Update no.630

Update from the Heartland

No.630

6.1.14 – 12.1.14

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

To all,

The follow-up news items:

-- On last Boxing Day (26.December.2013), President Obama signed into law the Continuing Appropriations Resolution, 2014  [PL 113-067; H.J.RES.59; Senate: 64-36-0-0(0)]; House: 332-94-0-7(2)]; 127 Stat. xxxx][627] and the National Defense Authorization Act for Fiscal Year 2014 [PL 113-066; H.R.3304; Senate: 85-15-0-1(0); House: voice vote: 127 Stat. xxxx].  Isn’t it interesting how Congress manages to pass proper budget authorization bills for the Department of Defense, but cannot seem to do the same for the remainder of the federal government?  Now, we just need to get through the impending debt limit debate, which has yet to explode; the deadline remains 7.February.2014.

-- With the continuing efforts to legitimize Snowden’s treason [599 & sub], we have this treat of a rather novel rationalization.

“Democracy needs whistleblowers. That's why I broke into the FBI in 1971 – Like Snowden, we broke laws to reveal something that was more dangerous. We wanted to hold J Edgar Hoover accountable”

by Bonnie Raines

The Guardian [of London]

Published: Tuesday 7 January 2014 13.22 EST

http://www.theguardian.com/commentisfree/2014/jan/07/fbi-1971-burglary-hold-government-accountable

Bonnie Raines was one of eight, American, anti-war activists who committed burglary on a small FBI field office in Media, Pennsylvania, on 8.March.1971.  The burglary had been planned for months.  The conspirators chose that Monday night, as they believed local agents and support staff would likely be watching “The Fight of the Century” between Muhammad Ali and Joe Frazier in Madison Square Garden, New York City.  They stole a trove of highly classified FBI documents and eventually exposed J. Edgar Hoover’s warrantless, political surveillance program.  The disclosures eventually led to the formation of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities [27.January.1975, AKA the Church Committee].

            The consequence of the Church Committee was the virtual abandonment of Human Intelligence (HumInt) operations . . . just too unclean for congressional sensitivities.  I can and will argue that specific gap in U.S. Intelligence meant we were far more dependent on allied intelligence agencies for human source material and led directly to our vulnerabilities to al-Qa’ida operations in Aden, Riyadh, Dahran, Nairobi, Dar es Salaam, and of course the 9/11 attacks.  The White House announced the President will address the nation regarding reforms at the National Security Agency (NSA).  My primary concern remains an over-reaction as Congress did in 1978.  We must NOT blind our Intelligence Community – reform, yes; restriction, no.

            If we use the Raines logic, where do we draw the line?  If felonious crimes are an acceptable means to justify the end, then is assault & battery, terrorism or murder reasonable to disclose classified information they believe to be felonious itself?  Labeling traitors as whistleblowers to assuage our ignorance does not change their treason.

In a personal observation of little intrinsic value, has anyone noticed the rather dramatic difference between contemporary movies depicting the wars of their time?  In my generation’s war, we have the likes of:

The Deer Hunter

Apocalypse Now

Platoon

Born on the Fourth of July

In this generation’s war, we have:

The Hurt Locker

Zero Dark Thirty

and now Lone Survivor

My oh my how times and attitudes have changed.  Thank goodness!

Now, this is a fine mess you got us into, Ollie.  On 20.December.2013, United States District Judge Robert J. Shelby of Utah, Central Division, declared the Utah state prohibition against same-sex marriage unconstitutional – Kitchen v. Herbert [USDC UT CD case 2:13-cv-00217-RJS (2013)] {not yet reviewed}.  The 10^th Circuit Court of Appeals affirmed Judge Shelby’s ruling and refused to issue a stay.  Non-heterosexual couples, who have waited a long time for the day, rushed to obtain marriage licenses.  On Monday this week, the Supremes issued a stay in anticipation of hearing the state’s arguments in the appeal.  Then, in an interesting twist, U.S. Attorney General Eric Holder announced on Friday that the federal government would recognize the 1300+ same-sex marriages completed in Utah before the Supreme Court’s stay. 

            While the Supremes declared the federal Defense of Marriage Act [PL 104-199; 110 Stat. 2419; 21.9.1996] unconstitutional in United States v. Windsor [570 U.S. ___ (2013)] [606], they backed away from ruling on state laws with their finding that appellants lacked standing in Hollingsworth v. Perry [570 U.S. ___ (2013)] [604].  I suspect the Supremes see an opportunity to make a definitive statement in the Kitchen case.

District Judge Richard J. Leon of the District of Columbia issued his ruling in the case of Klayman v. Obama [USDC DC civil action nos. 13-0851, 13-0881 (RJL)], regarding the NSA’s Bulk Telephony Metadata Program (BTMP). The arguments used to reach his ruling clearly apply to every American citizen and reasonably to every person who happens to be under the protection of the U.S. Constitution; however, Judge Leon confined his ruling to relief for the plaintiffs only, rather than directly on the constitutionality of the applicable law.

            Judge Leon noted the “first of several ‘leaks’ of classified material from Edward Snowden” by The Guardian newspaper on 5.June.2013.  The very next day, Larry Elliot Klayman, an attorney and founder of Freedom Watch, and Charles Strange, the father of Michael Strange, a cryptologist technician for the NSA and support personnel for Navy SEAL Team VI who was killed in Afghanistan when his helicopter was shot down in 2011, brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence-gathering practices by the United States government relating to the wholesale collection of the phone record metadata of all U.S. citizens.  The second part of this case was brought by Klayman, Strange and two investigators – Michael Ferrari and Matthew Garrison – against the government and a set of telecommunications companies – Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and Apple.  {At this point, I must remind everyone of the joint letter submitted to the U.S. Government (USG) by eight of the leading U.S. technology companies – Apple, Microsoft, Google, Yahoo, AOL, Facebook, Twitter and LinkedIn [626] – protesting the government’s imposition on them with respect to the USG’s various warrantless surveillance efforts, including the BTMP.  Please note the commonality between the two lists.}

            The seismic shift in the law came with the USA PATRIOT Act of 2001 [PL 107-056; 115 Stat. 272; 26.10.2001], and specifically Title II, §215, which added the words “any tangible things” to 50 USC §1861(a)(1).  Judge Leon pointed out, “Congress created a closed system of judicial review of the government's domestic foreign intelligence-gathering,” and “Congress did not envision that third parties, such as plaintiffs, would even know about the existence of Section 1861 orders, much less challenge their legality under the statute.”  Under Judge Leon’s analysis, the USG took a very generous interpretation of the §1861 change and the FISA Court (FISC) sanctions.  Two relevant FISC “opinions were only recently declassified by the Government in response to the Congressional and public reaction to the Snowden leaks,” which Judge Leon believed illuminated the excessive interpretation by the NSA.  His most damning conclusion, “[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.”  Judge Leon’s injunctive relief on behalf of the plaintiffs and against the NSA rests squarely on his quotation of James Madison – “Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.”  The judge’s outrage leaps out of his last sentence, “Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”

            From my perspective, the Klayman decision appears to be based far more on emotion and intuitive perception than on definitive, factual evidence.  I understand Judge Leon’s concern.  I believe we all share the same apprehension.  This is not the first instance the State has exceeded the boundaries of the law as interpreted by the courts.  While Klayman is dramatically significant in the light of contemporary public debate, the actual consequence to national security or even the BTMP is minimal to non-existent, as it is limited to the expunging of existing records and exclusion of metadata collection associated with the plaintiffs only.  The ruling does create a burden for the government, but I cannot see how it would affect BTMP’s contribution to the War on Islamic Fascism.  One positive aspect of the Klayman decision, the judge’s assessment of the BTMP begs for congressional recognition of the vast collection and computational differences between 1978 and 2013, and reform of the intelligence process to allow broad collection and analysis with a strict filtration and access provisions to minimize political or collateral use of the derived information.  Although the judge did not separate national security from prosecution (or other institutionally injurious actions), my contention remains that particular difference remains a vital and distinctive division.  Apparently, to Judge Leon, there is no distinction with respect to an individual’s Fourth Amendment protections.

            Lastly, I must note that public recognition and acknowledgement of the simple existence of BTMP essentially negates the intelligence value, as is so often the case with premature disclosure of intelligence means and methods.  The enemy will adapt to avoid the capabilities of U.S. intelligence collection.  The government has not differentiated the constitutional significance of national security intelligence and criminal prosecution.  To the court, they are one and the same – governmental intrusion upon our fundamental right to privacy – and thus, violate the Fourth Amendment of the U.S. Constitution.

News from the economic front:

-- J.P. Morgan Chase & Co. remains in the headlines as the bank agreed to pay another US$1.7B, this time to the victims of the massive fraud carried off by L’Affaire Madoff [365].  The record settlement with U.S. prosecutors resolves allegations the bank failed to provide adequate warnings about Madoff’s activities.  The deal also includes a deferred prosecution agreement with respect to criminal charges against the bank for violations of the Bank Secrecy Act of 1970 [PL 91-508; 84 Stat. 1114; 26.10.1970].  The deferment will be delayed for two years pending the payments to victims and reforms of J.P. Morgan’s anti-money laundering policies.  According to federal authorities, the payment is the largest ever bank forfeiture and the largest ever Justice Department penalty for a Bank Secrecy Act violation.  Human beings, presumably citizens, not an inanimate bank, perpetrated these crimes.  One of these days, the perpetrators will be punished for their crimes rather than retire with their millions or billions of ill-gotten gains.

-- The Labor Department reported U.S. job growth slowed sharply in December, as payrolls rose a paltry 74,000 jobs, down from the 200,000 plus job growth in the prior two months and the lowest monthly gain in three years.  The separate unemployment rate fell to 6.7% from 7.0%; the decline was probably due to people leaving the workforce.  The weak jobs report may complicate the Federal Reserve's plan to wean its bond-buying program.

Comments and contributions from Update no.629:

“I know that we have a difference of opinion on this issue about which we have previously exchanged comments, but I would encourage you to reexamine your characterization of the issue as pitting the right to privacy vs. the religious liberty of an organization. These two need not be in conflict, in my opinion. They are both important enough not to require compromise of either.

“The organization is not requiring any individual employed by them to act or believe in any certain way. There is no requirement for an individual to inform their employer about anything. There is no invasion of privacy.

“On the part of the organization however, they should not be obliged to act in a way that is contrary to their religious values -- that would include funding religiously objectionable practices.

“An individual so employed would have to acknowledge that as a condition of employment that medical insurance provided would not include those specific services.

“And we know, by the way, that requiring insurance companies to provide these services for free is merely implicitly saying to spread the cost over other acceptable services -- insurance companies (and any other for-profit companies) generally do nothing for free! There would need to be a separate policy, if they wanted those specific services, that the employee would pay for separately.”

My response:

            I’m afraid I must quibble with your characterization of the debate topic and perhaps be a smidge nit-picky.  My point is not about “the right to privacy vs. the religious liberty of an organization.”  This is more accurately about the individual versus the State (organization).  In this instance, the organization in question happens to be a religious one – happenstance, not the point of my argument.  We can turn this to a similar argument of the organization versus the State.  In this instance, it is about the availability of certain, private, medical services to an individual citizen – employee, believer, neighbor or stranger.  This is why I boil this down to the individual versus the organization (any organization from the State to a local shop).

            I fully understand and respect religious objection.  From my perspective, that conflict should be waged at the individual conscience level rather than by organizational dicta.  Further, if services are not used, there are no monies expended; the organization does not pay for what it does not use.  Unless the organization is a hospital or clinic, organizations do not provide medical services.  I imagine most group insurance is about the same; the company provides part of the funding and the individual pays part of it.  We could also argue whether the sponsoring or funding medical insurance is providing services; I do not believe so, as it is general, broad, non-specific and otherwise not unique.  The services used are at the individual level, between doctor & patient.

            Further, I understand and appreciate the moral and emotional debate around contraception and abortion.  If we draw the line there, then what stops any organization declaring other medical procedures morally objectionable and thus excludable?  Where do we draw the line?  To me, the only logical place for such decisions is at the individual conscience level.  We must trust the morality of the individual.  Religion can and should teach.  Individuals must choose what they wish to believe in.  Those beliefs, those moral decisions, belong to the individual, not the State or an organization (religious or not) . . . in my humble opinion.

My very best wishes to all.  Take care of yourselves and each other.

Cheers,

Cap                        :-)