27 September 2010

Update no.458

Update from the Heartland
No.458
20.9.10 – 26.9.10
To all,
The follow-up news items:
-- The Senate failed to invoke cloture on debate regarding bill S.3454 – National Defense Authorization Act for Fiscal Year 2011 [Senate: 56-43-0-1(0) {60 yes votes required}]. The sticking points at issue are: Title V: Military Personnel Policy; Subtitle J: Other Matters – § 591 provides for repeal of the current DOD policy concerning homosexuality in the Armed Forces [AKA Don’t Ask, Don’t Tell] [312, 408]; and attachment of Development, Relief and Education for Alien Minors Act (“DREAM Act”). We shall await the next step.
-- We have another perspective regarding the viability of the United States Marine Corps [452].
“Send away the Marines?”
by Frank Gaffney, Jr.
Center for Security Policy
Published: Sep 13, 2010
http://www.centerforsecuritypolicy.org/p18524.xml
-- The Florida state Third District Court of Appeal review of the homosexual adoption case – In the Matter of the Adoption of: John Doe and James Doe [case no.: [Redacted] (2008)] [363] – affirmed Judge Lederman’s finding that the law was unconstitutional. The appeal case – Florida Department of Children and Families vs. In re: Matter of Adoption of X.X.G. and N.R.G. [FL 3CA no. 3D08-3044 (2010)] – will probably be appealed further to the state supreme court.

On my judicial reading list, I seek contemporary pronouncements that illuminate shifting boundaries of our freedom and rights, and occasionally I reach back into history to read a pivotal case often cited by the Supremes. One of this week’s cases involves the First Amendment freedom of speech – United States v. Playboy [529 U.S. 803 (2000); no. 98-1682]. The case focused upon §505 of the Telecommunications Act of 1996 [PL 104-104; 110 Stat. 136; 47 U.S.C. §561; S.652; Senate: 91-5-0-3(1); House: 414-16-0-4(11)], actually Title V: Obscenity and Violence; Subtitle A: Obscene, Harassing, and Wrongful Utilization of Telecommunication Facilities (AKA Communications Decency Act of 1996), which required in part: cable providers of “sexually explicit adult programming . . . shall fully scramble or otherwise fully block the video and audio portion of such channel.” The phenomenon of “signal bleed” instigated the preemptive challenge by Playboy. “Signal bleed” was an artifact of the pre-digital days, when the digital signal scramblers were not 100% effective on old analog television devices. The reason I find this case so important rests not in the outcome but rather how close the Supremes came to serious infringement of the First Amendment’s guarantee of freedom of speech. Writing for the majority, Associate Justice Kennedy observed, “It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.” He added, “Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech. The Government's argument stems from the idea that parents do not know their children are viewing the material on a scale or frequency to cause concern, or if so, that parents do not want to take affirmative steps to block it and their decisions are to be superseded.” This is the very heart of the conflict we face to this day as social conservatives seek to suppress “objectionable material” for everyone, all in the name of protecting children or their sensibilities. Kennedy went directly to the point, the material at issue was “not alleged to be obscene; adults have a constitutional right to view it; the Government disclaims any interest in preventing children from seeing or hearing it with the consent of their parents; and Playboy has concomitant rights under the First Amendment to transmit it.” Yet, the importance of the Playboy case to our freedom and rights was expressed in just one sentence offered by Associate Justice Clarence Thomas in his concurring opinion – “The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.” In this case, Thomas was the deciding 5th majority vote, and his opinion hung on just one ambiguous, subjective interpretation – indecent versus obscene. While the Court affirmed Playboy’s right to distribute sexually explicit programming to cable providers, I am astounded how close this case came to restricting what and when citizens can watch what they wish to watch. Freedom is both precious and extraordinarily fragile; we must remain constantly and diligently vigilant.

The Playboy case above led my curious mind to an earlier critical case – Roth v. United States [354 U.S. 476 (1957)] – a key Supreme Court 1st Amendment obscenity ruling. In turn, Roth led me into a review of the history of relevant laws. Obscenity laws . . . morality laws, so what; who cares? Most of us could care less I suppose, since most of us do not buy, sell, trade, view or otherwise possess obscene materials of any kind, and perhaps we are even disgusted that such materials even exist. So, why should we care what the government does in restricting and banishing that filth from the stories, the streets and those depraved homes? Well, in my humble opinion, we should care because this is precisely how they chisel away at our freedom and rights. So, we proceed. I have often pegged the beginning of the moral projectionist laws in the United States at the Comstock Act of 1873 [PL 43-258] [285, 292]; it turns out that reference is predominately true but not strictly so. The first Federal law against obscene or indecent material was actually the Tariff Act of 1842 (AKA “Black Tariff”) [PL 27-270], which prohibited the importation of “indecent and obscene” material. Yet, as with many of our laws, the genesis of obscenity laws can be traced back to Mother England. According to the history books, there were spotty obscenity prosecutions on behalf of the Crown until the publication of the erotic novel Memoirs of a Woman of Pleasure (AKA Fanny Hill) by John Cleland (21.November.1748), which sparked the public debate regarding decency and obscenity in printed materials. In 1787, King George III issued the Royal Proclamation “For the Encouragement of Piety and Virtue, and for the Preventing and Punishing of Vice, Profaneness and Immorality,” condemning indecent or obscene materials. The first formal law passed to control what people hear, see and read was the Obscene Publications Act 1857 [20 & 21 Vict. c.83; AKA Lord Campbell's Act or Campbell's Act], i.e., the government knows best what is good for citizens. The law was not tested until Regina v. Hicklin [L.R. 3 Q.B. 360 (1868)], which in turn yielded the Hicklin test:
“The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
The Hicklin test was utilized in both Great Britain and the United States until the Roth ruling. Associate Justice William Joseph Brennan, Jr. wrote for the Court and the 5-4 majority affirmed the lower courts’ rulings on the convictions under 18 U.S.C. §1461. The salient words from Brennan’s opinion that replaced the Hicklin test . . . to be judged obscene the material in question must have a “tendency to deprave or corrupt its readers” and tend “to stir sexual impulses and lead to sexually impure thoughts.” Associate Justice William Orville Douglas expressed the true essence of travesty of all obscenity laws in his dissenting opinion. “The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the First Amendment.” He also observed, “Under [the Court’s Roth] test, juries can censor, suppress, and punish what they don't like, provided the matter relates to ‘sexual impurity’ or has a tendency ‘to excite lustful thoughts.’” Thus, the government placed itself as the regulator of thought – only it knows best what is good for each individual citizen. Douglas concluded, “[L]iterature should not be suppressed merely because it offends the moral code of the censor.” Over the years, the Court has backed away from supporting morality laws, but we have such a long way to go to undo centuries of moral projectionist law-making. The journey continues.

News from the economic front:
-- The National Bureau of Economic Research determined that the U.S. recession started in December 2007 and ended in June 2009, based on national economic statistical data. Data are the data. With the economy still staggering, any new recession will not be a continuation of the recession that began in December 2007. Isn’t that a comfort?
-- On Tuesday, the Federal Reserve left benchmark interest rates unchanged and indicated they would withhold additional steps to prod the plodding economic recovery for the time being. The Fed also announced the pace of economic growth is slowing, and there is little to no evidence that inflation would pose a problem in the near future.
-- Déjà vu . . . is it 1939 . . . again? A “fishing vessel” ventured into Japanese waters. The boat and crew were detained. The People’s Republic of China slapped a trade embargo on all exports to Japan of crucial rare earth elements used in products like hybrid cars, wind turbines and guided missiles.
-- Blockbuster filed voluntary Chapter 11 petitions with the U.S. Bankruptcy Court for the Southern District of New York, as the company struggles amid major shifts in how consumers view movies and other media. A sign of the time . . . ay!

No comments or contributions from Update no.457.

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

20 September 2010

Update no.457

Update from the Heartland
No.457
13.9.10 – 19.9.10
To all,
The follow-up news items:
-- The day finally arrived. On Sunday, 19.September.2010, the USG’s on-scene commander Admiral Thad William Allen, USCG (Ret.) announced the Macondo Well [442, 456] “is effectively dead,” after BP completed and tested the “bottom kill” cement plug – the well is permanently sealed. Now, the focus must be on the clean-up, environmental recovery, and of course the investigation along with corrective actions, if the facts warrant. This may not be politically correct, but I would like to congratulate BP for an extraordinary operation in plugging the well.

One more thought on the Craigslist fiasco [456], just because it continues to make me really angry. What happened to that website should make every true American mad as hell . . . but it won’t. To me, this unfortunate episode is one of the truly disgusting flaws in our society – a modern, contemporary version of the Scarlet “A.” For reasons that absolutely baffle me, we seem to have such an overwhelming penchant for the façade, feel-good, make-it-look-good image rather than the substance of any particular issue. We are offended by a drunk wobbling down the street, so let’s prohibit alcohol. We are disgusted by cigarette smoke, so let’s ban all smoke-producing, tobacco products. We are outraged that anyone might actually enjoys sex, so we outlaw sex toys and adult content stores. We are revolted by needless deaths in automobiles accidents, so we pass laws making not wearing your seat belt a violation of law. We don’t like fat people, so we pass more laws making it illegal to serve calorie-ladened foods or to use certain cooking oils. So many issues, we feel compelled to dictate how everyone else is to live their lives – to control their lives – since we know better what is good for them. If all these do-good’ers find so much comfort in bludgeoning Craigslist into censoring their advertising content ostensibly to help child sex workers, they should have used Craigslist to truly help those children . . . but, NO! Let’s force it off the web. Let’s banish it from public view, because it makes us feel better. Does anyone really think that by publicly humiliating Craigslist operators to remove their “adult” section they are helping children pressed into the sex trade even a twit? My gosh, I hope we are not that naïve, but alas, I know we are. We are all too content to obliterate something from public view and pretend that it actually fixes the problem, i.e., if we can’t see it, it must not exist. I am mad as hell at such nonsense. I have been accused of being a dreamer . . . for actually thinking we might mature as a society, but then comes an event like this that slaps me in the face . . . probably not in my lifetime. So, I write these words of condemnation because they make me feel better, in hopes that it helps just one other person think things through. We have found it convenient to use the instruments of State to make ourselves feel better without ever helping those who truly need our help. How bloody shallow and ego-centric is that! I am truly afraid for the future of my grandchildren and their grandchildren that we may have passed the point of no return in our acceptance of government deciding how we are to live our lives. Was freedom really that cheap and valueless that we give it away so easily . . . to make ourselves feel better about our beliefs, our moral values, our pursuit of Happiness? What on God’s little green Earth are we doing!

As noted in last week’s Update [456], United States District Court Judge Virginia A. Phillips in the Central District of California declared the Federal “Don't Ask, Don't Tell” law [PL 103-160] [312, 408] an unconstitutional violation of the 1st and 5th Amendments and issued a permanent injunction against enforcement of the law. Log Cabin Republicans v. United States [USDC CACD case no. cv-04-08425-VAP (2010)] Log Cabin Republicans formed in 1977 within the Republican Party to advocate for equitable treatment of homosexuals. They brought the case on behalf of its members, some of whom were or are members of the armed forces of this Grand Republic. The stories of those individuals cited in the court’s decision document are shameful in many ways; the violations of the privacy, dignity and respect due any and every citizen and especially those serving honorably on active duty in the military add a tragic dimension to this issue. The difference in this case from so many others is the invocation of the 1st Amendment. So many of these service members were discharged for words – just words – not poor performance and not for any observed physical action whatsoever. Judge Phillips’ decision will undoubtedly be appealed. I would expect the 9th Circuit to affirm. I eagerly anticipate the logic and reasoning of the Roberts’ Court. Unfortunately, we will probably have to wait for a year or two to arrive. Nonetheless, in closing, I have a sincere, legitimate and genuine question: why are folks so fearful of homosexuality? I understand people being inherently afraid of what they do not know or understand, but wouldn’t education and debate be a far more rational approach rather than blind faith to tradition?

On 13.February.2008, U.S. District Court Judge James Ware in the Northern District of California dismissed ACLU v. Jeppesen Dataplan, Inc. [289, 307, 323] – a constitutional challenge of the CIA’s extraordinary rendition and interrogation programs. The ACLU initiated the case on behalf of five (5), rendered, foreign nationals – an Ethiopian, Binyam Mohamed, 28; an Egyptian; an Italian of Moroccan origin, 40; an Iraqi, 39; and a 38-year-old Yemeni. The full bench of the 9th Circuit Court of Appeals affirmed the judgment of Judge Ware – Mohamed v. Jeppesen Dataplan, Inc. [9CCA no. 08-15693 (2010)]. In their motion to dismiss, the government claimed state secrets privilege, which in turn was a judicial creation established by Totten v. United States [92 U.S. 105 (1875)] [215, 306]. Just to be clear, the plaintiffs are foreign nationals apprehended outside the United States as part of the War on Islamic Fascism, and they are claiming protection under the Constitution of the United States of America. Apparently, plaintiffs saw an independent, services support company as far more vulnerable than the government with regard to their claims of the USG violated their constitutional rights. Jeppesen offers various levels of flight planning services from providing navigation charts to full flight plans with all the associated international clearances, landing permits & fees, detailed airport information, and such. Jeppesen neither acknowledged nor denied producing flight planning and other logistical support products to the CIA for the extraordinary rendition and interrogation programs, or any other alleged intelligence operation. Judge Raymond C. Fisher wrote for the court and concluded, “[W]e hold that the government’s valid assertion of the state secrets privilege warrants dismissal of the litigation, and affirm the judgment of the district court.” The dissent did not object to the government’s invocation of the states secrets doctrine rather the timing of the court’s judgment. Judge Michael Daly Hawkins, writing for the dissent, observed, “[The plaintiffs] are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties.” He concluded, “I would remand to the district court to determine whether Plaintiffs can establish the prima facie elements of their claims or whether Jeppesen could defend against those claims without resort to state secrets evidence.” To be frank, having read the entire ruling, I remained neutral; I could accept either argument; and for the record, I objected to the case at the outset [289]. Yet, footnote 5 to Judge Hawkins’ dissent ultimately turned me to the dissenting opinion. He noted from a sworn declaration that Bob Overby, Director of Jeppesen International Trip Planning Services, stated to other employees, “We do all the extraordinary rendition flights.” He also referred to those flights as “the torture flights” or “spook flights.” We do not know the contractual relationship between Jeppesen and the CIA. We do not know if Overby’s comments were just ill-advised, ill-informed, idle, water-cooler chat or juvenile bravado supposition, or a direct violation of a classified national intelligence program. What is it about secret that so many folks do not understand? At the end of the day, I suspect the Supremes will hear an appeal and will side with the 9th Circuit’s dissent, and will reverse and remand for the district court to review and render judgment regarding the plaintiffs’ case without classified material.

The Press assessment of the Supreme Court’s ruling for Skilling v. United States [560 U.S. ___ (2010); no.08-1394] peaked my interest for a case I did not hold much interest in reading . . . just did not want to waste my time with yet another greedy corporate crook. Jeffrey Keith “Jeff” Skilling is the disgraced former CEO of now defunct Enron. A jury of our peers found Skilling guilty of conspiracy, 12 counts of securities fraud, 5 counts of making false representations to auditors, and 1 count of insider trading; it acquitted on 9 insider trading counts. The Supremes decided two points of Skilling’s appeal. The majority affirmed the rulings of the district and appeals courts that pre-trial Press coverage did not prejudice the jury pool in Houston, that a change of venue was not warranted, and Skilling received a fair trial. However, the Court overturned Skilling’s conspiracy conviction for violation of the “honest services” statute -- actually, 18 USC §1346. The statute at issue was 28 words:
“For the purposes of this chapter, the term, scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.”
The law was created by: Title VII: Death Penalty and Other Criminal and Law Enforcement Matters; Subtitle O: Miscellaneous, of the huge Anti-Drug Abuse Act of 1988 [PL 100-690]. Associate Justice Ruth Joan Bader Ginsburg wrote for the majority and constrained the §1346 “honest services” law to “only the bribe-and-kickback” portion of the broadly accepted wider interpretation utilized by prosecutors to convict corporate criminals like Skilling. She concluded, “It is therefore clear that, as we read §1346, Skilling did not commit honest-services fraud.” While it would be easy to add this case to the growing list of pro-corporate rulings like Citizens United [424] and Hemi Group [425], it appears this decision is more a statement by the Supremes seeking to reign in overzealous prosecutors. Regardless, Skilling was the quasi-beneficiary of the Court’s retrenchment; yet, he is still Inmate no. 29296-179 at the Englewood Federal Correctional Institution in Littleton, Colorado, four years into his 28+ year prison sentence. The conspiracy conviction was remanded to the district court for re-trial. Jeffie’s request for bail was denied. We have yet to hear whether the State will retry him on the conspiracy charge; I suspect not in the shadow of this ruling and the standing sentence.

News from the economic front:
-- The Wall Street Journal’s monthly survey of economists showed continuing erosion in their growth forecasts for the remainder of 2010 and into 2011, and three in five economists expect the U.S. Federal Reserve to resume large-scale purchases of securities in the face of a deteriorating economic outlook—but, by a 3-to-2 margin, most of them also think that would be a mistake.
-- The Commerce Department reported U.S. retail sales rose 0.4% in August – the second consecutive month – driven by purchases of clothing, gasoline and groceries, while sales of autos and parts slipped 0.7%. Excluding automobile associated sales, all other retail sales rose 0.6%.
-- The Labor Department reported the seasonally-adjusted Consumer Price Index (CPI) for August rose by 0.3% from July. Meanwhile, core consumer prices, which exclude energy and food, were unchanged, which means inflation pressure remains low.

Comments and contributions from Update no.456:
Comment from the Blog:
“The reason for hammering over and over on 9-11 is simple, but does not involve academic considerations. The marketing of 9-11 keeps the American public angry and afraid and avoids any issues other than the horror of that day. Examining the failures of intelligence agencies, the apparent inability to capture one fugitive in nine years or anything else might endanger nice salaries and nicer profits for those who keep this going.
“Cheap labor is not comparable to a military invasion. Indeed, it is the American way. How do you think the railroads were built? the textile industry? American agriculture? Immigration was unregulated when those occurred, but otherwise the situation was very similar. Foreigners came here to take jobs Americans did not want. Farmers, restaurateurs, construction companies and those who hire domestic workers will continue to hire at illegally low wages for work that sometimes is under horrendous condition, and those jobs will be filled. The only immigrants who take desirable American jobs are in the information technology industry, and they come mainly from India and Russia, not Latin American. And somehow, I doubt that people who cannot produce ID can register to vote.
“Cap, I think you are stuck in your engineer box on the Macondo Well issue. None of the technical considerations outweighs the fact that BP and others are facing tens of billions of dollars in liability at the very least. Why would you tie the hands of the Justice Department in favor of letting BP produce a self-serving statement?”
My reply to the Blog:
The “marketing of 9-11” . . . interesting concept . . . with some merit I should think. However, such a notion does seem rather cynical, if you don’t mind me saying so.
So, using the rationale you offered, we should forget the notion of border protection and immigration control . . . correct? IMHO, only the truly xenophobic and racists among us would argue no immigrants. Since I know you are not xenophobic or racist, we are debating where the balance point lays between fully open and completely closed borders, as well as the associate immigration control. I thought I stated my position . . . perhaps too succinctly. I agree with you that this Grand Republic was built upon immigration, assimilation and growth. We need immigrants who want to become Americans, who enter this country by a legal vetting process. We also need manual labors who are generally under or uneducated; thus, we need a guest-worker or migrant worker program, whereby a person’s legal status from citizen to transient, migrant, farm worker can be openly checked and readily established, without reprisal or recrimination. Like so many of our societal ills, we don’t like certain behaviors, e.g., drug use, prostitution, gambling, temporary workers, et cetera, so we make them illegal, force them underground, and create an entire criminal subculture that feeds off those illegal behaviors. I would prefer we recognize and in fact honor those who seek to come to this country for harvest season, make a fair wage, and return home to their families when the harvest is done. I advocate for a guest worker program. That said, I still believe my analogy is valid . . . illegal penetration of our national borders and society is wrong whether the person carries a shovel, a rifle or a package of heroin.
You are entitled to think of me as you will. Regardless, I try (not entirely successfully I must add) to confine my reactions and opinions to facts. I read the BP Macondo Well report with interest, a fair amount of critical and skeptical observation, and where possible, sought collateral comparative information. Quite a few talking heads have condemned the BP report as self-serving since they identified companies responsible for certain sub-systems. I did not read the report that way. To be frank, I think BP went to extraordinary lengths to explain the equipment, operation and failures. This is not to say that the BP report was the exhaustive, definitive and conclusive examination we all seek; I’m afraid we shall not have such a report for many years, until the litigation is done (very sad, to my engineering brain). Nonetheless, it was an excellent preliminary report. As I noted, the BP investigation team acknowledged that certain critical elements of information were denied them (because of the government’s criminal investigation [I deduced]). Yes, BP is facing billions of dollars in liability, and to my knowledge, they have made no attempt to pass that liability to anyone else, including their partners; I should think they deserve credit for standing up to the mark. We do not find very many companies that volunteer their deficiencies. While I may well be buried in my little engineering box and unable to see the malfeasance of corporate greed, I stand before my critical brethren to say BP has risen above the early public perception in the aftermath. I believe BP is a company that is trying to do the right things in the wake of a tragic accident.
. . . follow-up comment:
“‘The “marketing of 9-11’ . . . interesting concept . . . with some merit I should think. However, such a notion does seem rather cynical, if you don’t mind me saying so." Certainly my idea will be unwelcome to idealists. All the same, cynics are proven right by historians much more often than idealists.
“I did not advocate for totally open borders, but I would certainly like to decrease the ethnically-based hysteria pervading the current discussion. I have Irish ancestors. Any study of 1850s America will tell you that they faced similar attitudes. Totally open borders are inadvisable due to the fact that criminals would generally like to move their operations to another country when their home nation seeks to jail them. A guest worker program is one of the more rational proposals, but it's a reasonable assumption that some of our "guests" would outstay their official welcome.
“Interesting sidelight: you stated, ‘. . .we don’t like certain behaviors, e.g., drug use, prostitution, gambling, temporary workers, et cetera, so we make them illegal . . .’ Temporary workers? I did that through most of the 1990s; it's legal here.
My point about the BP report is that the details of the equipment are not especially relevant; the actions of the people on that drilling platform and the official or unofficial policies upon which they were based will be the central issues. We can believe that the equipment specifications were reasonable, but then we must follow through the purchasing process, installation, and, most importantly, whether the equipment was used in a reasonable and safe manner. Those, in the end, are human behavior issues rather than engineering issues.
“I do not understand your statement that ‘. . . BP is a company that is trying to do the right things . . .’ They have a history of doing the greedy things, not the ‘right’ things. My statement comes not from cynicism but from readily available sources. The easiest way to study BP is to go to wikipedia.com and enter ‘BP’ in the search box. The sections called ‘Environmental Record,’ ‘Safety Record,’ and ‘Political Record’ are particularly illuminating. Wikipedia is not a recognized academic source, but many of the references at the end of the article work in that context.”
. . . my follow-up reply:
We shall see how history treats 9/11.
There have been many wrongs, abuses and violations in the past, but we do not live in the past. I freely acknowledge that previous generations of Americans did really bad things to immigrants – Irish, Chinese, Italians, Poles, Africans, ad infinitum. I will also acknowledge there are mindless xenophobes among us today, who garner a disproportionate voice due to the penchant of the Press for sensationalism. OK, then, we agree we need some level of border protection AND immigration control. If so, then how much? To my thinking, border protection means no one crosses the border without a proper visa; and if they do manage to get through, they can readily be discovered, captured and deported. Which means proper ID required everywhere. Counterfeits can be easily identified, and everyone is part of the reporting process. It also means we have an easy, controllable, interlinked visa process, so that consulates can rapidly issue work permits to fill demand.
I did not mean “temporary workers” in the normal employment context. I meant they are temporary “migrant or transient, foreign” workers, who possess a valid, legal, work permit.
Re: BP DH disaster: I interpret your words to mean that you have already established the cause as human error – neglect, complacency or criminal malfeasance. If we assume any accident involving a human being is by definition human error, then I suppose you are correct. I do not share that opinion, however. For example, if data being provided to the operator does not clearly define the situation, those data can be misinterpreted (in good faith), and subsequent actions may ultimately prove to be erroneous not because the operator did the wrong thing, but because the data did not properly establish the condition. As the BP report notes, human mistakes were made, but the report also clearly establishes that deepwater drilling is not precision operation. The comparison can be made to flying in the 1960’s versus flying with today’s technology; contemporary pilots have far more situational awareness than their predecessors, yet they still make mistakes. We will learn from this accident.
I am not judging BP by its prior history. My opinion is based upon what I have learned about deepwater drilling, what has been reported in the Press, and the BP report. Eventually, we will have an independent government report, presumably. For a corporation under the threat of massive liability, the public release of that report took no small amount of grit. Yes, the company was/is driven by the profit motive, as it should be. Yes, the decision-makers on that rig that day made mistakes. Yes, they made the wrong choices at time-critical moments in the sequence of events that led to the explosion and fire. Based on what we know so far, I am not ready to indict those folks. For the record, I respectfully disagree; sometimes the design is the problem. In the Macondo Well event, the design is certainly implicated, i.e., the information the system was giving them was not definitive, which led to the hesitation and erroneous decision(s).
After reading the BP report, I cannot discount the “get ‘er done” culture. Would another company have made the same mistakes given the conflicting information available at decision time that night? I suspect so, but I don’t have sufficient facts to emphatically make that judgment. Pilots still make mistakes, just as oil rig operators make mistakes. The task of the industry now is to figure out how to eliminate the confusion at time-critical moments in the well development.

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

13 September 2010

Update no.456

Update from the Heartland
No.456
6.9.10 – 12.9.10
To all,
The follow-up news items:
-- The legal wrangling regarding Federal funding of embryonic stem cell research took another positive step forward this week when the United States Court of Appeals for the District of Columbia circuit issued a short, direct, immediate administrative stay of Judge Lambeth’s injunction [454]. Sherley v. Sebelius [DC CCA no. 10-5287 (2010)] While the ruling is positive, the continuing uncertainty cannot be helpful. I look forward to reading the appeals court’s assessment of Shirley v. Sebelius [USDC DC civ. no. 1:09-cv-1575 (RCL) (2010)] [454].
-- United States District Court Judge Virginia A. Phillips of the California Central District declared the military’s “Don't Ask, Don't Tell” policy [PL 103-160] [312, 408] unconstitutional. I did not have the capacity to read the judge’s ruling this week; hopefully, I’ll get ‘er done next week. I am eager to see how this judge sees this controversial issue.

I understand and can also appreciate folks being disgusted by the adult section of the Craigslist website. However, the public embarrassment approach to censorship and oppression should anger us all. What happened to Craigslist is NOT the way censorship should be carried out in a free society? When are we going to grow up?

Border protection is not and cannot be successful as a wall, sensor arrays, and masses of enforcement personnel. The Maginot Line comes to mind. We must have defense in depth, which means we must overcome corporations seeking sources of low-cost labor by enacting a comprehensive, legal, transient or guest workers visa program.
Would our opinion of the illegal immigration issue be different if instead of workers, the Mexican Army crossed the border, reclaimed New Mexico, established its law and authority over the inhabitants of the region? Would the Federal government feel any greater responsibility to defend New Mexico? What is the difference between an invasion of soldiers and an invasion of workers? The outcome is the same, is it not?
I can argue that powerful corporations have sought and achieved paralysis and inaction of the Federal government, so that they could enhance their profits on the back of cheap labor that has no course of appeal (i.e., illegal). I could also argue that political forces seek inaction to expand the roles of voters (also illegal) inclined to support their party. Such arguments are simplistic and demeaning to the complexity of the out-of-control illegal immigration issue; however, they do serve to illuminate a course of action to overcome the paralysis in Washington, DC.

Since I seem to be on a roll in this edition, I am getting a bit irritated that so many intelligent, perceptive people say things like, “It has now been nine years since al-Qaeda attacked the United States” – in these days prior to our annual remembrance. Irritated, why, you may ask? If any of us were U.S. Marines in a hotel in Aden, Yemen, on 29.December.1992, we might not feel the same. I make no claim to being an expert on the genesis and evolution of al-Qaeda or the employment of terror tactics by Islamic fundamentalists or radicals; however, I can reach back at least to that date in 1992 when al-Qaeda claimed responsibility for targeting citizens of the United States of America. Further, we have documented a near constant stream of attacks on U.S. interests by al-Qaeda and/or its affiliates virtually every year from 1992 to 2001 (including attacks on the Homeland; I can list them, if anyone is interested). So, why is it we continue to pretend that al-Qaeda mysteriously appeared and attacked our homeland in 2001? How much warning did we need? As an entity, al-Qaeda formed circa 1988, and there were alarm bells ringing before then. Let us not pretend the War on Islamic Fascism began in 2001; such nonsense is quite akin to thinking World War II started in December 1941 – pretty myopic, if you ask me.

On Wednesday, 8.September.2010, BP issued its report on the internal investigation of the Deepwater Horizon (DH) accident [20.4.2010; 442]. My natural (some might say unnatural) curiosity compelled me to read all of the 193-page report plus 27 appendices of supporting data. As an engineer, I was fascinated to look inside the drilling technology of deepwater oil exploration. I learned that the proper title was the Macondo Well; Deepwater Horizon was the free-floating, drilling rig built, owned and operated by Transocean – a Swiss world-wide oil exploration company – that BP leased to work the Macondo Well. I also learned about a lot of elements involved in deep sea drilling like Blow Out Preventer (BOP), Variable Bore Ram [VBR], Blind Shear Ram (BSR), nitrified foam cement slurry, Subsea Electronic Module (SEM), and the Emergency Disconnect Sequence (EDS). The BP investigation team identified eight (8) key factors leading to the outcome:
“1. The annulus cement barrier did not isolate the hydrocarbons.
“2. The shoe track barriers did not isolate the hydrocarbons.
“3. The negative-pressure test was accepted although well integrity had not been established.
“4. Influx was not recognized until hydrocarbons were in the riser.
“5. Well control response actions failed to regain control of the well.
“6. Diversion to the mud gas separator resulted in gas venting onto the rig.
“7. The fire and gas system did not prevent hydrocarbon ignition.
“8. The BOP emergency mode did not seal the well.”
The analysis is extensive, and the conclusions substantiated; however, while the BP report offers us considerably more insight into the technical causes of the accident, it is at best a preliminary assessment. The 50-foot-tall, 300-ton BOP was raised to the surface on 4.September.2010, and was impounded immediately by the FBI. The physical examination of the BOP was not part of the BP investigation. While the subject report explains many things about the well equipment, the drilling process and the technical causal factors, it does not provide us the whole picture. I think it important to note that the BP investigation was hobbled by the Justice Department’s criminal investigation process (although the company made no mention of the other investigations), which for engineering events like the Deepwater Horizon explosion and fire becomes a tacit assumption of violations of law. Certainly, the loss of 11 citizens and 17 others injured warrants an extraordinary investigation; however, jumping to the criminal level without evidence seriously alters the equation. I can understand the urge to worst case such investigations by assuming malfeasance or felonious action, thus criminal prosecution procedures dominating. However, experience with aviation events suggests such approaches do NOT advance engineering and operational safety. In that sense, this event is no different from an airliner crash or any other systemic accident. For those of us who have been reading or creating aviation accident reports, the BP Macondo Well report shares many general similarities and one central fundamental commonality – there was no single root cause, but rather a sequence of events that caused the accident – a chain of events – changing any one link of which might have altered the outcome. Design deficiencies, operator error apparently due to poor or inadequate information, inadequate for complex procedures, and poor continuous training all contributed to this accident. Yet, the one impression I am left with remains the crew failed to perform time-critical functions as the well went unstable. In the small-unit reconnaissance business, we called them immediate action drills; rigorous, recurrent training to ensure each man reacts precisely to threats. For pilots, we called them emergency procedures; airline pilots practice and their performance is evaluated every six months on time-critical emergency procedures. All that said, I suspect there will be prosecutions, mainly for failure to properly maintain critical safety systems.

I note the ruling this week of the United States Court of Appeals dismissing the CIA rendition and torture case – Mohamed v. Jeppesen Dataplan, Inc. [9CCA 08-15693 (2010)] [289, 307]. I will review the ruling in the next week or two.

As if taken from a playbook from yesteryear, U.S. Marines early Thursday boarded and seized control of the MV Magellan Star – a German-owned, commercial vessel – that had been commandeered by pirates in the Gulf of Aden, 85 miles southeast of Mukallah, Yemen. Nine bad guys were captured without firing a shot. Marines from the 2nd Platoon, Force Reconnaissance Company, attached to the 15th Marine Expeditionary Unit led the boarding party. Great job lads! Now the lawyers get to play their games.

Here is another Supreme Court decision I read out of odd curiosity, since I did not see in the summaries that it applied outside the State of Florida – a property rights case. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection [560 U.S. ____ (2010); no. 08-1151]. The constitutional issue at hand is the Takings Clause of the 5th Amendment, as applied to the states through the 14th Amendment, which states, “. . . nor shall private property be taken for public use, without just compensation.” Here we have a classic example of the requirement for balance in a free society. Let us assume we are property owners on a grassy bluff at the beach. The law says I own the land down to the rolling 19-year mean high-water line. The law also says the State owns the transient littoral land from my property line (the mean high-water line) to the low-tide line as well as the submerged land beyond the low-tide line. So, according to the law, the State could dredge sand from seaward and build a large berm beyond the low-tide line. Undoubtedly, such action would fundamentally alter the natural view of that section of beach and the value of my property; however, since the action did not directly affect my property, the State is not obligated to compensate my loss of value. After all, literally, the State is not “taking” my property, although by their action, they are altering my property benefit and value. While I think the Court made the correct judgment, this is one of those decisions that is precariously near the line of instability. The government should tread lightly.

News from the economic front:
-- The U.S. deficit in international trade of goods and services decreased in July by 14% to US$42.78B from the revised US$49.76B the previous month – the biggest drop in 17 months. Exports expanded 1.8%, the highest level since August 2008; while imports fell 2.1%.
-- First-time unemployment claims decreased by 27,000 to 451,000 in the week ending 4.September. Continuing claims decreased in the week ending 28.August by 2,000 to 4,478,000.
-- The Wall Street Journal reported that international bank regulators reached an agreement Sunday on new rules for the world's largest banks in an effort to create a more stable financial system. The deal would create new capital standards for banks and require banks to hold more capital against a wider range of their loans and investments.

Comments and contributions from Update no.455:
“SB 1070 would not be necessary if the Federal Government would have done its (expletive) job in the first place. Instead, they just step up their hostile actions against my state. So Maricopa Community College discriminated against 250 people by asking them their immigration status? Excuse me, but last time I filled out a job application, I had to provide all kinds of proof and information to show my employer I was who I said I was. And if that wasn't enough, now they go after Sheriff Joe Arpaio. I'm glad he's not cooperating with the federal government. Until they decide to take this issue seriously, we here in Arizona should cooperate with the Feds as little as possible. If they wish to treat us like an enemy nation, why should we be nice to them? Besides, they have proven that they care more about lawbreakers than they do the citizens they are constitutionally obligated to protect.”
My comment:
Your observations are quite understandable.

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

06 September 2010

Update no.455

Update from the Heartland
No.455
30.8.10 – 5.9.10
To all,
The follow-up news items:
-- OK; this whole tiff between the Federales and Arizona is rapidly going unstable and out of control as a consequence of the state’s SB1070 immigration enforcement law [436, 447]. Apparently, the Federales are quite content re-arranging the deck chairs on the Titanic. I believe in the Constitution and the Supremacy Clause, but this kerfuffle is rapidly morphing into a constitutional crisis comparable to the Missouri Enabling Act of March 6, 1820 (AKA Missouri Compromise) [PL 16-022; ch. 22, §8, 3 Stat. 548] [448]; Dred Scott v. Sandford [60 U.S. (19 How.) 393 (1856)] [322]; and the election of Abraham Lincoln as the 16th President of the United States of America. The Feds have filed suit against Maricopa Community College for discriminating against 250 non-citizen job applicants by asking for proof of immigration status. They also filed another suit against Maricopa County Sheriff Joseph M. “Joe” Arpaio for not cooperating fully with a Federal discrimination investigation into the conduct of the Sheriff’s Office. This is what happens when a political system becomes un-balanced and unstable. I hope someone shows some chutzpah, soon, to address the central issue and return us to balance and stability, but I fear we have not reached the bottom of this pit yet.
-- The government moved quickly to appeal Judge Lambeth’s injunction in Sherley v. Sebelius [454] – the embryonic stem cell research case – and sought an immediate stay. I hope they move this issue through the courts quickly.
-- After the injunction by Hornbeck v. Salazar [445] of the government’s moratorium on deepwater oil exploration, we have an interesting twist. The New York Times reported that BP [442] is warning Congress that if lawmakers pass legislation that bars the company from getting new offshore drilling permits, it may not have the money to pay for all the damages caused by its oil spill in the Gulf of Mexico. Retrenchment and withdrawal are NOT the answer to the risks of deepwater oil exploration or even the negligence of one company.

President Obama’s Tuesday evening address to the nation from the Oval Office announced the end of Operation IRAQI FREEDOM and the end of combat operations in Iraq . . . well maybe. Although the President did not mention it, Operation NEW DAWN began as IRAQI FREEDOM ended. Some talking heads criticized the President for not giving his predecessor credit for the success of “The Surge.” What those particular commentators failed to recognize or acknowledge . . . “The Surge” would not have been required if the Battle for Iraq had been fought properly in the first place. Dubs & his bud Rummie tried to fight a major campaign on the cheap without sufficient resources to secure the ground or administer the country. Yes, “The Surge” finally did give the Iraqis some breathing room and enabled Barack to withdraw combat forces from Iraq. Whether the timing of the withdrawal works to preserve freedom in Iraq will be judged by history.

With all the talk of withdrawal and combat operations ending, the New York Times reported an ominous episode in Afghanistan. The World Health Organization [and hopefully Allied intelligence and law enforcement] is investigating 10 mass sickening events. The investigators confirmed by blood tests the presence of toxic but not fatal levels of organophosphates. By itself, the facts could reflect an unfortunate accident; after all, organophosphates are commonly used in the formulation of insecticides and herbicides. However, other facts suggest a nefarious and far more threatening root cause. Organophosphates are a primary ingredient in chemical weapons like nerve agents GB, VX, and Tabun and Sarin gases. The events occurred at schools for girls in Afghanistan . . . and we know how the Taliban and al-Qaeda feel about females. While this event was not widely reported, this is one we should all pay attention to for other signs, as it may expand or portend a dangerous escalation of terror tactics by our enemies.

I received this suggestion from a long-term contributor:
“Please think seriously about this and circulate your ideas concerning how our country might limit borrowing to only when truly necessary and only from ourselves instead of from our potential enemies. Send your ideas to your congressional delegation, news editors, etc.
“The proposed 28th amendment to the U.S. Constitution should be enthusiastically supported by all Americans regardless of party affiliation, independent standing, or tea party sympathy. It basically provides that Congress shall make no law not fully applicable to its members and shall make any law applying to members also apply to all citizens. I'd like to see any Senator or Representative publicly oppose it.
“I am proposing a 29th amendment that should be equally acceptable to all (except a few who are not alarmed about the real cost of huge national debt) and might stand a better chance of passage than one designed to require a balanced federal budget:
“After the adoption of this amendment, no branch of the federal government shall borrow any funds for any purpose from any person or entity other than from a U. S. Citizen or a U. S. Corporation or other entity that is more than ninety percent owned and controlled by U. S. Citizens, except with the specific advance approval of ninety percent of the membership both houses of Congress.
“I know governments may have to borrow in emergencies, but our federal government has habitually sustained its operation and growth by borrowing, largely from other countries including some real or potential enemies, while forgiving debt owed us by other countries. An amendment forcing all except true emergency borrowing to be from U. S. citizens or institutions, through bonds similar to Savings Bonds or War Bonds, would naturally control our bad habit by making new debt subject to citizen support and faith in the government and its announced purposes.
“In my opinion, as a flaming Conserberal, this would lead toward a balanced budget, such as is required by the Mississippi constitution. Let's require that our future government debt, if any, be in favor of, not against, our children and grandchildren.”
My comment:
As much as I am an advocate for both congressional submission to the law and balancing the Federal budget, I cannot support either the proposed 28th or 29th amendments to the Constitution. We tried to impose moral dicta with the 18th Amendment; didn’t work then, won’t work now. Regardless of our political beliefs, values and affiliations, the Tea Party movement is the correct method to make changes in Washington – VOTE! The reason Congress is routinely exempted is separation of powers, i.e., the Legislature cannot be subjected to Executive prosecution, as that would inject politics into such actions. While the proposed 29th Amendment would constrain the government today, such a restriction could adversely affect our ability to conduct future wars successfully or respond to some massive emergency.

On Thursday, a shallow-water, oil and gas, transfer rig experienced a serious fire, causing the 13-man crew to abandon the rig. The fire appears to have been confined to the platform itself, and did not result in a leak. The accident will not help resolve the public apprehension regarding offshore oil exploration and production.

I would love to hope and comment on the renewal of talks between Palestinians and Israelis in Washington this week, but my hopes have been dashed too many times. I note that the talks happened but nothing else.

The notorious website Craigslist apparently succumbed to public and legal pressure over erotic (AKA adult) postings on their site by displaying a black bar with white lettering – “CENSORED.” This is not a great day for freedom. This faux-Band-Aid result does not help those oppressed and caught in prostitution or even children who are the object of human trafficking or sexual subjugation. This result may make us feel better, but it does not resolve the problem. I continue to contend and espouse legalization and regulation of the sexual services business. The best thing we can do it get that business into public view. We cannot impose our moral values on other citizens and still live in a free society.

Normally, most of the Judiciary’s decisions and pronouncements do not attract my attention, interest or capacity. I read cases that affect our freedoms whether we recognize it or not. Then, a decision percolates out that strikes me as odd, and curiosity takes over. Eight months after the collapse of energy company Enron (2001), Congress passed and the President signed into law the Sarbanes-Oxley Act of 2002 [AKA SOX] [PL 107-204; 116 Stat. 745; H.R.3763; Senate: 99-0-0-1(0); House: 423-3-0-8(1)] to improve accounting rules, ostensibly to prevent the corporate subterfuge that enabled Enron to destroy so much wealth. One element of SOX created the Public Company Accounting Oversight Board (PCAOB) as an independent professional standards organization under the Securities and Exchange Commission (SEC). A few years hence, the Nevada accounting firm Beckstead and Watts, LLP, registered with the PCAOB. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. The Beckstead partners apparently did not like the outcome and sought the support of the Free Enterprise Fund (FEF) – a non-profit, 501(c)(4) organization focusing on limited government and tax relief – which in turn filed a claim that PCAOB and SOX were unconstitutional. The case made it to the Supremes – Free Enterprise Fund v. Public Company Accounting Oversight Board [560 U.S. ___ (2010); no. 08-861]. The accounting issues that instigated this case were not discussed; my limited capacity did not allow me to dig through the lower court documents, which presumably contain such information as background or foundational material. The constitutional issue before the Supremes was separation of powers, specifically the imposition of multiple layers of “just cause” versus “at will” employment / tenure for certain Executive officers. Congress can and does impose certain restrictions on the Executive. Normally, Executive officers serve at the pleasure of the President; they can be discharged for reason whatsoever, quite like employees in the corporate world (at least in management); they serve “at the will” of the President. Congress occasionally imposes a “just cause” provision in an effort to remove the political dimension from critical Executive position like the commissioners of the SEC and the members of the PCAOB. The Supremes decided Congress overstepped its authority by placing several layers of “just cause” tenure restrictions on the Executive with this law, unconstitutionally imposing upon the President’s ability to supervise the government. Oddly, the United States Government did not support the FEF claim and indicated the President had no objection to the multiple “just cause” layers, thus the Executive did not agree with the Court’s position. On another plane, by this ruling in the wake of Citizens United [424], the Court has apparently decided to bestow citizenship upon inanimate corporations and harbors a desire to make the Executive more like corporations. Why not make the Federal Executive more like corporations? Answer: just two words – partisan politics; what goes around comes around. Based on the players and the essence of the decision, this case looks like a set-up intended to give the FEF a platform to stand before the Supremes, to argue their agenda, and they won; and I will say We, the People lost . . . again.

News from the economic front:
-- The Bank of Japan decided to take new steps to rein in the soaring yen and pump up the slumping Japanese economy, by expanding a special low-interest lending facility.
-- The Labor Department reported the U.S. economy lost a total of 54,000 jobs in August, which pushed the unemployment rate up slightly to 9.6%. The private sector added jobs, but the number was not enough to compensate for the reduction of government employees, principally temporary census workers.
-- The Washington Post reported that the Obama administration is considering another big dose of stimulus in the form of tax breaks for businesses -- potentially worth hundreds of billions of dollars. Among the options are a temporary payroll tax holiday and a permanent extension of the research and development tax credit. Let us not forget, this is the silly season for this Fall’s mid-term elections.

Comments and contributions from Update no.454:
Comment to the Blog:
“The ‘War Against Islamic Fascism’ is bound to generate notable anti-Islamic sentiment. The simple fact that the terms ‘Muslim’ or ‘Islamic’ are coupled with ‘terrorist’ over and over by official US sources pretty much guarantees trouble for people perceived as ‘Muslim’ or ‘Islamic,’ including some Middle Easterners who are not Islamic. That is aggravated by the fact that few, if any, attempts are under way to pursue non-Islamic terrorists. That is part of war (or whatever we call this). A brief study of the treatment of Americans of Japanese and German ancestry during the World Wars will show you that nothing new is under way here. It’s the nature of the business of war.
“The stem cell researchers are caught up in the abortion debate. I expect irrational statements in that one, and I have not been disappointed.
“Charles Krauthammer does not deserve your attention.
“With respect to overseas adoptions, you could study domestic adoptions to better understand the motivations of those who seek children overseas.
“My take on the Stolen Valor Act is not that of a Constitutional scholar. It's simpler than that. Fraud is fraud. Is not elective office a valuable item? The fact that one achieves elective office by deceiving the people who choose the office holder ought to settle the case. If I lied about my education or experience to get a job at your company, I would be instantly dismissed upon exposure. Military experience is certainly experience pertaining to political office. Why is a political position less important than some other job? The only fly in the ointment that I can see is that politicians of all ideologies might be very nervous about laws concerning lying during political campaigns.”
My reply to the Blog:
The word association game will always present challenges. “Other” terrorists, like the IRA, FARC, ETA, Tamil Tigers, and such were generally not direct threats to the United States or our Allies (although I suspect the British, Columbians, Spaniards, Sri Lankans, et all, might have a different view; nonetheless, the “other” category was largely local. Until 9/11, even the United States saw the Islamic variants like the PLO, Hamas, Hezbollah, the Islamic Brotherhood, et cetera, as essentially local. We whined about the barbarity of the Taliban, but we did little to intervene; heck, groups like the Taliban and Islamic Brotherhood sought oppression of other Muslims, much like the Iranian Revolutionary Guard did in Iran. Al-Qaeda and 9/11 transformed those local contagions into a global threat to U.S. and Allied interests world-wide. Internment during WW2 was predominately confined but not limited to Americans of Japanese descent; some Americans of German and Italian descent were subjected to internment, but not the wholesale relocation and confinement to which Americans of Japanese descent were subjected. The current Islamo-phobic rhetoric of some among us is suggestive of those bygone days of ignorance, intolerance and bigotry. However, the point of my comments in Update no.454 was directly to oppose and thwart such irrational behavior.
The intransigence and I would like to say irrational stance of both poles have allowed the abortion issue to contaminate so many other questions – Embryonic Stem Cell Research (ESCR) being just one of those other questions. ESCR is one of those monumental scientific endeavors that can and will advance mankind, like the human genome project, space exploration, or deep ocean exploration; unfortunately, as noted earlier, ESCR is being hijacked, waylaid, and diverted because we cannot yet find a reasonable compromise solution to the abortion issue. Future generations will look back on these debates as we look back on past medical practices like leeching, bleeding, and such.
I appreciate your opinion about Krauthammer. I try to understand and appreciate all sides to any debate. It is important to listen to all sides.
Perhaps I should study domestic adoptions more. I am certainly no expert, and I am not even particularly well read on the topic. However, multitudinous anecdotal information leaves me with the impression that states do not share adoption candidates; bureaucracies put up a myriad of obstacles, ostensibly to protect children, and yet those hurdles become impediments to the child’s stability; we construct all these laws that make adults afraid of children. I imagine I have a very shallow view of the issue. Nonetheless, there are many reasons why Americans seek to adopt children from foreign countries rather than American children looking for a stable, caring family.
Very interesting, and I must say apropos, observations regarding the transgressions of Xavier Alvarez. Unfortunately, the 9th Circuit interpreted the law in a liberal, expansive and I must add inappropriate manner. I trust the Supremes will see Alvarez for what he is and his “speech” for what it is – a blatant violation of a very, narrowly defined, specific and limited law.
. . . a follow-up comment:
"The word association game will always present challenges."
“Cap, I expected better of you than that.
“Also, the harm to German- and Italian-named Americans during the World Wars (especially II) was mostly other than internment, and more resembled what is happening to Arabs and Moslems today. That is, they suffered random slights, name calling, and loss of jobs and opportunities based simply on their names. The Japanese Americans suffered more seriously; we have not yet reached that level of irrationality with Arabic or Moslem Americans.
“As far as the stem cell research "debate" (brawl), you said what I said except in many more words. I agree with you that future generations will probably see the irrationality of the current discussion, but I wish I knew how long it will take to get there. All of the current parties have been going at it hammer and tongs at least since the Roe v Wade decision came down, and nobody's out of energy or money.”
. . . my follow-up reply:
I’m not exactly certain of the cause for your admonition, but I’ll not argue the point.
To my understanding of history, the application of the internment order(s) was more selective with Americans of German and Italian descent when compared to the near universal application to Americans of Japanese descent. There were probably reasons for such discrimination, but they all pale under constitutional illumination. That episode was a sad moment in American history.
“Many more words” are not necessarily or even usually better; so my bad. Nonetheless, I do agree . . . the catalyst for the societal trauma we continue to endure was indeed Roe v. Wade [410 U.S. 113 (1973)]. Every citizen who renders an opinion on abortion or related issues should read that ruling in its entirety. As I have claimed for many years, the ruling is about a woman’s fundamental right to privacy regarding her body and attempts to define boundaries upon the State’s authority to intrude upon that fundamental right. Regardless, as you note, neither side has shown any interest in meaningful compromise and a stable solution; so the convulsions and collateral damage continue.

Another contribution:
I will have to respectfully disagree with you on the mosque issue. It is not a question of islamophopia. The man behind the mosque has made statements in the past basically saying that it was the USA's fault terrorists decided to fly planes into our building and kill 3,000 people. The plan to build this mosque/cultural center on the place where our country was attacked is supported by Hamas. Hamas! A terrorist organization. Those two things alone set off alarm bells in my head. And hears another point. For years we keep getting told by politicians and others that we must be tolerant and understanding of the Islamic faith. Well, why haven't a number of those folks shown reciprocation? Where is their tolerance and understanding to the feelings of the families of those who lost loved ones in 9/11? There are even some Muslims who think a mosque on Ground Zero is not a good idea. Again, it's not the mosque itself. It's the people behind it who we should be concerned with. And Krauthammer has hit in on the head. Cap, people like me are sick and tired of being called racists and homophobes and hate-mongers just because we disagree with the current administration. My state in particular has been singled out by this President and his followers for vicious attacks because we just want to enforce the immigration laws the Federal Government doesn't care to. They even gave a document to the UN that says one of the ways the US has shown it respects human rights is by suing my state. What the hell is that about? Arizona is trampling human rights? What the hell sort of administration is this that shows this sort of hostility to one of its own states? Is it any wonder so many people in this country are angry?
Well, there's my two cents. At least I can take comfort in the knowledge you won't call me a racist or whatever.
Oh yeah, that Alvarez guy disgusts me. You know better than I do than a goodly number of people awarded the Medal of Honor died doing the thing that earned them the medal. Good analogy that there are laws about lying that you're a doctor or lawyer or cop. Those medals should mean something, and there should be some consequences to lying about earning a Medal of Honor or Purple Heart.
My response:
Ah, the beauty of freedom and this Grand Republic – our disagreements, our debates, our efforts to find compromise, balance and common ground.
If the civic question of the Ground Zero mosque was simply a zoning architecture or use issue, we would not be in the debate we find ourselves. Regrettably, we see and hear on television coverage, and read in the Press coverage, we are not simply embroiled in a zoning discussion. I think you will agree there are more than just a few isolated citizens spewing hatred and Islamo-phobic rhetoric (although that is probably not the most appropriate word descriptor). I have seen no evidence that Hamas is funding the Ground Zero mosque project; I would not be surprised; if true, I would also like to know the source of such information. I have long contended that Islam is roughly 600 years behind Christianity. We can argue that the separation of church and state did not begin until 17 centuries after Jesus of Nazareth shared his wisdom with us, and we are still struggling with that separation to this very day. Christianity was the antithesis of tolerance 600 years ago. I argue that we should engage Muslims; we should help and encourage them to assimilate into a society of freedom, tolerance and open public debate. We have Christian churches and congregations in this country that are far more parochial, intolerant, bigoted and anti-American than this imam, this mosque, this group of Americans of Islamic faith. Reverend Wright spouted out far more inciteful words than Imam Rauf.
Again, we shall disagree on Krauthammer’s opinion in many ways, not least of which I am not accusing anyone who disagrees with me of being racist, xenophobic, Islamo-phobic, or homophobic. For those who deserve the label, their words suffice as justification. I do shine a light on words that do not contribute to solutions, finding balance, and furthering American ideals. I have more often than not seen Chuck’s words as divisive rather than inquisitive or contributory.
We agree on the USG’s legal challenge of AZ SB1070. In part, I think the Feds had to sue to protect the Supremacy clause, and yet the Union is failing in its constitutional obligation to protect our borders and immigration. This confrontation is a long way from over.
We also agree on the Alvarez case and others. I suspect the Supremes will overturn the lower courts for the reasons Judge Bybee gave us in his dissent for Alvarez. I want the message to be very clear . . . you lie about such things, you pay the price.

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