Update no.287

Update from the Heartland

No.287

4.6.07 – 10.6.07

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

To all,
In an evolving format change, we start with follow-up news items:
-- On Tuesday, I. Lewis "Scooter" Libby, Jr., former chief of staff to the Vice President and now convicted felon, was sentenced to 30 months in prison plus a US$250,000 fine for his federal perjury conviction. [199, 203] The White House has indicated that the President will not intervene at this stage of the judicial process, but would not exclude a pardon at some future date. Thus, we can notch up one more example on a long, infamous list of how the cover-up is far worse than the crime.
-- Secretary of Defense Bob Gates announced his intention of replace General Peter Pace, USMC [USNA 1967], as Chairman of the Joint Chiefs of Staff. [199, 205, 212] Peter allowed his personal opinions and beliefs to enter into his professional conduct a few too many times that he became more of a political lightning rod than he already was due to the war. I am sorry to see him end his career like this, but frankly, I think Bob did what had to be done.
-- The President nominated Admiral Michael Glenn Mullen, USN [USNA 1968] -- Chief of Naval Operations -- to replace General Pace as the new Chairman of the Joint Chiefs of Staff. The President also nominated Marine General James E. Cartwright, USMC -- Commander U.S Strategic Command -- to be vice chairman, replacing Admiral Edward Giambiastiani, USN [USNA 1970], since Admiral Mullen's nomination would create an imbalance of services on the Joint Chiefs of Staff.
-- The Senate vote on cloture (to end debate) on the Comprehensive Immigration Reform Act of 2007 [S.1348] failed by a vote of 45-50-4, which puts the bill further away from passage -- status quo ante.
-- Space Shuttle Atlantis finally launched into space, enroute to the International Space Station – always awesome to watch these events. I really like the on-board video -- fascinating shots.

Further, an interesting article for your critical review:
“France: Sarkozy’s old familiar song --
“How to reinvent and reinvigorate the rig”
by Serge Halimi
Le Monde diplomatique
Published: 2.June.2007
http://mondediplo.com/2007/06/02france
-- An intriguing assessment of American and French politics. This rather lengthy article is well worth the effort.

Unfortunate but encouraging news from Iraq indicates Sunni Iraqis in western Baghdad have engaged in pitched battles with al-Qaeda in Iraq operatives. If the growing trend continues, perhaps some Iraqis have decided enough is enough and are taking aggressive action to eliminate the bad guys who are killing indiscriminately on all sides of the sectarian divides. The sacrifice of our children’s generation continues as we watch with critical vigilance for signs of improvement and stabilization in Iraq.

A federal grand jury finally handed down an indictment of Representative William Jefferson of Louisiana on 16 charges of racketeering, soliciting bribes, wire fraud, money-laundering, obstruction of justice, conspiracy, and violations of the Foreign Corrupt Practices Act. You may recall that “Dollar Bill” Jefferson sparked a constitutional crisis last spring after a warranted search of his apartment and congressional offices. [233, 240, 252, 258] The cogs of justice may turn slowly but at least they turn. We have not seen all the evidence against him as yet, but the signs are not positive for ol’ “Dollar Bill” Jefferson, even after his re-election last year. Judging from his performance to date, I suspect “Dollar Bill” does not have the backbone to standup before the bar, admit his guilt, and take his punishment as Representative Randy “Duke” Cunningham of California did. [208] We shall soon see what kind of man Jefferson is; I hope I am wrong. And, we thought the Democrats would be different. Well, perhaps they are . . . different names . . . same corruption, graft and largess.

General Colin Powell, USA (Ret.) -- former Secretary of State and Chairman of the Joint Chiefs of Staff -- spoke his mind on NBC's "Meet the Press" with Tim Russert. He said the U.S. prison at Guantánamo Bay, Cuba, was "a major problem for America's perception" in the world, and that "if it was up to me, I would close Guantánamo - not tomorrow, this afternoon." Unfortunately, I did not see the whole program. Colin added that he would not let “those people” go, but I did not hear what he would do with them. Did anyone see/hear the whole interview? What to do the detainees is a critical action if we are to close the detention center.

The 2nd Circuit Court of Appeals (2CCA) issued a controversial 2-1 ruling in the case of Fox Television Stations, Inc., v. Federal Communications Commission [06-1760]. In the court’s decision, several explicit recitations were offered for the issue at hand – punitive assessments as a consequence of broadcasting what the court calls “fleeting expletives.” The 2CCA decided that the FCC exceeded its constitutional authority to issue heavy fines to the broadcast networks for “fleeting expletives” by entertainers. Set aside the stroll down memory lane of FCC efforts to constraint our freedom of speech, we have a potentially pivotal judicial pronouncement. I suspect the Bush administration will not be able to leave alone, so we are likely to see this issue before the Supreme Court. Profanity says far more about the speaker than the words could ever be injurious, and offensive is hardly public harm. The exception is the impact on children and the concomitant imposition upon parental rights. If parents allow their children to buy and listen to profane and obscene rap music, then it is their choice and prerogative entirely. Broadcasting such music over public radio and television frequencies when children could reasonably be assumed to be listening without parental supervision, then such speech may cause harm, and thus is appropriate for prohibition. However, the Golden Globe or Billboard Music Awards at issue here hardly qualify as children’s programming. Societal disdain is quite appropriate in such cases, but using the instruments of State to enforce our sense of propriety or offense hardly seems proper for incidents where no harm is done. Society and government have a responsibility to maintain a threshold of public conduct and that includes speech when children are likely to be listening. The 2CCA got it right. Perhaps now, we can begin to move back toward a more reasonable and stable middle ground and away from the extremes of either political direction. An interesting side note: the movie “Saving Private Ryan” featured almost exclusively as a counter-rationale to the imposition of speech restrictions.

This past April, the Senate passed two bills regarding federally sponsored embryonic stem cell research. I must admit to struggling with the language in one of the bills; I have made no progress in the last month regarding a proper interpretation, so I thought I would offer some partially formed views hopefully to elicit other contributions and opinions. The first and more conventional bill – the Stem Cell Research Enhancement Act of 2007 [S.5] –requires “the Secretary of Health and Human Services to conduct and support research that utilizes human embryonic stem cells, regardless of the date on which the stem cells were derived from a human embryo, and limits such research to stem cells that meet the following ethical requirements:
“(1) the stem cells were derived from human embryos donated from in vitro fertilization clinics for the purpose of fertility treatment and were in excess of the needs of the individuals seeking such treatment;
“(2) the embryos would never be implanted in a woman and would otherwise be discarded; and
“(3) such individuals donate the embryos with written informed consent and receive no financial or other inducements.”
The second bill – the Hope Offered through Principled and Ethical Stem Cell Research Act of 2007 [S.30] AKA the HOPE Act – sponsored by Senator Norm Coleman of Minnesota offers an intriguing compromise. The language of the HOPE Act at least opens the door to federal embryonic stem cell research with some peculiar constraints. The essence of the bill requires “the Secretary of Health and Human Services to develop techniques for the isolation, derivation, production, or testing of stem cells, including pluripotent stem cells that have the flexibility of embryonic stem cells (whether or not they have an embryonic source), that may result in improved understanding of or treatments for diseases and other adverse health conditions, provided that such techniques do not involve:
“(1) the creation of a human embryo or embryos for research purposes; or
“(2) the destruction or discarding of, or risk of injury to, a human embryo of embryos other than those that are naturally dead.”
Several keys words/phrases in the latter legislation offer some hope of compromise, and yet remain excessively restrictive. “Pluripotent stem cells” means capable of producing two or more distinct mature cell types; these cells are sometimes referred to as adult stem cells. A zygote (ovum + spermatozoa) is the ultimate pluripotent stem cell. Replication occurs in the first days of cellular division with cellular differentiation beginning circa 14 days or so. Adult pluripotent stem cells are many generations down the cellular differentiation tree, and while they have considerable value, they cannot represent the universality of true embryonic stem cells. All this is well and good; however, the phrase that stops me cold in the HOPE Act text is “those that are naturally dead.” I know what the English language means, but I do not know the significance in medical research terms. I have sought an explanation or scientific interpretation, but have failed so far to obtain one. As a layman, I do not know how dead cells might be beneficial in understanding the process of cellular differentiation and division. Further, “naturally dead” suggests exclusion of the very processes we are trying to study, and thus, appears to be counter-productive or exclusive in a back-handed manner.
Late in the week, two important events occurred. The House voted on the S.5 bill directly after two months in stagnation; they passed S.5 by a 247-176-0-10 vote, sending the bill to the White House, which has threatened a presidential veto (again). Both the House and Senate votes on S.5 were short of the 2/3 required to override a veto. The S.30 version remains stagnant in the House. Also, the Press reported the findings of three teams of scientists who claim to have stimulated mouse skin cells to divide as pluripotent stem cells. Shinya Yamanaka of Kyoto University developed the new technique -- inserting just four genes into a skin cell. The researchers caution against premature exuberance, however the signs appear positive. I need to do more reading on this technique and understand the potential. Stay tuned.

Comments and contributions from Update no.286:
"Your commentary on Senator Brownback's article is far more detailed than mine. All I wanted to do is draw attention to the misuse of the word ‘belief’ whenever evolution becomes a matter of public discussion. To say one has a belief in evolution is similar to a belief in gravity. If I don't ‘believe’ in gravity, do I therefore lose my toehold on the planet?
"Belief lies in the realm of the metaphysical. It is beyond human knowing understood as an empirical experience. I believe the origin of life in the universe derived from the actions of a being so far beyond the comprehension of humankind that human science can never approach understanding or connection with this originating force. By making this statement, no one can prove me wrong--at least on this planet in the year, 2007. Proof does not lie in the revelatory books of the three major religions. Not the Talmud, the Gospel, nor the Koran prove anything other than human gullibility to the pronouncements of human understanding of a deity.
"All scientific evidence points to a recent emergence of human life on this planet. Does this make us any less valuable as a species? No. We may be the culmination of a god's design or we may be another step in a series of improvements or we may be the architect of a destructive force. I do not have the wisdom to ascertain the mind of a deity. Those who claim to know the mind of god are either delusional or beyond the evolutionary progress of current science.
"The Williams case? [285] Sorry, Cap, but you know my rejection of a right to privacy in Constitutional cases. What you argue falls squarely within the precedent of Griswold, but that controlling decision was wrongly decided as is true of all of its legal progeny. If you truly accepted an unlimited right to privacy, you would object to all searches and seizures conducted by all federal and state legal authorities even in cases of national security. I don't care to depend on the Court to make that decision. Barring an amendment, I would rather the states or the Congress take up the issue."
My response:
I certainly ascribe to your observations on faith, belief, and science. Religion does not seek reason. The ideal is blind faith; i.e., let the clergy define reason – gives them maximum control. I chose a perspective of history to illuminate the same point. Another reflection in a novel manner is Dan Brown’s “The Da Vinci Code;” even in modern times, murder is perhaps acceptable to protect the theological foundation. The whole basis of heresy as a crime grew from any contradiction of “God’s word” as interpreted by frail men in fancy robes. No need to dwell here. I like your points, as always. [Good novel, by the way.]
Likewise, I know you do not wish to be embroiled in the privacy debate; you’ve stated your position and belief. I am the one who continues to struggle with this notion. I asked your opinion on the Williams case not so much for that aspect, but rather the relationship to the “State’s interest.”
The preamble certainly implies that We, the People, granted specific authority to the Federal government to act on our behalf, not the other way around. The 9th and 10th Amendments appear to add to that assumption. If so, authority not expressly enumerated is retained by the People; is that true or not? I am not in favor of an activist Court legislating from the bench, however, in some cases, the Court remains to only bulwark against oppression by a willful majority, and even then, the Court does not have an unblemished history. I believe a fundamental (above the Constitution) right to privacy exists as noted above and for the simple fact that there is no other limit or boundary to the State’s power beyond self-restraint, which we have seen disappear in the last few decades, e.g., the Controlled Substances Act of 1970. Conversely, as the 11CCA wrote in Williams, the Court is quite reticent to make too strong a case for a citizen’s privacy due to unintended consequences – prostitution, incest, et al. Further, I have never supported an inviolate or unlimited privacy right; the State can and must be able to penetrate the boundary when the interests of the State are threatened, e.g., insurrection, injury, et cetera. Thus, as I tried to say in my opinion, the question hinges upon the State’s interest(s). The sale of sex toys hardly seems to qualify . . . at least the 11CCA did not specify or articulate the State’s interest(s) in supporting the sale prohibition vice use of said devices. Failing to establish the State’s interest, the district court judge got it right, and the 11CCA failed. I guess we’ll see what the Supremes have to say. As I said, I struggle with the nature, strength and substance of the boundary between public and private, as well as the mechanisms by which minority rights are protected. If there is no fundamental right to privacy, what are the limits of State power? If not our property line or front door, our skin . . . our organs, our stem cells . . . our thoughts? One other aspect that bothers me in all this arena of debate, and I tried to briefly articulate in Update no.285, the ability and capacity of the State to intrude on a citizen’s privacy was infinitesimal just decades ago. If we don’t face this question, we may soon find, if we have not already done so, that we have passed the point of no return regarding any semblance of boundary between public and private – the State can act at will anywhere, anytime. Furthermore, the State has repeatedly failed to address the entitlements crisis (Social Security), the border crisis, the earmark pork crisis, et al; I doubt very much the State will find the will to limit its power. And, under what authority does the Legislative branch have to supersede the 9th Amendment, i.e., define powers for itself not enumerated in the Constitution? Rhetorical question, sorry; they’ve certainly done it already and been supported by the Supremes, e.g., CSA & Commerce Clause. Just as you suggest there is no “unlimited right to privacy,” is there any such notion as privacy given the void of specific reference in the Constitution? Are there no fundamental rights? If not, is there no limit to the power, reach, and intrusive ability of the State?

Another contribution:
"I thought you would like to know about this important new public information institution, the Creation Museum:
http://www.creationmuseum.org/
"This wonderful place in Kentucky provides a forum for those who seek to refute the hogwash spouted by pseudo-scientists about such absurd concepts as evolution and paleontology. Where else can you find out the truth about the Ice Ages being a side effect of Noah's Flood? They clarify the fact that Adam, Eve and the dinosaurs lived in harmony in the Garden of Eden.
"Things like this explain much about history, such as how tens of millions of Germans could look the other way when nonsense became law."

Another contribution:
"The board in the Kokesh case recommended to give him a general discharge- as opposed to an OTH."The one thing that concerns me a bit about this case is that while he wore a (utility) uniform in the protest -- it actually was an acting demo -- he took off all insignia. I was a JAG and recall that we had a general, but informal, rule was that we didn't prosecute when people did demonstrations or political events in uniform parts without insignia. Field jackets, blouses, etc. without insignia, patches, ribbons or medals were not considered grounds for prosecution. The real problem was the wearing of a full uniform with ribbons, badges, etc. at a demonstration or partisan political event.
"Further, one sees politicians with military in uniform at events all the time-- and many of these events have to be considered 'political'. During the last election cycle, a Colorado female Congressional candidate got in hot water for having a couple of Marines in full (Blues) uniform get up on the stage with her during a political event. If were are going to punish a discharged Marine for wearing a uniform (w/o insignia) at a demonstration, then we should also do the same for active duty Marines who wear full Blues with ribbon & badges (& covers) at a partisan political event. The pol should also be punished, but I don't think there is a law on the books. Active duty service personnel are often used as props in partisan political events--in full uniform, no less-- and nothing happens. We then punish a reservist not on active duty for wearing a utility uniform- w/o insignia- at a protest. I am more concerned about the former, in that it is one more step on a slippery slope to politicizing the military."
My reply:
In this context, I am very much old school. Whether the uniform is complete with regalia is irrelevant to me. If a reasonable person could easily interpret the “uniform” as legitimate, then they transgressed. When a citizen speaks as a citizen, without larger representation, then they carry with them the full weight and power of the First Amendment. I believe we can say whatever we wish as long as we do not cause injury by our words. Once we identify ourselves are part of some larger organization, e.g., employer, uniform, ministerial frock, et cetera, our First Amendment rights begin to narrow – the higher unit has rights too. I condemned Bill Clinton for abuse of power with an intern, although there was technically no law as such. I condemn these yayhoos for the same reason; however, in the case of the Marines, the service apparently believes they violated UCMJ. I assume from your comments as a JAG officer, you do not agree.
I am not sure about your CO representative example. Were those Marines there to support the event or the politics of the representative? If the latter, they have violated both specific law and traditional political neutrality of the military, and should be punished appropriately. But, if they were neutral and simply a stage presence, then I am not sure about the violation . . . other than association by assembly. And, I don’t think the politico violated the law, but the Marines may have; after all, it is the uniformed military that is expected to be neutral; she may have compromised those good Marines without them knowing, and if so, therein lies an ethical transgression. A neutral and subservient military is vital to the very existence of this Grand Republic and must be devoutly maintained. I criticize the President as a citizen, NOT as a Marine.

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