was obligated by law to present them to any government official who asked to see them for whatever reason he chose to ask. So, I hold no sympathy for these false and thin arguments about papers being discriminatory; it is the only intelligent thing to do. Again, it is Congress that has failed to enact an alien identification process. It is Congress that blocks inter-connectivity between various agencies that could illuminate illegal aliens.
I have considerable empathy for the plight of Arizona and the other border states. Despite its potential for illegal abuse, I did and still do support SB1070; I truly believe Arizona was left no choice by spineless impotency of Congress. I think this kerfuffle over SB1070 is distracting. Local law enforcement takes action to enforce Federal laws; immigration laws are no different.
. . . a follow-up comment:
“I have no problem aiming my ire at Congress over this issue, along with many others. You're absolutely right. They have failed too in their inaction on illegal immigration. But the Administration must share that blame as they have shown nothing but hostility toward Arizona. Our officials have invited the President to come to our state numerous times to tour the border and see the problem for himself. He has refused every time. He has no problem going to other states to raise money for candidates for political office, but he can't spare one day to come to Arizona and see the problem for himself. This is not only a law enforcement issue, but a national security issue. Obama's main job as President is to protect the citizens of this country. He has neglected that duty. So both our inept Congress and this Administration of incompetents both deserve our disdain.”
. . . my follow-up response:
We each see and judge events by our eyes, our experiences and our beliefs. That is the beauty and magnificence of freedom.
I imagine the President does not see any way to further the public debate and find a solution by a visit to the state – other than offer moral support. I also imagine he cannot see how a visit will finally convince Congress to provide the necessary resources for enforcement and amend the law to deal with so many ancillary aspects of the immigration issue. We’re not buds . . . so I’ve no idea.
This will all get sorted out in time.

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