31 October 2011

Update no.515

Update from the Heartland
No.515
24.10.11 – 30.10.11
To all,

There was nothing to report regarding my health status this week.

A month ago, I recorded by DVR the presentation by our local Public Broadcasting System (PBS) station, the Ken Burns’, three-part, six-hour, documentary titled simply, Prohibition. The program was a history of alcohol prohibition from the 1826 birth of the temperance movement to the 1933 passage of the 21st Amendment, repealing the 18th Amendment to the U.S. Constitution. As is my inclination in the era of the Internet, computer technology and history programs, I took copious notes. I spent a month writing, cross-referencing, researching, crosschecking, and amplifying the facts Burns carefully collected, edited and told in an engaging, entertaining and thought-provoking story. He did so with meticulous sensitivity to the issues on both sides of the argument. Peter Coyote expertly narrated the work. I cannot and will not recount the history, as that would be impossible and non-productive in this forum. However, I do have a few thoughts I would like to offer. First, every American citizen of any and every age, whether you vote or even care, should attentively watch this documentary, not just for the history, but far more importantly, for what the history means to the ideals of this Grand Republic. Second, I will strongly recommend that each viewer retain an underlying foundational question, what if I substituted any other sinful vice for alcohol – psychotropic substances, prostitution, tobacco, abortion, gambling, hedonism, anything – would the results be the same? Third, I repeat the oft-repeated mantra, we simply cannot legislate morality in a free society. Thus I ask every citizen, is the enforcement of our particular moral choices important enough to sacrifice our precious Liberty and Freedom? Fourth, hopefully, eventually, I truly believe we must learn the hard lessons our grandparents learned – we must remove government from the private domain and refocus it on public conduct. We are either free to make choices for our individual pursuits of Happiness, or we are not free and are slaves to a willful minority and the misdirection of the instruments of State. Drugs, prostitution, et al, may not have the savoir faire of alcohol in the 1920’s, but our dictation of private behavior compromises all of us, whether we recognize reality or not.

Several Press sources reported that Citizens for Responsibility and Ethics in Washington sought documents via the Freedom of Information Act, to learn about the Justice Department’s progress in investigating and prosecuting public officials, specifically the FBI corruption investigation of the now-deceased king of earmarks, Representative John Patrick “Jack” Murtha, Jr., of Pennsylvania. The more we see, the more corrupt Murtha appears. While Murtha will not be held accountable for his actions, hopefully those associated with and who benefited from Murtha’s largesse will suffer the consequences.

After the European Union (EU) ministers approved the new, debt crisis, recovery plan (note below), Greeks turned their ire from the Greek government to Germany and EU ministers, who the perceived as the source of their troubles. French President Nicolas Sarkozy told French television, “Let's be clear; it was a mistake” to admit Greece into the monetary union. He went on to say, “Greece came into the Euro with numbers that were false and its economy was not prepared to assume an integration into the Eurozone. It was a decision that was taken in, I believe, 2001, for which we now are paying the consequence.” Sarkozy’s comments are extraordinary for their frankness and candor, and for their probable veracity. The Greek experience gives us a raw view of the consequences of socialism and corruption. If I was a German citizen, I would not be a happy camper, being asked to sacrifice for the excesses of the Greek government.

News from the economic front:
-- Just before 04:00 [A] ECT, Thursday, 27.October.2011, 17 Euro-Zone ministers announced a substantive accord to reduce Greece’s debt and to expand the firepower of the European Financial Stability Facility (EFSF) after a marathon negotiation. French President Nicolas Sarkozy said the leaders had reached agreement with private banks on a “voluntary” [interesting
word choice] 50% reduction of Greece’s debt in the hands of private investors. He also said they had agreed to bolster the EFSF, the euro zone’s bailout vehicle, four- or five-fold, and suggested they could provide guarantees for €800B to €1.3T of bonds issued by countries like Spain and Italy. The devaluation of Greeks sovereign debt would bring the country’s debt burden down to 120% of its Gross Domestic Product (GDP), a figure still enormous by any measure, but more sustainable for an economy driven into recession by imposed austerity measures, resultant from the nation’s credit-spending frenzy of the last decade.
-- When the mad mullahs of the Islamic Republic of Iran ordered a bloody crackdown on citizens two years ago, Western telecom companies pulled back from Iran, only to be replaced by Huawei Technologies Company, a People’s Republic of China (PRC) telecom giant that now dominates Iran's government-controlled mobile-phone industry. Huawei recently signed a contract to install equipment for a system that allows police to track people based on the locations of their cellphones. Huawei notes that nearly all countries require police access to cell networks, including the U.S. Huawei (and the PRC, let there be no doubt) now plays a role in enabling Iran's state security network.
-- The U.S. Commerce Department reported the U.S. Gross Domestic Product (GDP) grew at an inflation-adjusted annual rate of 2.5% from July through September, the strongest performance in a year. The economy grew a measly 0.4% in the first quarter and 1.3% in the second quarter. Buoyed by stronger than expected consumer spending and greater business investment, the news should soothe concerns the economy may be sliding back toward recession.

Comments and contributions from Update no.514:
Comment to the Blog:
“I wish you well with your prospective surgery. Please keep us advised.
“The life, death, and legacy of Gaddhafi (however spelled) is a large and complex subject that I have not studied in any depth. One facet of this that US media don't seem to share much is that he retained control of Libya's oilfields. We may reasonably expect an outside takeover now.
“While I understand the importance of the line-item veto, I am not lawyer enough to follow your discussion. I tend to share the Supreme Court's position that it is an abdication of power. I see responsibility as a very important issue; this allows Congress to avoid the responsibility for their pork barrel projects and radical notions. The line-item veto also gives the President disproportionate power. Let us remember that the Founders were acutely aware of the abuse of power by kings; they refused to invest great power in our leaders for that exact reason. I share that approach, partly because I remember Nixon's use and attempted use of the intelligence services for personal gain.
“As far as the economy, I am still reading a book named 13 Bankers, written by Simon Johnson, the former chief economist for the International Monetary Fund. It's very illuminating. He is the chief author of the economics blog I read. For a book about economics, it's an easy read as well.”
My response to the Blog:
As we old aviators often say, Wilco!, i.e., Will Comply. Two weeks to my cut day. You can depend upon the Updates as long as I am able.
I do not know about control of the Libyan oilfields, now that Qaddafi is gone. I certainly believe the National Transitional Council (NTC) is working hard to get oil production up & running – after all, oil is their primary revenue stream; I just don’t know how long that will take. Outside takeover; don’t know, suspect not.
Re: line item veto. You hit the point on line item veto precisely. For a long time, I advocated for such authority, thus my humility at the outset of my review. After reading Clinton and especially the dissenting opinions, I acknowledge my conflicted state. Someone in government has to have some semblance of fiscal prudence and accountability. Nonetheless, you are, of course, spot on and otherwise quite right – too much power in the hands of one man or one branch was precisely what the Framers sought to avoid. Nixon is the perfect example. Yet, conversely, we have proven ourselves incapable of demanding our representatives be fiscally responsible. Largesse and reelection are far too powerful counter-forces.
I look forward to your assessment of “13 Bankers.”
. . . round two:
“Perhaps I'm just cynical, but why did the Western world put so much effort into toppling Gadhaffi if they expected only the Libyan people to benefit? History does not support altruism as a sole motivation of such actions.”
. . . my response to round two:
Altruism is perhaps not the proper descriptor. Protecting national interests is probably a more likely motive.
. . . round three:
“Right. How will ‘national interest’ not be seen as the interests of major oil companies?”
. . . my response to round three:
LOL OK, you got me there. We are heavily depended upon foreign oil to sustain our economy, whether we like it or not; so, yes, it would be nearly impossible to separate oil from our national interests . . . just as it was for Japan in 1941.

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

24 October 2011

Update no.514

Update from the Heartland
No.514
17.10.11 – 23.10.11
To all,
For my health update, I lead with a paragraph Jeanne sent to family and friends.
“We saw [our] oncologist, [on Tuesday]. He had all the test results and notes from our family doctor and the urologist. He concurred with [our urologist]. Three options: wait & watch, surgery or radiation. Dad's numbers fall into the intermediate zone, so surgery was his recommendation. He also said statistically, the odds are that it is ‘contained.’”
For those into the data:
I’m 63yo, PSA = 5.4 (3.3 last year), Gleason = 3+4=7, and Stage T1c. Since I plan on living a lot longer (50 years would be good) and I have no other contradictory health issues, it looks like everyone is now agreed – surgery is the best option. I’m scheduled for a Robot-Assisted (DaVinci) Laparoscopic radical Prostatectomy (RALP) on 9.Nov. I’m ready. It is comforting to know there are further options, given the surgical pathology results and my recovery level. According to the Patin Table, given my facts, I’ve got a 63% probability of containment, which to me means success, i.e., longevity. I’m good with that.

On Tuesday, Secretary of State Hillary Rodham Clinton arrived in Tripoli, Libya, becoming the first cabinet-level U.S. official to visit the country since the dictator Qaddafi was driven from the capital nearly two months ago. She met with top officials of the transitional government, bringing encouragement and millions of dollars in new U.S. aid to assist the new government in consolidating its control over a country ravaged by dictatorship and civil war.

I note the demise of Libyan dictator Moammar Muhammad Abu Minyar al-Qaddafi, 69, [dictator since 16.January.1970, then 27] on Thursday, 20.October.2011. Reports of his final moments are rather sketchy, as is often the case in war. It appears an estimated 80-vehicle convoy carrying Qaddafi and his supporters and protectors tried to escape from the coastal community of Sirte. A combined attack by a U.S. Predator drone and a French fighter halted the convoy. The Misrata Military Council, the battalion of fighters that commanded the two-month siege of Sirte, overran the remnants of the convoy and found the wounded Qaddafi in a culvert under the roadway. Again, various reports suggest the deposed dictator was summarily executed by a young rebel fighter Mohamed el-Bibi, 20, who was credited with firing the fatal shot with Qaddafi’s own gold-plated pistol. Now, the really hard work begins, as the revolution must transform into a stable, peaceful country and rebuild the damaged nation.

In an easily overlooked announcement, Euskadi Ta Askatasuna (ETA) [“Basque Homeland and Freedom” – the Basque militant group] renounced their use of violence and terrorism as a political instrument. ETA sought independence and recognition for the traditional Basque region of Northeast Spain and Southwest France, across the Pyrenees Mountains. ETA has a history of declaring unilateral ceasefires only to carry out another terrorist attack. Only time shall tell whether this is truly a decision for peace.

I like to think I am an informed, engaged citizen, and then I am reminded that I am a miniscule person of simple intellect and limited knowledge, in the grander scheme of things. Unbeknownst to me, on 9.April.1996, President Clinton signed into law the Line Item Veto Act (LIVA) [PL 104-130; 110 Stat. 1200; 2 USC §691]. The first challenge to the law failed as the Supreme Court remanded Raines v. Byrd [521 U.S. 811 (1997); no. 96-1671] to the District Court with instructions to dismiss the complaint for lack of jurisdiction. Then, Congress passed two laws: the Balanced Budget Act of 1997 [PL 105-033; 111 Stat. 251] and the Taxpayer Relief Act of 1997 [PL 105-034; 111 Stat. 788]. President Clinton exercised his authority under LIVA and vetoed Sec. 4722(c) [111 Stat. 515] of Title IV, Subtitle H, Chapter 3, of PL 105-033; and Sec. 968 [111 Stat. 895] of Title IX, Subtitle G, of PL 105-034; before he signed the parent bill into law. The President’s action created an “injury” that satisfied the Article III jurisdictional requirements. Sec. 4722(c) provided a Medicare refund specifically to the New York City Health and Hospitals Corporation, while Sec. 968 provided tax relief that benefited the Snake River Potato Growers, Inc. The combined, companion cases reached the Supremes – Clinton v. City of New York [524 U.S. 417 (1998); no. 97-1374]. The Court decided LIVA exceeded the constitutional provisions of Article I, Section 7, Clause 2, of the U.S. Constitution – the Presentment Clause. Justice Stevens succinctly summarized the Court’s position, “Abdication of responsibility is not part of the constitutional design.” The Court believed LIVA compromised the implicit but essential Separation of Powers. Congress delegated, actually abdicated, its authority to the President, to make the Executive the “fall guy” for cancellation of spending they intended to placate constituents or special interest groups. The sponsors could claim they allocated the funding agreed and concomitantly claim the President was the bad guy for his line item veto. Conversely, the President could sign a bill he largely supported, while eliminating the spending he disapproved. The reality is, such negotiations should be accomplished within the Article I, Section 7, Clause 2 process, not outside it. Yet, the Supremes did not address composite bills, i.e., multiple “acts” wrapped into a cover bill. We have numerous omnibus spending bills in our history – bills that are vast composites of multiple spending initiatives, laws, resolutions and directives. To say that the deletion of one sentence or modification of one word alters the entire legislation defies logical reasoning. Interesting argument . . . the ruling states that the presidential veto of one line or one word alters the law, and thus violates the Presentment Clause. In a general sense, there is no rebuttal. The two items involved in this case are not integrated or essential to the purpose of the law. Yet, conversely, the debate over what is integrated and thus essential to the purpose of the law is a very slippery slope. Nonetheless, the Supremes decided LIVA was unconstitutional – it was all or nothing.

News from the economic front:
-- The People’s Republic of China’s National Bureau of Statistics reported the country’s Gross Domestic Product (GDP) rose 9.1% in the third quarter from a year earlier, down from 9.5% in the second quarter and 9.7% in the first. The PRC’s economic growth slowed in the third quarter but remained at a relatively healthy pace, especially compared to the Western economies.

Comments and contributions from Update no.513:
“I did not read your update last week, so I am just receiving the news below.
“My thoughts are with you today and trust your course of action will be both well considered and inspired.
“We have often discussed the notion of living for today, for we know not what tomorrow will bring. Don't listen to any outside opinions on your riding - trust your heart (and counter steering . . .). I am sure flying an Apache in combat conditions might be a bit risky as well.
“I had to laugh at your comment about riding being close to flying. I had always wanted to get my ticket, but there always seemed to be things getting in the way - and I was telling someone about that this week-end. My closing comment was I truly feel the 100,000+ miles I have on my Harleys were probably as close to what I expect that feeling of freedom would be like if flying.”
My response:
Thx for yr kind words.
I take everything with a grain of salt. I had more than a few folks advising me not to join the Marines, not to go to flight school, not to go to test pilot school, not to jump out of perfectly good airplanes, and so it is with motorcycles. There is risk in life, and there is certainly no more risk than many of my other life experiences. The key is being mindful of the risks and managing our actions to mitigate those risks.
I’m coming up on 1,000 miles on this bike. I still have a way to go regarding smoothness, but at least I’m under control, conservative in action, and balanced.
What do you think about a trip out to Beaumont for breakfast on Saturday? My treat. Forecast looks like it might be amenable. I think I’ve got about 80 miles left before my 1,000-mile mandatory service, so I should be OK, if I don’t ride this week. BTW, the rookie is always the wingman.
[PS: We had a great ride on Saturday, to the Carriage Crossing in Yoder, Kansas, for a magnificent breakfast.]

Another contribution:
“Recently had 3 of my aviator buds from my flying days with the same affliction. They all opted for surgery and are doing great. If that is any indicator the 90% advice is solid.”

Comment to the Blog:
“I encourage you to seek the best available advice on your struggle with cancer. I myself have no useful knowledge to share, but I am concerned for you.
“I rejoice that your wife is beginning to share your love of the motorcycle. Enjoy it.
“I will repeat my assertion that a war on a concept cannot be won. ‘Terrorism’ is a concept embedded in the quote you shared, and it is as amorphous as ‘poverty’ or ‘drugs,’ two other concepts on which we continue lengthy ‘wars.’ This leaves the simple fact that the US government can choose to kill a US citizen without due process as my concern here. That fact overwhelms all other concerns about civil rights. While the Mann Act is a travesty in its own right, if ‘human traffickers’ can be seen as terrorists (and they can if manipulative people define terrorism), death or the threat of death supersedes all other attacks on their rights. That applies to anything else that powerful individuals dislike or see as obstacles to their own goals.
“I regret if it upsets you that judges have political opinions which occasionally show up in their writings. While I see other judicial politics as more upsetting, such as the current Supreme Court, pretty much any act can be seen as political in the broad sense that it endorses some positions and refutes others. For example, if a gay person chooses to remain in the closet, that choice essentially endorses the moral and political statement that homosexuality is wrong. Any number of other examples could illustrate the statement. Even one’s choices of food (organic or not, vegetarian or not, genetically modified or not, prioritized to price, nutrition or taste) express opinions and ideas about subjects regulated by the political system. In the last analysis, objectivity is relative. Judges’ opinions are bound to show up at some points.”
My reply to the Blog:
Thx for the encouragement. Good advice . . . taken with gratitude.
We plan to enjoy the bike as much as can safely and comfortably be done.
Once again, I do not think we are at war with a concept. We are at war with those who seek imposition of their ideology on everyone by violent means.
I think we all share your apprehension and concern about extrajudicial killing. The central element in the al-Awlaqi case was the cost of exercising a warrant in the instance of a man who publicly threatened the safety of innocent American citizens and incited others to carry out violent acts against American citizens. We do not know the process by which the government fights this war. One day we will know. Then, we can make our judgments. The risks of this practice are enormous, just as the consequences of losing the War on Islamic Fascism are enormous.
Judges having political opinions is only natural; after all, they are flawed human beings as we all are. It is rare that a judge’s political opinions are so blatantly expressed. Usually judges are more sophisticated and subtle. Not so in that case. Interesting logic, nonetheless. Well done.

Another contribution:
“I see you have been very busy during the week. Please keep me apprised of your visit tomorrow in Kansas City. I presume, should you decide to continue with this path, your surgery would take place in Kansas City? What is the recovery period for something like this? What are you looking at down the road?
“You have been in my thoughts every day.”
“Should you decide to have this surgery in Kansas City, do you know if they use a Da Vinci Surgical System for the prostate surgery?”
My response:
LIFO. Yes, the urologist/surgeon will use the DaVinci robotic system. The surgery will be accomplished in Wichita, rather than Kansas City. He used the machine for Jeanne’s surgery and far better than highest expectation; so, I am optimistic.
He said I should be up & around the next day, and should be 6-8 weeks before we have a clear view of results. Of course, a major concern is the pathology report; we should have a quick shot that day with full results in 3-4 days. The pathology of the removed tissue will determine further action.

A different contribution:
“Take care of yourself and get another opinion on the cancer, especially another biopsy, if possible. He sounds like an excellent surgeon but in the case of cancer, two opinions are usually more helpful than one.
“Since we are in full election campaign mode, I see little relief from the excessive political rhetoric we are subjected to on an hour by hour basis. I really would like to see term limits for all, and limited time for campaigning. Right now, it's who has the most money for later on that is determining the direction of the campaign.
“I think that Romney may have overplayed his hand on demanding investiture as ‘The Republican Candidate’ for President so early. I, for one, am not convinced he is the right man (or woman) as yet-he is only the most experienced debater and has the most money. I am upset that the Republican establishment is ready to anoint him and there are others that have as much or more support.
“The whole point of the above two paragraphs is I'm tired of campaigning already and there is a long ways to go.”
My reply:
I could not agree more. These two-year campaign marathons are debilitating, and they’re all about money . . . nothing more, nothing less. I’m with you brother.

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

17 October 2011

Update no.513

Update from the Heartland
No.513
10.10.11 – 16.10.11
To all,
First, please allow me to express my deep, heartfelt gratitude to all those who offered kind and generous words of encouragement, experience, counsel and support after my little, personal announcement last week [512].
Jeanne and I had our follow-up consultation with our urologist. My biggest concern was whether the malignant cells were outside the prostate. He said insurance and the government would not approve a full body scan or bone scan without other indicators, and he said all my indicators point to organ isolation. He also said the scans were not able to detect cells, only collections or tumors, and the only positive method is to check the margins of the organ and the adjacent lymph nodes. He was very careful to outline my options from wait & see to radical excision. We discussed the benefits, risks and prognosis of each treatment modality. My primary objective, by far, is longevity, thus eradication is the leading choice. He was careful to repeatedly say, there are no guarantees. Given my facts and objective, he thought the best choice was surgery; he said I had a 90% shot. My inclination is precisely that.
We had a family meeting Wednesday night (well, at least those who live close by; the others were invited to join by conference call). Everyone handled the news & status quite well, even the grandchildren understood and asked questions. Our youngest son admonished me for what he perceived as jumping too quickly for the surgical option. Out of respect for his counsel, we will do so.
Jeanne summarized our state quite well. “After our family discussion around the table the other night, we have also made an appointment with Dr. Cannon of Cancer Center of Kansas for next Tuesday, October 18th. He was Tinka's (Mom's) oncologist. We thought we would at least cover that area, in case they have come up with some new process of dealing with prostate cancer. Dr. Steinberger is an amazing surgeon and urologist. Dad and I feel good about the decision to take the prostate out of the body; hence, the cancer is removed. This is how he has dealt with both of his skin cancers.”
The journey continues.

Some may be wondering, or even concerned, about my use of the motorcycle [502]. I check the weather every morning, as I usually do. If conditions are favorable, i.e., no chance of rain, reasonable temperatures and wind, I use the bike for my daily commute. I generally stay in the right hand (slow, i.e., lorry) lane and putt-putt along with the flow of traffic. The field of view is far better than any 4-wheeled vehicle. I am much more aware of the air. It is about as close to the sensations of flying as you can get on the ground. However, the big news was actually Jeanne’s first ride with me on Saturday afternoon. She was ready. She suggested we ride across town for an early supper – very nice I must add. We returned home on backcountry roads. It was a perfect day to ride. She is now officially my biker b----, ah lady. Life is good.

The follow-up news items:
-- More on the continuing debate regarding the elimination of Anwar al-Awlaqi [511/12]:
“Killing Awlaki was illegal, immoral and dangerous”
By Mary Ellen O’Connell – Special to CNN
Posted: October 1st, 2011; 03:48 PM ET
http://globalpublicsquare.blogs.cnn.com/2011/10/01/killing-awlaki-was-illegal-immoral-and-dangerous/
and
“America’s drone campaign – Drones and the law – America’s attacks on suspected terrorists should be more closely monitored”
The Economist
Posted: Oct 8th 2011
http://www.economist.com/node/21531477
Since academics are sensitive to such things, I open by noting that Mary Ellen O’Connell is actually the Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution at the University of Notre Dame Law School. Whew! That was a mouthful; now to the meat of this topic. Mary opens here essay with this paragraph: “Every American adult knows what an armed conflict is. The U.S. is engaged in armed conflict in Afghanistan and Libya. It engaged in combat in Iraq from 2003-2011. Thus, every American knows that the U.S. is not engaged in an armed conflict in Yemen - not a real armed conflict. Nevertheless, President Obama placed an American citizen in Yemen on a kill list. Anwar al-Awlaki and several other people were killed on September 30 by a ‘barrage’ of missiles launched from drones operated by the CIA.” She goes on to declare, “So they have been asserting the U.S. is in a worldwide ‘armed conflict with al Qaeda, the Taliban and associated forces.’ This assertion defies common sense.” This is where my tolerance reached the threshold of boil. I would suggest Mary needs to read or re-read the Authorization for Use of Military Force (AUMF) [PL 107-040; 115 Stat. 224]. Further, as a lawyer and presumably as an educator, she should know the importance of language and definitions. The AUMF states, “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The language of the law is quite simple and direct. There are no other limits or constraints (geographic or otherwise); and as noted in the law, the AUMF satisfied the War Powers Resolution [PL 93-148; 87 Stat. 555] [344]. Mary’s inference that the President (either Bush or Obama) did not and does not possess authorization for such action just does not square with the law. Further, I would suggest Mary read, or re-read, Al-Aulaqi v. Obama [USDC DC case 1:10-cv-01469-JDB (2010)] [479]. As acknowledged elsewhere, we all share degrees of unease, trepidation and concern for extrajudicial, international termination of any American citizen, as reflected in Judge Bates’ careful assessment in Al-Aulaqi. We do not know the deliberations carried out within the administration regarding the al-Awlaqi action; they were secret and should remain so, until hostilities cease. As much as my curiosity would like to be fed, I hope we have to wait to know the rest of the story. I am more concerned about winning the war than understanding how the Executive branch made these decisions. I can only deduce from Mary’s choice of words and tone that she sought political inflammation rather than deliberative intercourse. I am not swayed; I trust you are not as well.
-- Umar Farouk Abdulmutallab [419] – AKA the underwear bomber (25.Dec.2009) – answered questions from a federal judge before pleading guilty to charges that include conspiracy to commit terrorism and attempted murder. I trust he shall enjoy the hospitality of the Federal penal system for the rest of his natural life, however unnatural that may be.

The Justice Department announced the criminal charging of naturalized U.S. citizen, Manssor Arbab Arbabsiar, 56, and Gholam Shakuri with conspiracy to assassinate Adel al-Jubeir, Saudi Arabia’s ambassador to the U.S. According to the government’s statement, there is a strong linkage to the Quds Force, the paramilitary unit of the Islamic Revolutionary Guard Corps that reports directly to Ayatollah Ali Khamenei, Iran’s supreme leader, via Quds Force chief Qassem Suleimani. This verges upon an act of war and reminiscent of the Black Tom Island attack by German saboteurs before the U.S. entered World War I [at 02:08:00 [R], 30.July.1916]. This does not bode well for the Islamic Republic of Iran.

After the extended discussion of the Commerce Clause [512], I had cause to read Hoke v. United States [227 U.S. 308 (1913)] – a challenge to the White Slave Traffic Act of 1910 [PL 61-277; 36 Stat. 825] (AKA Mann Act) that prohibited interstate transport of a woman or a girl for immoral purposes [327]. The central issue in Hoke was the use by Congress of the Commerce Clause to inject the Federal government into the practice of prostitution. The Supremes defended the law with no dissent. FYI: the Mann Act is the same law with which the righteous, moral guardians of the Bush administration threatened Governor Elliot Spitzer [12.Mar.2008; 327]. The Mann Act was passed in the era of Anthony Comstock, the Women’s Christian Temperance Union and the Anti-Saloon League, the rising tide of Prohibition, along with all those other moral projectionist laws we still suffer, now in mutated forms. Our grandparents learned the hard lessons of legislating private morality. It took them 13 years to recognize consequences and correct a dreadful wrong. We have but to read the Mann Act and Hoke in the context of the Declaration and Constitution to see the unfortunate over-reach. What if one state legalized prostitution, say Nevada, and a woman was transported (excluding of course her ability to transport herself) from a legal state to a prohibited state to practice her trade or avocation, or vice versa. Would the Mann Act still apply? With the abandonment of the doctrine of coveture, would such an act still be valid? What about men or boys for immoral purposes? Who determines what is “an immoral purpose”? These are very slippery questions that deal with predominately private conduct . . . except as they intersect with the public domain. So, all of these private morality laws must be repealed as they no longer exist in the context in which they were created. I know I am a broken record, but We, the People, must remove the government (in all its forms) from our private lives and resist the urge to dictate how we are to live our lives. Freedom of choice is an “unalienable” right, endowed to each of us by our Creator. Private morality is between the individual and God.

On 29.September.2011, a three-judge panel of the Ninth Circuit Court of Appeals rendered its judgment regarding the appeal of Log Cabin Republicans v. United States [USDC CA(CD) case no. cv-04-08425-VAP (2010)] [456, 457, 461] – Log Cabin Republicans v. United States [9CCA 10-56634 and 10-56813 (2011)] – the “Don’t Ask, Don’t Tell” challenge. The judges declared the case moot after enactment of the Don't Ask, Don't Tell Repeal Act of 2010 [PL 111-321; 124 Stat. 3515] [471], which was certified by the military in accordance with the law and became effective on 20.September.2011. The court vacated the district court decision and all associated injunctions, and ordered the case remanded to the district court with specific orders to dismiss the case. I do not think I have seen such a pointed and harsh judgment before. Circuit Judge Diarmuid Fionntain O'Scannlain was not satisfied and chose to write a concurring opinion to skewer District Judge Virginia Phillips. His concluding sentence, “When judges sacrifice the rule of law to find rights they favor, I fear the people may one day find that their new rights, once proclaimed so boldly, have disappeared because there is no longer a rule of law to protect them.” We do not see judicial pronouncements that border on accusations of judicial malfeasance very often. Let it suffice to say, Judge O'Scannlain’s opinion is just as political as Judge Phillips’s original decision, it seems to me – it all depends upon perspective. Nonetheless, I suspect this case will end here, although the issue of reinstatement remains.

Comments and contributions from Update no.512:
Comment to the Blog:
“You gave us the numbers on your diagnosis but no interpretation. What does this mean? The only clue I have is the death rate of 28,000 out of 218,000 men diagnosed, which works out to 1 in 8. Please tell us more about the meaning of the figures. We are concerned about you.
“If that British study is correct and applicable, I guess I won't worry about my prostate health too much yet.
“Your suggested alternative to the individual health care mandate, denial of services, will not happen. Most of us are not teabaggers in the political sense of that term. Besides, even the patron saint of sociopathic greed, Ayn Rand, found it necessary to draw on government health care eventually. The teabaggers will follow that role model anywhere.
“You and I are old enough to remember 1968; Occupy Wall Street brings back memories of that time. We shall see what happens. In the meantime, I'll be going to more demonstrations here.”
My reply to the Blog:
I chose not to get very verbose. Those who cared, would ask, as you have done. I will have more to say in the Update when we know more.
The information received from my biopsy confirmed stage 1 prostate cancer. The N & M portion of the stage are for regional and general involvement, respectively; thus, the question marks (not yet determined). The Gleason score is the pathologist’s grading system for this type of cancer; the first number is the primary cell pattern, along the secondary cell pattern equals the total. My score suggest a less aggressive form, but more testing is needed. My next consult is Wednesday to lay out the plan.
Re: individual mandate alternative. My proposal was more tongue in cheek to make the point that we cannot have it both ways – the status quo ante is unstable, unfair and otherwise unacceptable. I want the Supremes to curtail the reach of the USG via the Commerce Clause; yet, I also want the individual mandate to proceed; we can make it better as we gain experience.
I don’t think it is sociopathic greed. The real question for us is balance; where is the balance point? Communism is equally unacceptable as unregulated, capitalistic greed. The balance exists between the two extremes; we must find that point.
Yes, I remember 1968 vividly. Both the OWS and TP movements have flavors of those bygone movements. I am not a crowd person, so you will not find me at that type of public demonstration.

Another contribution:
“Too much to respond to, but as to killing a U. S. citizen involved in the war against us, I say he forfeited his rights as a citizen when he joined up with the terrorists.”
My response:
Essentially what Judge Bates concluded in Al-Aulaqi.

I share another, more personal contribution, simply because I belief the information may be of value to others who might face my situation:
“We are very disheartened to hear your disturbing news. Our sincerest hopes and prayers are with you for a favorable prognosis. Many of our friends and family have beat the villain cancer, and modern medicine has certainly contributed greatly to positive outcomes. You will be in the thoughts and prayers of many people and hopefully that will help to give you the strength and determination needed to maintain a positive outlook while meeting the challenge of this adversity.
“You are wise to learn everything you can about prostate cancer to make the best decisions about treatment with the information that you have (I humbly provide these links:
http://www.thermographyarizona.com/cancer_is_preventable.html
and
http://www.chicagotribune.com/news/opinion/editorials/ct-edit-prostate-20111015,0,4641717.story
only because they discuss 1) the big business associated with diagnosing and treating cancer VS placing a focus on preventing cancer, and 2) the rush to pursue radical treatments including surgery).
“I am sure you will keep your readers updated as you learn more about your condition. Just like you keep reminding us every week...take care of YOURSELF,”
My reply:
Thank you so much for your kind and generous words, and thank you for the links.
I also appreciate the your concern about rushing things, but I do not feel like I am rushing or being rushed. I have dealt with two other spots: a basal cell lesion on my right ear (excised 17 years ago; no recurrence), and a squamous cell lesion on my right elbow (excised 1 year ago; so far no recurrence and still a way to go on that one). To the best of our collective knowledge, this next event is a more serious episode, but the sooner the better. I will get through this as I have all other challenges in my life.

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

10 October 2011

Update no.512

Update from the Heartland
No.512
3.10.11 – 9.10.11
To all,

With a somber and clear mindset as well as a sense of literary honesty and candor, I write this paragraph so that no one is surprised . . . no matter what the outcome. As is my practice, I had my annual physical at my birthday, as I have done every year since I was 17-years-old. For the first time in all that time, my family physician noted that his digital prostate check indicated a slight enlargement and my PSA blood test nearly doubled from last year. I had no other indicative symptoms. Our doctor recommended I see a urologist, who in turn noted that the PSA is notoriously unreliable and only a biopsy could reliably determine any abnormal condition. I elected to have the biopsy; I received the results this week. All three right side samples were normal tissue. All three left side sample showed prostatic adenocarcinoma, with 40-90% involvement and Gleason score 3+4=7; stage T1c N? M?. We have not yet eliminated collateral involvement, which should be the next step after my follow-up consultation on Wednesday. Obviously, Jeanne and I have jumped into learning about a very specific topic. Prostate cancer strikes more than 218,000 U.S. men each year; I am now one of those. About 28,000 die of it, making it the most common cancer and second-leading cancer killer among men. For us, the journey has only just begun.

In an odd timing, the U.S. Preventive Services Task Force – the same group that ignited a 2009 firestorm over the efficacy of routine mammography for breast cancer – recommended the prostate-specific antigen (PSA) test for prostate cancer not be used for routine examination without collateral indicators. Perhaps in the category of TMI: according to a recent British study, young males, 15-19yo, should be ejaculating 3-5 times per week for good prostate health. I apparently failed in that health precaution – out of ignorance more so than purposeful disregard. I say this not to offend, embarrass, or make anyone uncomfortable; rather only to raise the topic of how we teach our children. I failed in that regard as well. Nonetheless, I would like to be the poster-child for routine examinations and early detection. Only time will tell.

The follow-up news items:
-- The House quietly passed the Continuing Appropriations Act, 2012 [PL 112-036; H.R.2608; House: 352-66-0-15(2); Senate: 79-12-0-9(0)] [511], which funds the government at FY2011 levels through 18.November.2011, i.e., a stop-gap measure to buy time, hopefully to pass the FY2012 appropriations.

As indicated in Update no.511, I undertook a reading / review of the salient appeals court decision to be placed before the Supreme Court (SCOTUS) regarding health care reform – Florida v. HHS [11CCA nos. 11–11021 & 11–11067 (2011)]. The three-judge panel rendered their opinion on the appeal of Florida v. HHS [USDC FL ND(PD) case: 3:10-cv-00091-RV/EMT (2011)] [477] – the challenge by 26 states of the massive 975–page Patient Protection and Affordable Care Act (PPACA) [PL 111-148; 124 Stat. 119] [432] {please note that I include the amendments of the Health Care and Education Affordability Reconciliation Act of 2010 [PL 111-152; 124 Stat. 1029] under the PPACA banner}. Before we jump into the pool, please allow me to suggest to those who wish to know more about PPACA, the 11th Circuit’s concluding document offers a succinct summary of PPACA at pp. 21-23 with a broader judicial view, pp. 11-53; the court offers an excellent, unbiased, expanded summary in Appendix A: Overall Structure of Act’s Nine Titles (pp. i-xiii); I strongly recommend reading the short summary, if nothing else, and suggest reading Appendix A. The 304-page, 11th Circuit ruling took an inordinate amount of time for me to read and digest, which is an obtuse reflection of how complicated or difficult this issue is . . . for me, at least. Let it suffice to say the states’ challenge acknowledged acceptance of the majority of PPACA, while objecting to several key elements, with the primary focus on the individual mandate of PPACA (created by Title I, Subtitle F, Part I, Section 1501) versus the Commerce Clause (U.S. Constitution, Article I, Section 8, Clause 3) that delegates to Congress the power to “regulate Commerce.” Chief Judge Joel Fredrick Dubina of the 11th Circuit Court of Appeals wrote for the three-judge panel. Three sentences appear to brightly illuminate the central issue in this case. He noted, “The government emphasizes that Congress intended to regulate the health insurance and health care markets to ameliorate the cost-shifting problem created by individuals who forego insurance yet at some time in the future seek health care for which they cannot pay.” Dubina added, “The [states] stress that Congress's authority is to ‘regulate’ commerce, not to compel individuals to enter into commerce so that the federal government may regulate them.” The court concluded, “[T]he individual mandate exceeds Congress's enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority.” Judge Stanley Marcus agreed with the majority on all except their assessment of the individual mandate as he concluded, “At bottom, Congress rationally concluded that the uninsured's consumption of health care services, in the aggregate, shifts enormous costs onto others and thus substantially affects interstate commerce. The individual mandate directly and unambiguously addresses this cost-shifting problem by regulating the timing and means of payment for the consumption of these services. Congress also fairly determined that the mandate is an essential part of the Act's comprehensive regulation of the health insurance market. I would, therefore, uphold the mandate as constitutional, and I respectfully dissent on this critical point.” The individual mandate has no meaning or relevance for the majority of Americans who are covered by health insurance – some purchase their own, some from their employment, and some by virtue of their service to this Grand Republic. Yet, an estimated 50 million citizens are unable to afford health insurance, choose not to have coverage, or are under-insured. In 2008, US$43B in uncompensated medical treatment had to be absorbed by the payers – the cost-shifting mentioned above. The Catch-22 . . . we don’t want to be told we must have health insurance, yet we expect treatment even though we cannot pay for the treatment we receive. That dichotomy is not stable, or balanced, and cannot be sustained. Congress may not have found the correct remedy, but the PPACA Section 1501 requirement is the best effort to date to mitigate the enormous cost-shifting situation. Nonetheless, the bottom line: we simply cannot have it both ways. The State requires a citizen to pay for a minimum level of insurance as a condition to operate any vehicle on public thoroughfares, and establishes penalties for a failure to comply. It could be argued the health insurance requirement is the same; however, the citizen does not have a choice regarding illness (well, other than the argument that preventative medical treatment would avoid many illnesses or at least mitigate the seriousness of illnesses). None of the court documents I have read so far address the preventative or preemptive treatment for life-threatening, highly contagious, infections like influenza, HIV, et cetera. Freedom of choice is the essence of Liberty. Responsibility and accountability for our choices is also vital to an organized society. I have no problem with an individual choosing to reject health insurance coverage, however the consequence you either pay cash for treatment up front as a surety for payment for services rendered, or you are denied treatment. As long as everyone can live with those consequences, then we are good to go with no individual mandate. You just cannot have it both ways. The whole purpose of any insurance is paying a reasonable fee when you don’t need it for the security of not being bankrupted when you do need it. If the individual mandate is determined to be unconstitutional by SCOTUS, another choice for Congress might be new laws to prohibit the transfer of uncompensated treatment costs along with the power to audit hospitals and health insurance companies to ensure that the costs of uncompensated treatment are not passed on, thus doctors, hospitals and health insurance companies would have a choice to make regarding the treatment of individuals who cannot prove they have sufficient means to pay for the treatment they are about to receive; this would naturally have to include emergency treatment as well. In essence, we could require the USG to hire an even larger army of accountants to ensure those who do have Federal health insurance (e.g., Medicare, Tricare, et cetera) are only paying for the services rendered to them rather than supporting the uninsured and underinsured. Of course, such laws within congressional authority would shift the US$43B in uncompensated treatment costs to all other non-Federal health insurance programs as well as à la carte expenses for everyone else. That way, no individual mandate would be required. Now, that sounds fair, doesn’t it? As a citizen and novice student of the law, I think the Supremes have gone way too far with the expansive interpretation of the Commerce Clause ever since Gibbons v. Ogden [22 U.S. {9 Wheat.} 1 (1824)]. As noted above, I am quite conflicted on the constitutionality of the PPACA individual mandate. Being so, I must come down with Judge Dubina. In my parlance, we must move the limits of the Commerce Clause back to a more reasonable and realistic position. Conversely, I believe any citizen who wants health insurance coverage should have it. The Supremes have embraced a federalist bent for many decades now, which suggests they may overturn the 11th Circuit and reflect Judge Marcus’s reasoning. At this point, I urge the Supreme Court to accept the Solicitor General’s petition for preemptive hearing.
One postscript comment: What has not been spoken as far as I can tell is the precautionary / preventative health care necessary to maintain good health and to blunt potentially catastrophic illness in the early stages before it becomes serious or life-threatening.

The continuing debate regarding targeted assassinations:
“Assassinations and the destruction of history”
by Derek Henry Flood
Asia Times
Published: October 4, 2011
http://www.atimes.com/atimes/Middle_East/MJ04Ak01.html
and
“Assassins of Liberty – The death of Anwar al-Awlaki”
by Justin Raimondo
antiwar.com
Posted: October 03, 2011
http://original.antiwar.com/justin/2011/10/02/assassins-of-liberty-2/
A contributor pointed me to an essay by University of Notre Dame Law School Professor Mary Ellen O'Connell, titled: “Killing Awlaki was illegal, immoral and dangerous.” I did not have time to read Mary’s opinion; I intend to do so for next week’s Update. I note that the difference between President Carter’s Executive Order 12036: United States Intelligence Activities, and the Bush/Obama directives for targeted strikes is war, plain & simple. This is not an easy debate. Technology has enabled this capability and the debate, but capture or assassination has been a tool of war since our ancestors began to scratch out a historic record on clay tablets. More to follow; all opinions welcome.

This exchange is reprinted from a different network with the author’s permission:
“I'm too going to read 11CCA opinion [Florida v. HHS].
“Had an extended phone conversation last night with an old friend, [ ], that I've known since a kid, and later he contracted my services in the early 2000's to convert his company to computer accounting (versus their manual bookkeeping methods), and a full contact mgmt/prospect tracking software-driven company. [He] was diagnosed more than 5 years ago with Mesothelioma, malignant lung cancer triggered by asbestos contamination. The fact he is still alive is a miracle, as many victims live only 1 year, with the average max being 3 years. So [he] has beat the odds though they do have a few who have lived 10 years after diagnosis. He was able to do an early retirement in life, at the end of last year. His sons and wife ran the business up to that point. He can afford to take the time off to work on immunity, and he said all the doctor's visits, hospital stays, testing, etc., is almost a full-time job. But he also said that he would never have been able to afford the superior health care he gets (UCLA) had it not been for his business giving him a good income, and then selling the company and using some funds to pay for med-care. He said anyone in a less blessed position, would be dead. His wife did the accounting and said his health care out-of-pocket is costing them about $35K per year, on top of an excellent health insurance plan he purchased but that costs him $1K/month! This week he has to get a new type of SCAN test, that the insurance provider has denied payment for (this time, they paid for the last 2), and so out-of-pocket cost for [his family] is $7,500 for a test.
“The conversation with him caused me much thought about what are the goals of our PPACA, and what will be the real product when implemented. How would it affect someone like [my friend], or let's say many of us who may not have the means to pay for the kind of care [he] gets. Towards the close of conversation, [my friend] said something about his ancestors being from Holland, and that he is not a socialist but wishes the national health care plan could help more people and if he had not had the assets/cash, he would have had to use it.
“You opine/proffer many good things below Cap, causing all of us to think better, about complicated issues in our nation.”
My response:
[Your friend] makes some very good points, and certainly thank him for his honesty and candor. I wish him continued success in fighting that monster. As I’ve said many times, PPACA is not perfect, but at least it makes an attempt to remedy a rather egregious societal problem.
I still have not finished Florida v. HHS [completed now]. Interesting ruling. We still don’t know if the Supremes will honor the USG’s request for preemptive hearing, but I certainly hope they do. Furthermore, it is impossible to predict how the Supremes might decide, but I suspect whenever they render their opinion, it will be a landmark-class decision – after all, there is an epic principle at hand. If the individual mandate is declared unconstitutional, it will render PPACA virtually toothless. With the mood of Congress being what it is, I suspect such a decision will also be the death knell.
. . . a follow-up comment:
“I know this is a very different topic, but would like to see your analysis on the Occupy Wall Street group, perhaps in your next Update. Many I know are very mixed on the activists, or at least who is organizing them behind-the-scenes, in the so-called ‘leaderless’ swell of them across our country. I find their timing ironic, considering the surmounting issues here and abroad. Our GOV needs to pass another spending extension in November or it will again be timed to shut down. I look at the Arab Spring revolutions and wonder too, what entity is behind that as well.”
. . . my follow-up response:
As with the Arab Spring movements, the Occupy Wall Street (OWS) group [if we can even call them that] appears to be “leader-less,” which makes it very difficult to grab a handle on. I perceive OWS in the same vein as the Tea Party (TP) was several years ago . . . an amorphous, public demonstration of dissatisfaction. The TP has not progressed much farther past the embryonic stage, although they have obviously exerted some influence on the political process. Also, the OWS appears to be a left-leaning version of the TP. Indeed, the timing is not good . . . kinda like the union movement in the early 30’s.
As I reported in this week’s Update, the House did pass the Senate’s version of the extension bill HR.2608 [now PL 112-036] that funds the USG at FY2011 levels until 18.Nov. I’m sure you recall the foolishness we had to endure last spring regarding funding extensions upon extensions; I suspect we are now back into that same cycle. Also, the Super Committee on spending reduction has their deadline set at 23.Nov., per the Budget Control Act of 2011 [PL 112-025] [503], and a congressional deadline of 23.Dec. I suspect we’re in store for a raucous few months; and then, primary season starts in January. This will be a hot time in the old town tonight.

News from the economic front:
-- The Bank of England’s Monetary Policy Committee (MPC) announced its decision to buy £75B (US$116B) of government bonds in a new round of quantitative easing intended to hold the inflation rate below its 2.0% target over the medium term and to stimulate the UK's stagnant economy. The MPC also voted to keep the U.K.'s benchmark interest rate at 0.5%. Bank of England Governor and MPC Chair Sir Mervyn Allister King, GBE, FBA, said, “This is the most serious financial crisis we’ve seen, at least since the 1930s, if not ever. We’re having to deal with very unusual circumstances, but to act calmly to this and to do the right thing.”
-- The European Central Bank left its benchmark interest rate unchanged at 1.5% for a third straight month, choosing not to reverse its recent rate increases despite a worsening European sovereign-debt crisis. The euro-zone inflation rate jumped to 3% from 2.5% in September.
-- The Labor Department reported the U.S. economy added 103,000 jobs in September, with the private sector contributing 137,000 jobs. The unemployment rate remained at 9.1% for the third month in a row. A broader measure of the unemployment rate –including people who stopped looking for work or settled for part-time jobs – rose to 16.5% in September from 16.2% the previous month.

Comments and contributions from Update no.511:
Comment to the Blog:
“From here, the important news is the killing of a US citizen by the US government without any due process whatsoever. If that stands, we may as well get used to the loss of lesser rights under the PATRIOT Act and other actions. If the government can kill people, monitoring our communications and all the rest of it fade into insignificance.
“I do not understand your concern with Obama’s lame attempt at health-care reform. That was made to be overturned one way or another. Any time you give a hostile Congress four years before your legislation is enacted, that legislation is strictly a gesture rather than a real change. Not gonna happen.”
My reply to the Blog:
Re: killing al-Awlaqi. Before we go too far down this path, I would suggest re-reading my review of Al-Aulaqi v. Obama [479], or read the case itself. Judge Bates struggled with the legal and moral questions, as we all have. Yet, at the end of the day, I believe he called it the only way he could. Clearly, the al-Awlaqi case existed in a misty, gray zone, but I think Judge Bates pegged it succinctly when he observed, “All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi is thus faced with the same choice presented to all U.S. citizens.” In essence, he cannot claim the protection of the system as he incites others to destroy that system; further, to my knowledge, he never sought constitutional protection; his father did on his behalf.
Re: PPACA. Let it suffice to say, I am not as cynical as apparently you are regarding PPACA. The time allotted for effectivity may have been political, to allow Congress a way out, but I doubt it. I think the effectivity date was to allow sufficient time for the government, the health care and insurance industries, and citizens and companies to prepare for implementation. The 11th Circuit’s Florida v. HHS decision, which I am still studying, offers an exceptional view of PPACA, and more specifically the individual mandate. I believe this case is extraordinarily important legally, constitutionally, personally to all Americans, and worthy of our focused attention.
. . . round two:
“On this particular killing we disagree. I cannot avoid the thought that you cannot see the forest for the trees. In this instance, if a government (any government) can decide to kill one of its citizens without due process, all other discussions of civil rights are pointless. No government is representative with that condition, regardless of what else happens or who bloviates about anything else.
“In the case of health insurance, regardless of the logic given for the time frame, the four years between Congressional passage and implementation is an enormous and unmistakable opportunity for the opponents of the legislation to neutralize it. Given that fact, implementation is not an issue because the law will not be implemented.”
. . . my reply to round two:
Well, now, that was a fairly stiff accusation. I appreciate and share your concern. However, for the moment, we shall disagree. I urge you to read the Al-Aulaqi v. Obama case.
Re: PPACA. Again, we shall respectfully disagree.
. . . round three:
“It's no use telling ordinary people to read a legal case. I have no legal training or background. The information you provide is already the maximum that I can understand and a bit over.”
. . . my reply to round three:
There is no magic to judicial pronouncements. They use the same English language we use. They are quite like reading a philosophy or logic textbook. Nonetheless, as you wish.
. . . round four:
“Having read what I could of some legal decisions, I beg to differ. I suspect you suffer from the most common issue of trainers, not being aware of what you know and how that sets you off from your readers. Your example of a logic textbook is particularly unfortunate, as I have read a couple of them recently in my college experience. I got my grades by ignoring most of the content. The one on ethical analysis, which attempts to apply logic to morality, is the most utter garbage I have ever been obligated to read.”
. . . my reply to round four:
You seem to be in quite the mood this week. Regardless, I concede. There is no point in continuing to waste your time.

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

03 October 2011

Update no.511

Update from the Heartland
No.511
26.9.11 – 2.10.11
To all,

The follow-up news items:
-- The Federal government’s new fiscal year began on Saturday. Well, it appears our dysfunctional Congress has once again succumbed to political recalcitrance [481, 483, 487], resorting to continuing, short-term, operational appropriations. The Senate passed HR.2608 – Continuing Appropriations Act, 2012, retooled from the originally introduced Small Business Program Extension and Reform Act of 2011. As would be the case, the House took a recess, which was obviously more important than funding the government; so, by some unknown slight-of-hand procedure, a diminished House passed a 4-day extension, funding the government into next week, presumably to allow the House to consider the Senate version of HR.2608. We shall see.
-- The Obama administration petitioned the Supreme Court to hear the government’s appeal of the 11th Circuit’s ruling in Florida v. HHS [11CCA nos. 11–11021, 11–11067 (2011)] and the constitutionality of the individual mandate, rather than seek a review by the full 11th Circuit panel or take the time for other lower court cases to work their way through the process. The case being pushed to the Supremes is the appeal of the district court case – Florida v. HHS [USDC FL ND(PD) case: 3:10-cv-00091-RV/EMT (2011)] [477], which is the challenge by 26 states (alphabetically from Alabama to Wyoming) to the individual mandate invoked by the Patient Protection and Affordable Care Act (PPACA) [PL 111-148; 124 Stat. 119] [432]. I am only halfway through reading the decision by the 11th Circuit Court of Appeals [my review next week, I hope].
Just an FYI: pp.21-23 of the 11th Circuit’s ruling offers the best summary of PPACA I have seen to date.
-- Yemen’s Defense Ministry announced and the White House confirmed that Anwar al-Awlaqi – a U.S. citizen by birth and self-anointed Muslim cleric affiliated with al-Qa’ida in the Arabian Peninsula (AQAP) and one of the most influential al-Qa’ida operatives wanted by the United States – has been killed in Yemen’s Marib province. Please recall, Anwar’s father, Nasser al-Awlaqi [a legal resident alien], filed suit against the President in an attempt to prevent the targeted killing of his son. Al-Aulaqi v. Obama [USDC DC case 1:10-cv-01469-JDB (2010)] [479]; he was unsuccessful in that effort, and now any appeal is moot, other than to press the principle involved.
-- On Thursday, the 9th Circuit Court of Appeals issued its ruling on the government’s appeal of Judge Phillips’ injunction against enforcement of “Don’t Ask, Don’t Tell” – Log Cabin Republicans v. United States [USDC CA(CD) case no. cv-04-08425-VAP (2010)] [456, 457, 461]. I have not had the time to read the 9th Circuit’s appeal decision – Log Cabin Republicans v. United States [9CCA no. 10-56634 (2011)]. I do not think the ruling is moot, given the Don't Ask, Don't Tell Repeal Act of 2010 [PL 111-321; 124 Stat. 3515] that became effective two weeks ago [510], because the question of reinstatement of previously discharged service members remains unresolved and depends upon a finding of unconstitutionality. More to follow.

Comments and contributions from Update no.510:
Comment to the Blog:
“Your link to Jennifer Valentino-Devries’ story on “‘Stingray’ Phone Fuels Constitutional Clash” leads to an error message reading ‘Page Unavailable. The document you requested either no longer exists or is not currently available.’ Possibly someone has decided it’s a bad idea for Americans to know about this. In any case, I share your concern about Americans’ civil rights and your fear of another J. Edgar Hoover.
“I welcome the various subpoenas and other investigatory developments involving Wall Street. If Congress will not act to limit Wall Street corruption, perhaps the courts can at least “persuade” people to act according to such laws as still exist to regulate them.”
My reply to the Blog:
Nothing quite so sinister. The newspaper is a subscription service. They want money. I will attach the text to my eMail reply. My apologies.
The Judiciary cannot act without a bona fide complaint.
[FYI: If anyone else would like the text of the article, just ask.]
“‘Stingray’ Phone Tracker Fuels Constitutional Clash”
by Jennifer Valentino-Devries
Wall Street Journal
Posted: September 22, 2011
http://online.wsj.com/article/SB10001424053111904194604576583112723197574.html - ixzz1Yog5FuUB

I extracted one element of my contribution to an extended threat debate regarding societal response to the issue of homosexual rights.
The article that precipitated my reply:
“‘Gay’ culture war: It's nearly lost”
by Scott Lively
Posted: September 23, 2011; 3:53 pm Eastern
http://www.wnd.com/index.php?fa=PAGE.view&pageId=348101
“Dr. Scott Lively is an attorney, pastor and author of several books on the homosexual agenda, including "The Pink Swastika: Homosexuality in the Nazi Party" (co-authored by Jewish researcher Kevin E. Abrams).”
My response:
Wow! Talk about red meat for the carnivore!
Re: “threat to our society posed by the homosexual movement.” I wish someone would articulate the threat. Lively certainly did not do so.
As we have discussed more than a little, any citizen is entitled to their opinion. The difficulty for us as a society rests on the threshold of injurious. When does one person’s opinion become incitement to riot, to violence, to cause injury to another citizen?
I have not read Lively’s “Pink Swastika” book, and I am not likely to waste my time doing so. Let is suffice to say, his statement, “Were the Nazis anti-homosexual? Far from it!” is flat wrong and otherwise a gross distortion of history. Did homosexuals exist among the Nazi hierarchy? Yes, absolutely, as they do in every collection of human beings – the most notable being Stabschef Sturmabteilung Ernst Julius Röhm. Such facts cannot absolve the Nazis from the murder of thousands of homosexuals, simply for being homosexual. Lively’s intimation is no different from Ahmadinejad’s public pronouncements that the Holocaust never happened.
Lively’s concluding paragraph: “The homosexual agenda represents an existential threat to Christian civilization and we're in the final phase of the war, losing badly. It all hinges upon you, Christian reader. Either get into the ‘game’ in earnest, immediately, or wave goodbye.” Now, if I am an impressionable, unthinking, devout, Christian believer, what am I to take away from his statement? Is that an inciteful statement? Am I compelled to take up the sword and avenge the affront to all Christianity?
Lastly, thank you for sharing your note. I would most likely not have become aware of such vitriol.
[NOTE: Reprinting the exchange before and after was too voluminous and not practical in this forum.]

Another contribution:
[Re: the Reno air races accident.]
“I didn't realize that losing a trim tab could have such catastrophic results- but I guess at those speeds they would.
“Also, I have seen several videos of the crash-- he came down at a steep angle. There was no fireball, just disintegration. Any thoughts why no fireball--thank goodness.”
My reply:
The aircraft was not designed for those level-flight speeds. Control loads increase dramatically with speed due to a combination of forces involved. For the P-51D as I understand it, the left tab is fixed to bias the trim-speed band as desired by the pilot. Anecdotal information suggests Leeward had been repeatedly warned that the forces on the left, fixed tab at speed were too high, but apparently he disagreed. If true, a substantial control input would have occurred with the tab failed, and that transfer would have been near instantaneous. A similar, modified, P-51D racer failed in virtually the same manner in 1998 – that pilot was extraordinarily lucky.
Preliminary indications are the engine was putting out full power, so the speed at impact had to be very high. The disintegration at impact reflects massive momentum transfer.
Re: no fireball. First, he had minimal fuel on board for just the heat he was running (minimum weight for maximum thrust-to-weight ratio), so the quantity of fuel had to be quite low. Second, the impact forces probably vaporized the remaining fuel past the combustible threshold. Either that, or there was no ignition source, which I think would be rather doubtful given the energy involved.
. . . with a follow-up:
“Thanks, appreciate the analysis. The speed was very high. There is one video in which you can see the plane diving very quickly to the ground and disintegrating. Thanks for explaining why no fireball- I thought that the high energy at which the plane hit the ground caused what fuel there was to vaporize past the combustible threshold. I hadn't thought about a low amount of fuel.”
. . . my follow-up reply:
When I flew airshow routines, I would generally have sufficient fuel for the routine, times two, which is not much. For racers like that at the airfield, they could literally carry just enough fuel to make it to the finish line and use their excessive energy to glide home . . . although the other competitors would not look kindly on such a maneuver. He probably started with just enough fuel to start, taxi, take-off, stage, run the race, sequence to land and taxi; if he planned it perfectly, the engine would stop on its own.

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