Update no.388

Update from the Heartland
No.388
18.5.09 – 24.5.09
Blog version: http://heartlandupdate.blogspot.com/

To all,
As we remember our fallen warriors this Memorial Day, may God rest their immortal souls.

I offer my heartfelt congratulations to the crew of STS-125 – the Final Shuttle Mission to Hubble Space Telescope – picture-perfect flight for the magnificent images of Hubble. Then, as the crew waited out the weather to land, the President nominated Major General Charles Frank “Charlie” Bolden, Jr., USMC (Ret.) [USNA ‘68] to be the next Administrator of the National Aeronautics and Space Administration (NASA). Congratulations Charley! Godspeed and following winds.

UPDATE NOTE: I may not by able to distribute the Update for the next two weeks. Jeanne and I are taking a week long cruise with our granddaughters, and their mother and her partner – an anniversary celebration. We leave on Saturday, 30.May.2009, and do not return home until Sunday, 7.June.2009. I have no idea how much reading, researching and writing I will be able to do, and I do not know what kind of computer access I will have. Who knows, the next Update may just be a travelogue of selected images. Nonetheless, I shall return.

The follow-up news items:
-- I wrote my opinion about Nancy Pelosi’s comédie tragique of embarrassing, EIT, briefing / knowledge denials [387]. Here is another opinion:
“Pelosi’s explanations are tortured”
by Leonard Pitts
Wichita Eagle
Published: Monday, May 18, 2009
http://www.kansas.com/opinion/story/816591.html
also published as:
“Pelosi's story has lots of holes in it”
by Leonard Pitts Jr.
Published: Sunday, 05.17.09
Miami Herald
http://www.miamiherald.com/living/columnists/leonard-pitts/story/1050860.html
I do not understand why she decided to take on the CIA, but shots have been fired. Let the chips fall where they may.
-- In a timely follow-up to last week’s topic on religion [387], this opinion column illuminates another dimension for our discussion.
“Should Christians ‘respect’ other religions?”
by R. Albert Mohler, Jr.
Posted: 5/19/2009 8:40:00 AM
http://www.onenewsnow.com/Perspectives/Default.aspx?id=534764
Mohler concluded, “Respect is a problematic category. In the end, Christians must show respect for Muslims by sharing the Gospel of Jesus Christ in the spirit of love and truth. We are called to love and respect Muslims, not Islam.” First, his definition of respect is probably different from mine. To me, respect for another person entails recognition and acceptance of the physical characteristics as well as personal choices of the other person. This does NOT mean that we must agree with the choices the other person has made. Religious Evangelism does not respect the choices of others, but rather conveys an implicit (if not explicit) superiority of one’s beliefs and an imposition of those beliefs on others. I have no problem whatsoever with evangelical Christianity, any more than I do evangelical Islam. Nonetheless, Mohler offers an inverse rational for the wall of separation between church and State.

On Thursday, we witnessed an extraordinary event. President Obama and former Vice President Cheney gave starkly contrasting speeches regarding national security and the current debate involving battlefield combatants and intelligence interrogation. Henceforth, within this particular opinion, I shall refrain from further reference to their political opinions. To date, I have read 13 of the Office of Legal Counsel (OLC) memoranda released by the administration -- 345 pages worth, so far. Perhaps the most salient of the 13 documents in the present debate was the 1.August.2002, Jay Bybee to John Rizzo Memorandum, which analyzed ten, then-proposed, Enhanced Interrogation Techniques (EIT), specifically:
(1) attention grasp,
(2) walling,
(3) facial hold,
(4) facial slap (insult slap),
(5) cramped confinement,
(6) wall standing,
(7) stress positions,
(8) sleep deprivation,
(9) insects placed in a confinement box, and
(l0) the waterboard.
As we all know, everyone, from citizens to the Press to politicians including the President, focus all their wrath on no.10 as well as lump all of EIT under the same label. Before we debate whether an “attention grasp” is torture, please allow me to define the context. In the War on Islamic Fascism, we face extra-national, non-uniformed, fighters who resort to boundless terrorism of innocent civilians anywhere in the World. They fight with explosives, nails, cellphones, guns, computers, ad infinitum, and they have no compunction to hiding and fighting, among innocent men, women and children. We capture battlefield combatants when we can. The vast majority of captives have little intelligence value; they possess no useful information; they are simple suicide-bombers or gunmen. The intelligence process filters those captives as quickly as possible. For those who are known or believed to hold valuable information, the interrogation process must first induce the individual to divulge the information he holds. Some battlefield combatants will give up their information freely and easily. Others will not. Interrogation techniques are intended to apply progressive inducement for the individual to offer up the information they possess. EIT are intended to break the resistance of the most recalcitrant of the high-value battlefield captives. For those how have never worked in the intelligence process, let it suffice to say that information derived from interrogation of battlefield combatants is always considered inaccurate and unreliable, but it is highly valuable when placed in the context of other intelligence data. Even attempts at disinformation have value in connecting the dots. All this said, the low-value captives, and even the high value captives once they have exceeded their usefulness, should be treated with neutral respect to the boundaries of their confinement and the threshold of their proper conduct. Regrettably, the conduct of ill-trained, immature, military guards at Abu Graib prison in Iraq [161, et al] and the careless, foolish disclosures of “those images” have inflicted incalculable injury on our human intelligence (HumInt) processes. What happened at Abu Graib was a grotesque failure of leadership and supervision that compromises our national security. Further, what happened at Abu Graib in the early months of the Battle for Iraq served no proper combat or intelligence purpose other than the sick amusement of those guards. What those guards did was wrong from any perspective, but their mistakes must not compromise the proper intelligence collection process. Yet, to now color the treatment of captured battlefield combatants and more critically the intelligence interrogation of those captives with those Abu Graib abuses is shallow and foolish to the other extreme. As I have written before, intelligence interrogation is NOT prosecutorial interrogation and can (or should) never be used in any judicial process. Once the intelligence filtration and collection processes have been completed, battlefield captives must be confined and detained for the duration of hostilities (i.e., the War on Islamic Fascism). Captive battlefield combatants are not criminal . . . at least not the ordinary fighters . . . they are prisoners for the duration of the war. As the debate raged, the President suffered a serious rebuke. During the consideration of HR 2346 [Supplemental Appropriations Act of 2009, for war funding], the Senate passed Amendment 1133 by an overwhelming majority [Senate: 90-6-0-3(1)], which rejected the President’s request for US$80M to close the Guantánamo detention facility and prohibited use of funds for that purpose – the classic NIMBY syndrome (NIMBY = Not In My Back Yard). I am not a victim of the syndrome, and the famous military prison at Fort Leavenworth is just up the road from me. My objection to the President Bush’s handling of captive battlefield combatants and to President Obama’s politically motivated proposal for the remaining detainees rests on setting a very dangerous precedent. It is so easy to be against something; it is far more difficult to propose an alternative, presumably better, solution. I have yet to hear anyone in the government, in the Press, in the public or even in this forum offer a workable solution for handling captured battlefield combatants or the intelligence interrogation collection process.

This week, I note two bills signed into law by President Obama. The Weapon Systems Acquisition Reform Act of 2009 [PL 111-023; S.454; Senate: 95-0-0-4(1); House: 411-0-0-22(2)] is intended to improve the Defense weapons acquisition process – a noble objective, tried many times, with limited success. Please note the vote record – a rarity for legislation. The other bill was the Credit Cardholders' Bill of Rights Act of 2009 [PL 111-024; HR.627; Senate: 90-5-0-4(1); House: 357-70-0-7(1)] intended to reduce the predatory practices of credit card companies. The controversial, national park, loaded firearms amendment has not shown up in the publicly available text, as yet. I have mixed views of both laws despite their important objectives.

The Senate confirmed J. Randolph “Randy” Babbitt of Virginia as the new administrator of the Federal Aviation Administration of the Department of Transportation.

If we truly want to solve our societal blemishes, from gun violence to abortion, we must seek, determine and recognize the root cause behind individual, personal, private decisions. Outlawing guns or abortion is like treating a broken leg with two aspirin. In My Humble Opinion, we will find the genesis of behaviors we reject or resent lay in the parental-child relationships of the formative years. Crime, or “going Postal” gun violence, or even a woman’s decision to surgically terminate her pregnancy, grows in the flawed decision-making process of an individual’s childhood, not in the availability of a pistol or a surgeon’s scalpel. When we figure out how to help every citizen who wishes to be a parent, to be the best parent they can be, we will solve many of our societal problems. So, let us debate the real issue rather than deplete ourselves on peripheral, façade elements.

News from the economic front:
-- The Obama administration’s EPA and the Department of Transportation issued an edict that requires automobile companies raise the overall fuel efficiency of their vehicles to 35 miles per gallon by 2016 – four years faster than current federal law requires. While such edicts are nice “feel-good” actions, we need far bolder initiatives to make alternative personal transportation means broadly available to the public.
-- The Wall Street Journal published an analysis of the commercial real-estate market. More than 900 small and midsize U.S. banks could experience further losses of up to US$100B by the end of next year, if the recession deepens. Loans for construction of shopping malls, office buildings, apartment complexes and hotels could account for nearly half the losses, consuming capital that is an essential cushion against bad loans. The Journal’s analysis used the same worst-case scenario the federal government utilized in its recent stress tests of 19 large banks. The potential losses could exceed revenue at nearly all the banks analyzed by the Journal. We are not out of the woods, yet.
-- The Obama administration is considering the creation of a consumer-oriented, financial products, regulatory commission to police mortgages and other financial products as part of the government's broader overhaul of financial regulation.
-- Bank of America has raised approximately US$13B on the sale of 1.25B shares of common stock as part of the bank’s effort to gain US$34B in equity to meet the government’s stress test requirements. With the recent sale of its stake in China Construction Bank, the company appears to be more than halfway to its objective.
-- The Wall Street Journal reported that some Federal Reserve officials are open to raising the amounts of mortgage and Treasury securities purchase programs beyond the US$1.75T that they've already committed to buying. They are also projecting a deeper recession than they expected three months earlier and a more sluggish recovery over the next two years with the unemployment rate anticipated to be between 9.2% and 9.6% at the end 2009, and to stay above 9% in 2010.
-- Chrysler named C. Robert “Bob” Kidder – a former CEO and chairman of Duracell and Borden Chemical, and is currently the lead director on the board of Morgan Stanley – as its new chairman, succeeding Robert Nardelli, who had previously announced plans to step down amid the auto maker's bankruptcy filing and alliance with Fiat.
-- The Wall Street Journal also reported that the Treasury Department is moving toward injecting more than US$7B into GMAC, the first installment of a new government aid package that could reach US$14B. The government’s initiative is intended to firm up the company's balance sheet and allow it to grant loans for car purchases at General Motors and Chrysler, and could turn the USG into the largest – potentially a majority –shareholder in the company, which is now owned by GM and a group led by private-equity firm Cerberus Capital Management.
-- Xerox named Ursula M. Burns, currently company president, to succeed Chairman and Chief Executive Anne M. Mulcahy, who will give up day-to-day oversight of the company, when she retires on July 1. Mulcahy will remain chairman and continue to run the board. She became CEO in 2001, and led the company through a string of quarterly losses amid falling market share and a serious probe into the company’s accounting practices. The company is currently under pressure from the global recession as well as the stronger dollar, since it gets most of its revenue from overseas.
-- The GM and UAW have reportedly reached a tentative labor pact little more than a week prior to the auto maker’s bankruptcy deadline. The agreement now puts pressure on the company’s bondholders and secured lenders to make concessions as the company struggles to avoid bankruptcy.
-- Indicted New York, high-flyer, lawyer Marc Stuart Dreier [365] pleaded guilty to eight felony charges: one count of conspiracy to commit securities and wire fraud, one count of money laundering, one count of securities fraud, and five counts of wire fraud, in a scheme to sell US$700M in fictitious promissory notes. He faces life in prison. Civil charges filed by the SEC in December 2008, are pending.
-- The Washington Post reported that the Obama administration is preparing to send General Motors into bankruptcy next week under a plan that would give the automaker tens of billions more in public financing.
-- The Wall Street Journal reported that a Russian Internet investment group, known as Digital Sky Technologies, has offered to invest US$200M in the social-networking company Facebook at a US$10B valuation for the company's preferred stock. The company has been talking to a range of venture capital and private-equity firms to expand its operations. Facebook has not responded to any of the public information.

L’Affaire Madoff [365]:
-- New York lawyer Jeffry M. Picower, 60; Beverly Hills money manager Stanley Chais, 82, and retired businessman Carl Shapiro, 96 – one of Bernie Madoff’s oldest friends – are among at least eight Madoff investors and associates being investigated by the U.S. Attorney of Manhattan. Federal investigators have reportedly gathered sufficient evidence that some investors may have pressured Madoff to deliver certain threshold returns, and then miraculously their accounts would soon reflect those amounts. Prosecutors are also continuing to probe Madoff family members and employees. Madoff is due to be sentenced for his crimes in June. I suspect that ol’ Bernie will have a lot of company in prison.

Comments and contributions from Update no.387:
“Ugh, Pelosi. Saw a great cartoon of her as "Pelosi-o" with a long nose. She is the best example of the worst kind of politician we have in the US of A.”
My response:
Amen!

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

Update no.387

Update from the Heartland
No.387
11.5.09 – 17.5.09
Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- President Obama has decided to oppose a federal judge’s order from June 2006, regarding the public release of detainee images since 2003 [126, et al], as part of legal action by the American Civil Liberties Union (ALCU) and other advocacy groups. The images were expected to be released no later than 28.May. The ACLU seeks the release of hundreds of images showing U.S. personnel allegedly abusing prisoners in Iraq and Afghanistan. The President listened to the warfighting professionals, who argued that the release of more images like Abu Graib would serve little purpose other than further enflame Muslims and endanger U.S. and Allied troops. Fortunately, the President listened to reason.
-- The President continues to grapple with what to do with captured battlefield combatants [371], which his administration has chosen not to recognize as such. As they strive to close the Guantánamo detention facility, they announced their intention to detain some “terror suspects” – actually captured, Islamo-fascist, battlefield combatants – on the sovereign territory of the United States – indefinitely and without trial. Now, why does that sound familiar? The administration also announced re-activation plans for military commission trials [153, et al] for some “suspects” now detained at Guantánamo, and their aim to expand legal rights for defendants while stopping short of the due process protections provided to defendants in civilian courts. This gets more familiar all the time, doesn’t it?
-- Regarding Enhanced Interrogation Techniques (EIT) [126, 313, et al] – the public debate continues unabated. Speaker of the House Pelosi [AKA San Fran Nan] pressed her self-destructive denials regarding prior knowledge of EIT, and this week accused the CIA of misleading her and Congress regarding the employment of EIT. On the flip-side, the CIA denied the request of former Vice President Cheney to release the intelligence yield from those interrogations to counter-balance the distortion surrounding EIT usage. I doubt I could have written a better script to demonstrate why politicians can never be trusted and should never be allowed near national intelligence means & methods. In addition, these latest convulsions are tragic on many levels, but not least of which is the direct aiding of our enemies. I suspect this is far from over and is going to get a whole lot nastier. What is worse, the true losers in this whole debacle are We, the People. I truly hope the New York Times, the traitor(s) who disclosed classified information involving national intelligence means & methods, and President Obama himself feel a sense of vindication and righteous indication . . . at least a few of us can be happy. I am not!
-- On Friday, Lakhdar Boumediene was released from the Guantánamo detention facility and flown to join relatives in France. Boumediene was the petitioner in the Supreme’s pivotal habeas corpus case – Boumediene v. Bush [553 U.S. ___ (2008); no. 06-1195] [340]. On remand, Judge Leon concluded, “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation under the Supreme Court's decision in Hamdi to protect petitioners from the risk of erroneous detention.” Boumediene v. Bush [USDC DC civ action no. 04-1166 (RJL) (2008)] [362/3] In addition to Boumediene, Judge Leon also ordered Lakhdar’s buddies, Mohamed Nechle, Hadj Boudella, Mustafa Ait Idir, and Saber Lahmar, to be released as well. Ah yes, ain’t American jurisprudence just grand!
-- Investigators for the U.S. Attorney interviewed Karl Rove, former chief of the White House Office of Political Affairs, the Office of Public Liaison, and the Office of Strategic Initiatives – regarding his involvement in the firing of a dozen U.S. attorneys in December 2006 [268, et al].

Secretary of Defense Gates asked for and received the resignation of General David D. McKiernan, USA – Commander, International Security Assistance Force (ISAF) and Commander, U.S. Forces Afghanistan (USFOR-A). SecDef nominated Lieutenant General Stanley A. McChrystal, USA [USMA’76] – currently Director of the Joint Staff and former commander of the Joint Special Operations Command – to replace McKiernan; McChrystal’s promotion to general and his assignment must be confirmed by the Senate.

We return to a frequent topic of discussion by way of an essay.
“Religion and Politics Don’t Mix?”
by Mark Alexander
Patriot Post
Published: 14 May 2009
http://patriotpost.us/pdf/09-19a.pdf
The attempt at sarcasm in the title did not ring the bell. The essay gives us a fairly good view of one side of the argument. Alexander began his essay, “For all of our nation’s history, there have been tactical battles between opposing political ideologies – liberals (leftists) who want to liberate us from constitutional rule of law, and conservatives who strive to conserve rule of law. Great political capital has been, and continues to be, expended by the Left in order to offend our Constitution, and by the Right in order to defend it.” The two sentences fairly well set the tone – division and corrosion, rather than debate, negotiation and compromise – so common to both extremes of the ideological spectrum; and, this sample is no different. He concluded, “It may not be in the power of man to alienate the gift of liberty, but it will certainly take the power of men, guided by our Creator, to defend it. To that end, religion and politics are inseparable.” When I read opinions similar to Alexander’s essay, I always wonder, what is it about history that is so hard to understand, learn from and appreciate? Jefferson’s letter to the Danbury Baptists referred to a “wall of separation between Church & State,” rather than any separation between God & State. These arguments are quite typical . . . exaggerate the premise to enflame the believers; along with others like it, this argument has been seriously distorted. The choice of whether or what to believe is a matter of parental education, contemplative consideration, and the utmost of personal choice. The best I can do is urge each and every citizen not to be distracted or confused by such shallow arguments. History is too clear a taskmaster.

Why do some folks continue to blame schools for the conduct of schoolyard bullies, or blame guns for the actions of killers, or blame the police for the behavior of criminals? We seem to have a penchant for the façade of symptoms and an urge for the quick fix. When are we going to focus our attention on the ROOT CAUSE of aberrant public behavior of individuals?

News from the economic front:
-- The Commerce Department reported that the U.S. trade deficit widened during March – the first time in eight months – as the price and use of imported oil both climbed. The U.S. deficit in international trade of goods and services increased to US$27.58B from February’s revised US$26.13B. U.S. exports in March decreased by 2.4% to US$123.62B from US$126.63B as trading partners bought fewer consumer goods and cars. Imports decreased at a lower rate, falling 1% to US$151.20B from February’s US$152.76B.
-- On Wednesday, the European Commission fined Intel a record US$1.45B for abusing its dominance in the microchip market to the exclusion of Advanced Micro Devices – Intel’s main rival.
-- The Commerce Department also reported that U.S. retail sales fell for the second month in a row in April, below expectations, as job losses and uncertainty about the economy put pressure on spending. Sales decreased by 0.4% compared with the prior month. Economists had expected an increase of 0.1%.
-- The Obama administration has begun the process of reforming the financial sector as they seek broadened authority to supervise the virtually unregulated, complex, derivatives financial instruments that were a major cause of the market crisis. The Government’s first shots are only the beginning. I hope they do not attempt to over-regulate, i.e., control, the financial marketplace.
-- The SEC is reportedly moving toward filing civil fraud charges against Angelo Mozilo [358], the co-founder of Countrywide Financial. The potential charges may include alleged violations of insider-trading laws as well as failing to disclose material information to shareholders.
-- The Bank of England dealt a blow to Chancellor of the Exchequer Darling’s hopes of speedy economic recovery, warning that the recession will be deeper, and the road to recovery longer and harder, than it predicted three months ago. The advice seems to be consistent with other sources.
-- Chrysler sent letters to 789 of its 3,200 American dealers revoking their franchises. General Motors followed by revoking 1,100 of 6,000 franchises and may increase that number 2,600 of its dealers. The pain spreads.
-- The Wall Street Journal’s survey of economists suggests the recession may end by August; however, the economy may take years to consume the inventory accumulated by the downturn. Nearly half of the economists said it will take three to four years to close the output gap, while more than a quarter say it will take five to six years. The survey further indicates the unemployment rate may climb to 9.7% by the end of the year, with two million more jobs lost over the next 12 months
-- The Treasury granted preliminary approval for Hartford Financial, Prudential Financial, Lincoln National and Principal Financial insurance companies to receive capital infusions under the government’s Troubled Assets Relief Program (TARP). The beat goes on!
-- The Federales are pressuring the Bank of America Board of Directors to bring in new directors with more banking experience. The Wall Street Journal observed that the effort reflects the balancing act faced by the Government as it tries to steer the banking sector through its crisis while also involved in a broader pattern of engagement in the operations of individual U.S. banks.
-- Under Treasury direction, General Motors is near a deal that would cut its hourly labor costs by more than US$1B a year and reduce its US$20B pledge to the United Auto Workers to cover health-care obligations. Further, GM expects to reduce its cash outlays for retiree health costs by half to about US$10B, and supplement that contribution with a 39% equity stake in the reorganized company. Interesting approach!
-- The U.S. Consumer Price Index (CPI) decreased 0.7% in April from a year earlier, as falling energy and food prices brought consumer prices down by their fastest 12-month rate in over a half century. The CPI was unchanged in April from March. However the core CPI, which excludes food and energy prices, rose 0.3% last month, the largest increase since June 2008 and above expectations. Yet, the data continue to suggest the risk of deflation remains remote, since the drops are still mostly centered in energy and energy-related products.
-- This is really rich! SEC Inspector General H. David Kotz reported the results of an internal investigation to SEC Chairman Mary Schapiro, which indicates that the conduct of two SEC enforcement lawyers may have violated insider-trading laws. The case has been referred to the FBI for criminal investigation. Regulators joining the perpetrators, ain’t life grand!
-- Chairman of Lloyds Banking Group Sir Maurice “Victor” Blank, 62, announced that he will step down from his position by 2010, after a Sunday Board meeting and continuing criticism of his decision to purchase struggling HBOS.

The 2nd Amendment to the Constitution of the United States remains a lightning rod for many who seek government control of firearms. A colleague, friend and contributor offer this observation.
“Received from 3rd party [unattributed] but it says it all. The legislation to be afraid of is the treaty for disarmament … that the Clinton administration would not sign but that Obama eagerly brought up when last in Mexico.
“No matter what your beliefs re: gun control or your political affiliation, it is important you be aware of the following. Please send this to everybody on your list... this is Obama gun control by secrecy.
“Very important for you to be aware of a new bill HR 45 introduced into the House. This is the Blair Holt Firearm Licensing & Record of Sale Act of 2009. We just learned yesterday about this on the Peter Boyles radio program. Even gun shop owners didn't know about this because it is flying under the radar.
“To find out about this - go to any government website and type in HR 45 or Google HR 45 Blair Holt Firearm Licensing & Record of Sales Act of 2009. You will get all the information. Basically this would make it illegal to own a firearm - any rifle with a clip or ANY pistol unless: .It is registered .You are fingerprinted .You supply a current Driver's License .You supply your Social Security # .You will submit to a physical & mental evaluation at any time of their choosing.
“Each update - change or ownership through private or public sale must be reported and costs $25 - Failure to do so you automatically lose the right to own a firearm and are subject up to a year in jail.
“There is a child provision clause on page 16 section 305 stating a child-access provision. Gun must be locked and inaccessible to any child under 18. They would have the right to come and inspect that you are storing your gun safely away from accessibility to children and fine is punishable for up to 5 yrs. in prison.
“This is just a ‘termite’ approach to complete confiscation of guns and disarming of our society to the point we have no defense - chip away a little here and there until the goal is accomplished before anyone realizes it. (Did Obama promise transparency? It seems his motives are more and more transparent while his methods are hidden in back rooms.)
“This is one to act on whether you own a gun or not. If you take my gun, only the criminal will have one to use against me. HR 45 only makes me/us less safe. After working with convicts for 26 years I know this bill, if passed, would make them happy and in less danger from their victims.”
http://www.opencongress.org/bill/111-h45/show
http://www.govtrack.us/congress/bill.xpd?bill=h111-45
My opinion:
The proposed law is similar to all the other damnable morality laws that impose the Government boot on our private lives and affairs. There are many personal and private reasons for a strong, viable 2nd Amendment, most of which are and of every right should be beyond the reach of the State.
The Blair Holt's Firearm Licensing and Record of Sale Act of 2009 [HR 45] – “To provide for the implementation of a system of licensing for purchasers of certain firearms and for a record of sale system for those firearms, and for other purposes” – remains stalled in the House Judiciary Committee. The really scary part of the legislation’s purpose is “for other purposes” – common to many bills but particularly sinister in this instance. I doubt a bill this controversial could withstand public scrutiny. What I fear, and is more likely the path to passage, is burying the legislation in some other massive spending bill, like Defense Appropriations or some such, where it is often very difficult to find and will never be subjected to proper public debate. We must remain ever vigilant. Those politicians are crafty bastards.

Comments and contributions from Update no.386:
“I have read the Yoo and Bybee memos, and they are legally sloppy and poorly written. It is as if they were written after the fact to cover practices, which they may have well been.
“To give one very important example, Yoo did not mention the one case that he should have, Youngstown Sheet & Tube v. Sawyer, a seminal Supreme Court case relating to Presidential powers. (I took Constitutional law over three decades ago, and this is one of the cases that I still recall by name- it is that important. It is Law School 101. As a lawyer, he was ethically and duty bound to have mentioned the case. He was free to distinguish the situations if he could, but he could not ignore the case. In some earlier Yoo writings, by the way, he had relied on the case. This is not a small matter, but is at the heart of a lawyer's responsibility to his client. Republican or Democrat, liberal or conservative, no matter what, this is crucial to being an ethical and responsible attorney. For him to have left out that case in such an important issue was either totally incompetent (which I don't think he is) or unethical. As such, he should suffer sanctions from his State Bar. Further, possibly a criminal case could be made as a violation of "false official statement" in that he made the representation in his official duties of the case law holding in a matter and knew that it was false and not complete.
“As I noted, he could have mentioned the case and given reasons for distinguishing Youngstown from the situation at hand. That he didn’t' do so, tell me that he knew he couldn’t. So he just left out the case, leaving his clients unaware that the case law governing the issue was contradictory to his memo.
“I have been a lawyer for over 30 years and this is one of the basic rules. I know of several attorneys who have been sanctioned over omissions of the holding case law.
“Below is a portion of an article on the Youngstown case and Yoo’s having left it out.
“Yoo’s August 2002 memo said Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force.
“‘As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy,’ says the 50-page Aug. 1, 2002 memo prepared for Alberto Gonzales titled “Standards of Conduct for Interrogation.
“But OPR investigators believed Yoo should have cited and applied Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry S. Truman’s effort to seize steel mills shut down in a labor dispute during the Korean War. Truman believed the strike would threaten national defense. According to the 1952 Supreme Court opinion, Truman ‘issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills.’
“‘The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces,’ the Supreme Court brief says. ‘The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions.’
“The Supreme Court overturned Truman’s order saying, ‘the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.’ Although Truman did alert Congress about his plans, Congress did not delegate authority to Truman nor did they specifically provide Truman with approval to seize the steel mills. Therefore, the Supreme Court found, Truman’s actions were unconstitutional.
“Justice Robert Jackson wrote a well-known concurring legal opinion in the case on the separation-of-powers often cited by constitutional scholars as defining presidential powers during wartime
“‘Justice Jackson’s opinion is the most persuasive of the opinions justifying the decision,’ Scott Horton, a Columbia Law School professor said in an interview. “If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance. It’s obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.
“But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did.”
. . . follow-up comments:
“More background on the memos. I know the JAGs were very upset about this. Again, as I noted in my earlier email. Yoo and Bybee did not cite relevant legal precedent. That is why their memos are being criticized and why at least the bar associations should administer sanctions. Again, Law School 101.
“When military lawyers protested that the brutal interrogation methods may have violated anti-torture laws, White House meetings were hastily arranged involving then-White House Counsel Gonzales, Vice President Dick Cheney, his chief counsel David Addington, National Security Adviser Condoleezza Rice, and other officials from the State Department and the Pentagon.
“The discussions focused on the drafting of a legal memo for CIA interrogators describing what methods could be used against detainees, the sources said. Yoo then crafted a memo, which was signed by Bybee, providing the Bush administration with the legal justification to authorize interrogators to subject suspected terrorists to techniques, such as waterboarding.
“The legal sources said the OPR report criticizes Yoo and Bybee for not citing relevant legal precedent that would undercut their arguments, meaning that the White House was not given proper legal advice. This alleged failure could lead the Justice Department to refer the matter to state bar associations for disciplinary actions, including possible debarment.
“The OPR report also criticizes another OLC lawyer, Steven Bradbury, whose later legal opinions gave additional cover to the Bush administration's interrogation policies, the sources said.”
. . . and a further follow-up:
“Note this article on former FBI agent Soufan regarding questioning of detainees.”
“‘We Could Have Done This the Right Way’ – How Ali Soufan, an FBI agent, got Abu Zubaydah to talk without torture.”
by Michael Isikoff
Newsweek
From the magazine issue dated May 4, 2009
http://www.newsweek.com/id/195089/output/print
My reply:
After reading the first nine OLC memoranda, I wrote, “The analysis of the law appears accurate, at least from the Executive perspective, and yet the argument conveniently ignores the checks & balances to Executive powers to prevent or reduce the likelihood of abuses, as well as the political aspects, i.e., public perception; which weakens the basis for the President’s warfighting authority.” [381] The weakness in the memos (I’ve read) is the paucity of balance, bent upon rationalization of maximum extension of presidential warfighting authority in a highly asymmetric war.
To me, proper counsel is presentation of all aspects of an issue, analysis of the various elements, and a recommendation based on that analysis. Clearly, by the memoranda offered up so far (and they may have been chosen for this purpose), the legal analyses of these sensitive warfighting-related issues appears to be markedly unilateral.
As you noted, I have not found one reference to Youngstown Sheet & Tube Co. v. Sawyer [343 U.S. 579 (1952); no. 744] [350] in the memoranda. As Justice Jackson observed in Youngstown, “Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army?” Yet, with the central theme of presidential power in Youngstown and the present debate, we have one major difference – Youngstown was about domestic authority. Somehow, I doubt either Yoo or Bybee were incompetent or unethical or irrational. Nonetheless, I do agree with your assessment. Youngstown was too important of a case in any debate about presidential constitutional authority to be ignored.
I continue to struggle with the separation of and yet inevitable intersection of judicial prosecution and national security intelligence processes. The 4th & 8th Amendments strive to protect the citizen and define limits of State power; however, they are not shields for attacking the State. I understand and appreciate the need to extend the umbrella of our freedoms to all who enter our sphere of influence. After all, we want all people to enjoy the rich bounty of freedom. We need the Bill of Rights, habeas corpus, and the rule of law to order society, seek proper balance between public and private, and help us realize that bounty.
As I read both 2.August.2002 memoranda, they sought the limit to “enhanced interrogation techniques” for an “increased pressure phase,” involving high-value captives. Yoo & Bybee were cautious with the law, recognizing the vast difference between a common domestic criminal, and a Geneva Convention prisoner of war, and extra-national battlefield combatants. We can debate torture, severe pain, injury, irreparable harm, et cetera. But, we must also define intelligence versus prosecution.
I have asked the same question repeatedly, and as yet, no one has attempted to define the limits of interrogation techniques available to “encourage” a captive to offer up the information they possess. I continue to ask the same question. What is the inducement necessary to get the target to talk?
The techniques discussed in one of the 2.August memoranda do not and have not caused injury. Bybee carefully articulated the need for medical (including psychological) treatment availability as part of the enhanced interrogation processes.
I appreciate Ali Soufan’s sensitivity and all the other FBI & military officers who bring a law enforcement approach to interrogation. As the Isikoff article reported, “They nursed his wounds, gained his confidence and got the terror suspect talking. They extracted crucial intelligence, including the identity of Khalid Sheikh Mohammed as the architect of 9/11 and the dirty-bomb plot of Jose Padilla before CIA contractors even began their aggressive tactics.” I would say, congratulations to Soufan and his colleagues. If the high-value captive can be encouraged to relinquish his information with milk & cookies, I am all for that. If the captive does not cooperate, what next? Do we press on for a decade in hopes he eventually breaks? Do we simply wait him out? How do we rationalize allowing a WMD strike to be executed while we wait for the guy to give up his information? And, when he does, will it be relevant, timely or of any value? I am all in favor of the least possible pressure. I am not and never will tolerate abuse of any captive, but the Bill of Rights does not apply to battlefield captives, which means that if we eventually seek prosecution of high-value captives, the evidence must be developed beyond his interrogation for intelligence purposes.
We must seek and find balance. We are not there. We must also acknowledge that having this debate in public virtually negates the potential benefit of “enhanced interrogation techniques.” They will know and train for the playbook. Never, ever, a good thing, to my thinking.
A postscript:
The issue of Enhanced Interrogation Techniques (EIT) is the last choice for a very few, specific captives. Most battlefield combatants do not possess information of strategic intelligence value. Even the faction that do, perhaps most will respond to convention “police” interrogation techniques. An even smaller percentage might open up using soft “intelligence” techniques. However, there are few like KSM that leave us the only choice of EIT or give up. We are NOT talking about general, indiscriminate abuse of captives. Further, one factor not yet included in this debate is time; do we have time to allow the softer approaches to work?
Despite my attempts to find some rational perspective in this sensitive topic, Porter Goss is correct. Once the New York Times began their exposé, the damage to our national security intelligence means & methods was done, just as it was with the NSA surveillance program. Very sad, actually . . . just to satisfy a political agenda. Oh well, shit happens.

Another contribution:
“I really appreciate your synopses of the various text and legally renderings. After reading most, not all, however, of them you are spot on in your interpretation of them. Your agreement or disagreement with them are always open for discussion.
“COMMENT: one of personal liberty’s greatest good is to allow a person to have and/or create wealth legally without the government spying on us.”
My response:
Discussion and debate is the whole point – not being right or wrong. Thank you for your contribution to the debate.

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

Update no.386

Update from the Heartland
No.386
4.5.09 – 10.5.09
Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- Monday, after the FCC v. Fox Television [556 U.S. ___ (2009)] ruling last week [385], the Supreme Court preemptively vacated the 3rd Circuit Court of Appeal’s ruling in the case of CBS v. FCC [3CCA no. 06-3575 (2008)] [346], and remanded the case to the 3rd Circuit for further consideration in light of the Court’s Fox decision. In CBS, the 3rd Circuit reversed the FCC’s fine of CBS as a consequence of the Janet Jackson Super Bowl incident [113]. Given Fox, I suspect the 3rd Circuit will either reinstate the FCC fine, or challenge the Supremes based on the Thomas “concurrence” and the Stevens dissent. In the 3rd Circuit’s CBS ruling, Judge Rendell felt the court had not gone far enough and should have reined in the FCC. So, the remand opinion should be interesting; however, I do not see CBS v. FCC as the constitutional question that Justice Thomas and the other Supremes seek. Vederemo!
-- Governor John Elias Baldacci of Maine signed into law a bill allowing mono-gender marriage [128, et al]. The District of Columbia City Council passed a comparable law. New Hampshire is reportedly close to passing its law ensuring equal protection under the law with respect to marriage, regardless of gender or sexual orientation. The beat goes on.
-- The intensity surrounding the Influenza A/2009H1N1 virus [384] has ebbed substantially, as world health experts recognized this strain was not as virulent as originally feared. Normal precautions remain good practice. I hope all nations easy up their travel restrictions quickly, to minimize the collateral injury to Mexico’s economy.
-- Bristol Palin [351], accompanied by her father, attended the Eighth Annual National Day to Prevent Teen Pregnancy conference as a featured speaker – for obvious reasons. Wise, young Bristol claimed that abstinence was the only 100% sure means to prevent unwanted teen pregnancies. Of course, she is precisely correct. Curiously, she did not reiterate her statement from the campaign days that abstinence-only [190, et al] promotion is not realistic. Indeed! Yet, here we are; we continue to wish mightily that our children are protected from dirty, nasty sex, by pretending it does not exist, denying our children the education all children should have as part of the maturation process, like being taught to eat properly, to wash properly, to take care of themselves properly. The hypocrisy and lunacy blanketing this whole social topic remains astounding and staggering.
-- We have the first public casualty of the unfortunate Air Force 1 photographic mission [385]. Director of the White House Military Office Louis Caldera [USMA 1978] – son of Mexican immigrants – resigned in the aftermath of recriminations. I have voiced my opinion on this incident; my opinion remains unchanged. Sadly, a good man will be the first scapegoat – a political expedient.

I must acknowledge that I may have been idealistically naïve with the silly notion that the Constitution was derived from We, the People. Perhaps, I am not capable of understanding the 9th &10th Amendments to the Constitution; or, worse yet, that the Framers put those Amendments in the Bill of Rights simply to placate the People into acquiescing for passage of the new Constitution. Maybe, the principles espoused by those Amendments were never intended to be actionable . . . which, I might add, could be one reason the Supreme Court has been so reluctant to cite or interpret those two Amendments. What sparked off Cap’s melancholy, you might be asking yourself?
“Is the new law of privacy strangling a free press? Discuss”
Frances Gibb, Legal Editor
The Times [of London]
Published: April 22, 2009
http://business.timesonline.co.uk/tol/business/law/article6150010.ece?&EMC-Bltn=LJH2LA
It seems our British cousins are struggling with judicial fiat as well. I reviewed the case in question here – Mosley v. News Group [{2008} EWHC 1777 (QB); case no: HQ08X01303] – in an Update last year [346]. The challenge to all democracies as well as the very essence of freedom itself hangs upon the relationship between the citizen and the State. Tyranny comes in many forms, and a death by a thousands cuts is no less fatal. When I get in these funks, I remind myself of a fictional television show, some years back now, and one particular scene in one episode as the staff debated the selection of a Supreme Court justice nominee.
“It’s not about abortion. It’s about the next 20 years. In the 20’s and 30’s, it was the role of government, 50’s and 60’s, it was civil rights. The next two decades are going to be privacy. I'm talkin’ about the Internet, talkin’ about cell phones, talkin’ about medical records, and who's gay and who's not. Moreover, in a country born on the will to be free, what could be more fundamental than this?”
-- Sam Seaborn (Rob Lowe), "The West Wing," Season 1, Episode 9, "The Short List." Original Airdate: 24.November.1999
Indeed! What could be more fundamental than a citizen’s most fundamental right to privacy? The inexorable advance of technology has given government vastly greater reach in space and time, and yet, we continue to flop around like a fish on the pier with this notion of a citizen’s fundamental right to privacy. Congress is not likely to speak up for We, the People, as it would mean diminishment of their power. The Court has proven, over generations of justices, to be reluctant in facing the 9th Amendment’s true meaning, and only begrudgingly acknowledged the sanctity of the private domain. Frances Gibb tickled my ire. I returned to Mosley. Justice Eady wrote, “I accept that such behavior [i.e., Max Mosley’s sexual proclivities] is viewed by some people with distaste and moral disapproval, but in the light of modern rights-based jurisprudence that does not provide any justification for the intrusion on the personal privacy of the Claimant.” Frances also illuminated the principle struggle for democracies – judicial interpretation versus legislative action, the citizen versus the State – and, the constant pressure of the Press’ incessant search for titillating, salacious material to stimulate the repressed masses to buy newspapers. The Press like the Government and even others citizens do NOT have the right to violate a citizen’s privacy. If the Press feels imposed upon on this issue, I am good with that. I am an advocate for a strong, vibrant, inquisitive Press, but I do not want my privacy or another citizen’s privacy – from the famous to the invisible – to be compromised. Privacy is THE issue of our day, and that issue has profound impact on our lives, in ways most of us cannot even imagine.

With national intelligence, high-value captive, interrogation means & methods the hot topic of public debate, thanks in part to our beloved New York Times and a new president seeking political points with vocal minority, I simply cannot avoid returning to the issue. A series of Press opinions pushed me over the edge. I know most folks will not read the noted articles below, and I do not want to make this anymore burdensome that it already is; however, this issue is truly and literally a national security concern of the utmost importance to the defense of this Grand Republic and our Allies. So, for your rumination, as you wish, first up:
1. “Torture: An Author and a Resister”
by Ann Wright
t r u t h o u t Perspective
Published: Friday 01 May 2009
http://www.truthout.org/050109A
Wright – a retired, Army Reserve, colonel – goes after the 1.August.2002 memorandum authored by Jay Bybee to the CIA legal counsel regarding interrogation techniques, and she passes judgment on Bybee and his legal advice. It is not clear to me whether she has even read the memorandum . . . oh well, that is not important, I suppose.
2. “Security Before Politics”
by Porter J. Goss (former Representative and former Director of Central Intelligence)
Washington Post
Published: Saturday, April 25, 2009
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/24/AR2009042403339_pf.html
Goss appropriately states, “Unfortunately, much of the damage to our capabilities has already been done.” He could not be more accurate. I am certain the uber-Left feels so much better knowing they have done irreparable harm to the national intelligence apparatus of the United States, simply to satisfy their sense of morality.
3. “A Chilling Effect on U.S. Counterterrorism”
by Fred Burton and Scott Stewart
Strategic Forecasting, Inc.
Published: April 29, 2009; 1815 GMT
http://www.stratfor.com/weekly/20090429_chilling_effect_u_s_counterterrorism
Burton & Stewart observed, “However, when the release of the memos is examined in a wider context, and combined with a few other dynamics, it appears that the U.S. counterterrorism community is quietly slipping back into an atmosphere of risk-aversion and malaise — an atmosphere not dissimilar to that described by the National Commission on Terrorist Attacks Upon the United States (AKA the 9/11 Commission) as a contributing factor to the intelligence failures that led to the 9/11 attacks.” Now, how comforting is that? They went on to conclude, “As we’ve previously noted, it was a lack of intelligence that helped fuel the fear that led the Bush administration to authorize enhanced interrogation techniques. Ironically, the current investigation into those techniques and other practices (such as renditions) may very well lead to significant gaps in terrorism-related intelligence from both internal and liaison sources — again, not primarily because of the prohibition of torture, but because of larger implications.
“When these implications are combined with the long-standing institutional aversion of U.S. government agencies toward counterterrorism, and with the difficulty of finding and retaining good people willing to serve in counterterrorism roles, the U.S. counterterrorism community may soon be facing challenges even more daunting than those posed by its already difficult mission.”
Oh yeah, I feel better already. Next, and finally in this string:
4. “Is the United States a nation of laws or not?”
by Rod Dreher (Dallas Morning News)
Wichita Eagle
Published Thursday, 7.May.2009
http://www.kansas.com/opinion/story/802090.html
This article was the straw that broke the proverbial camel’s back. I took my virtual pen in hand and wrote to the newspaper editors.
Reader Views,
Rod Dreher’s opinion should strike a sympathetic chord in all American citizens. Taken at face value, how could anyone argue with his point – torture is unacceptable. Further, since the Press and many citizens have convinced themselves that everything President Bush did was bad, illegal, morally repugnant, and punishable, We, the People, should be very careful what we ask for in this arena.
Intelligence operations are not military or combat activities, and are most definitely not matters of judicial or prosecutorial concern.
Battlefield combatants are not criminals. In the present War on Islamic Fascism, our enemies are extra-national fighters who pride themselves on killing innocent civilians; as such, they do not even possess the status of prisoners of war.
Captured battlefield combatants are not equal. Most are just pawn fighters. Some have strategic value in wartime. Information high-value captives possess may save thousands of innocent lives.
There must be an “inducement” for high-value captives to divulge the information they possess. Milk & cookies, and a flat-screen television will not cut it.
All information derived from battlefield combatant interrogations is considered unreliable and inaccurate, and must be correlated with other intelligence data to become actionable.
War is an ugly, nasty, disgusting business, best left to the professionals.
Whether we wish to acknowledge we are at war, conducting a public investigation of our national intelligence means & methods during wartime will serve our enemies far more than any sanctimonious sense of cleansing some among us may seek.
Before we begin this debate, I strongly urge every citizen to actually read the Yoo and Bybee memoranda regarding the law, presidential authority, battlefield combatants, and interrogations. This topic is not as simple as some would like to make it.
In this discussion, Dreher is quite wrong. Our national security interests are not even marginally served by a public investigation of our intelligence interrogation means & methods. If We, the People, insist on an investigation of interrogation techniques, it should be classified TOP SECRET and conducted only behind closed doors, with legislators and staff sworn to secrecy until the war is won.
As Dennis Miller says, “That’s just my opinion, but I could be wrong.”
Now, at this junction, I have probably babbled on too much. Let me conclude by referring to and suggesting a movie that offers a Hollywood version of the complexity of CIA, counter-terrorism, field operations – Ridley Scott’s “Body of Lies,” starring Leonard di Caprio and Russell Crowe. While it is a typical, fictional, overly simplified portrayal, the elements illuminated by the various articles noted above can be readily seen in the story and characters of the movie. Please watch it attentively and think about what was said above.

Another odd, intriguing Supreme Court decision . . . We were treated to an English lesson by the Supremes – transitive verbs, adverbs, modifiers, oh my. The case at issue here is Flores-Figueroa v. United States [556 U.S. ___ (2009); no. 08-108]. The Supremes split grammar / semantic interpretation finer than Bill Clinton’s “That depends upon what the definition of is, is.” Several justices (Scalia, Thomas and Alito) concurred in the decision but reflected some difficulty with the grammar application. The instigator . . . Ignacio Carlos Flores-Figueroa – an illegal alien from Mexico – used fake identification documents to gain employment in this country, and one of the social security numbers he used belonged to another citizen. He was tried and convicted of numerous violations of Federal law, including aggravated identity theft [18 U.S.C. §1028A(a)(1)]. The §1028A(a)(1) statute reads in toto: “Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” The whole case hinged upon the grammatical interpretation of “knowingly,” in that, did Flores-Figueroa know he was using another person’s social security number? The Court said the government has not proven that he knew the social security number he chose to use belonged to another person. Yet, he knowingly “used” a fake number, which only by random happenstance may or may not belong to another citizen. In this instance, the Court illuminated a very shallow but fatal flaw in the current law, namely, that the current law stipulates “knowing” that the social security number belonged “to another person.” This interpretation, while correct and proper, in terms of grammatical interpretation, stands in stark contrast to the next case reviewed. More on this issue is offered below.

The Supreme Court decision in the case of Dean v. United States [556 U.S. ___ (2009); no. 08-5274] would normally not exceed my threshold of interest. In combination with Gant [385] and Flores above, I could not resist – the connection below. Christopher Michael Dean and Ricardo Curtis Lopez robbed a bank, and in doing so, Dean claimed he “accidentally” discharged his pistol. He was convicted of the additional violation of Title 18 U.S.C. §924(c)(1)(A)(iii), which stipulates: “[I]f the firearm is discharged, [the perpetrator must] be sentenced to a term of imprisonment of not less than 10 years.” Of course, Dean claimed his discharge was accidental, and thus, he should not be punished under this statute, as he had no “intent” to fire his weapon. Chief Justice Roberts wrote the Court’s opinion. He illuminated the applicable writing of Sir William Blackstone (1769): “[I]f any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.” Dean was robbing a bank – that sounds rather unlawful to me. Roberts concluded, “Those criminals wishing to avoid the penalty for an inadvertent discharge can lock or unload the firearm, handle it with care during the underlying violent or drug trafficking crime, leave the gun at home, or--best yet--avoid committing the felony in the first place.” The Court affirmed the 11th Circuit’s affirmation of the trial court’s sentencing.

The Court took a direct pragmatic view of the law’s language in Dean, in that the defendant claimed he did not “intend” to discharge his pistol, and the Court stated that intent mattered not to the law in Dean’s case. Yet, the Court stretched “knowingly,” i.e., intent, to direct knowledge that the false social security number belonged “to another person” in Flores-Figueroa. To my thinking, did Flores-Figueroa know his identification documents were not his? Does it really matter as the law is written whether Flores-Figueroa’s gamble with identity theft, when compared to Dean’s “accidental” discharge of his weapon during an armed felony? The Court did not satisfy my curiosity or inquiry regarding the intent, and thus application of the law in Flores-Figueroa. Based on my reading of both cases, Christopher Michael Dean received the punishment he deserved for his crimes; Ignacio Carlos Flores-Figueroa did not.

News from the economic front:
-- Federal Reserve Chairman Bernanke publicly indicated that the U.S. recession appears to be easing, and recovery is likely later this year on the back of firmer household spending, a bottoming housing market and an end to inventory liquidation. He also said that the recovery will probably be slower than usual, and warned that the unemployment rate may remain high as businesses remain cautious about new hiring.
-- The Government will require banks that want to return Troubled Asset Relief Program (TARP) funds to demonstrate their ability to wean themselves off the Federal Deposit Insurance Corporation’s (FDIC) guarantee of debt issuance, which allows firms to borrow money relatively inexpensively. Banks have reportedly issued more than US$333B under the FDIC program since it began last fall.
-- When the capital investment firm Goldman Sachs became a bank holding company last Fall, the ties between New York Federal Reserve Chairman Stephen Friedman and his former firm continue to raise questions and illuminate the complex inter-dependency between regulators and banks. Friedman served as Chairman of Goldman Sachs from 1990 to 1994. Interestingly, he is also Chairman of the President's Foreign Intelligence Advisory Board and the Intelligence Oversight Board – a busy man.
-- The New York Times reported that its parent holding company has notified federal authorities of its plans to shut down the Boston Globe, raising the possibility that New England's most storied newspaper could cease to exist within weeks – a sad commentary to our times.
-- The Bank of England will increase its target for bond purchases to £125B (US$187B) from £75B to further ease liquidity – the timing surprised economists. The Pound Sterling dropped to US$1.5064, and rose slightly against the Euro to €1.1306.
-- The European Central Bank cut its benchmark rate by 0.25% to a new record low of 1%, as expected.
-- Macro-findings of the Government’s bank stress tests continue to trickle out. The Federal Reserve has reportedly advised Wells Fargo, Morgan Stanley, GMAC, State Street, Bank of America, Citigroup and Regions Financial to raise combined US$75B more capital. Banks reported to have sufficient capitalization include Capital One, American Express, Bank of New York Mellon, Goldman Sachs, MetLife and J.P. Morgan Chase. Fed Chairman Bernanke reiterated the stress tests were not “tests of solvency.” Losses at the 19 involved banks could total US$600B in 2009 and 2010, under the government’s gloomy scenario of a deepening economic downturn, with mortgage and consumer loans potentially amounting to 70% of the losses.
-- The unemployment rate increased 0.4% to 8.9%, the highest level since September 1983. The economy has shed 5.7 million jobs since the recession started in December 2007. Nonfarm payrolls fell 539,000 in April, the smallest decline in six months and less than economists were expecting. However, a substantial portion of the improvement came from temporary government hiring in advance of next year’s Census.

Comments and contributions from Update no.385:
“Had to look up PORTUS. However was surprised to find that the PORTUS salary is $400,000 annual, I assume before tax.
“The man with the biggest responsibility in the world, the most powerful man in the world, come on Cap give the man a pay rise! Is he not worth more than those banking morons that have that have moved the world into a financial meltdown through gross incompetence. Is there something wrong with the way we award failure? (None of my business I know!).”
. . . my response:
Actually, it is POTUS vice PORTUS, and I believe none-other-than Sir Winston himself coined the acronym . . . POTUS = President Of The United States. Sir Winston used the term in correspondence with FDR; he referred to himself as “Naval Person” when he was First Lord of the Admiralty, and “Former Naval Person” during his wilderness years and as PM. Interesting relationship those two.
LOL I suppose you’re correct. We should pay POTUS more for what he must deal with 24/7. However, he gets a fancy mansion, personal security, the best biz jet in the world, and lots of “friends.”
Au contraire, mon ami. This financial crisis is everyone’s business; we are all affected in one way or another. I think the law will catch up to many of the perpetrators. However, the law does not cover stupidity or capricious foolishness.
. . . a follow-up comment:
“Sorry mate POTUS, yes you're right nice exec jet! (We're on the flight path to Mildenhall and see lots of Uncle Sam's hardware.) Didn't realize that Churchill coined the expression originally.”

Another contribution:
“Thanks for the obvious effort you put into this update. I respect your opinions and your ability to maintain a certain amount of objectivity on a tremendously disparate and emotional list of topics.
“I also respect your commitment to ‘give POTUS the benefit of the doubt.’ I hope you are correct in your assessment that he is a man of character and that all of us 'cynical' types are missing the big picture during this time of 'desperate times/desperate measures'. I truly hope you are right and we are wrong.
“On the other hand, look at your own list of plusses and minus: Stem cell (OK); Pirate issue (jury's still out) and ‘speaking style.’ Don't you think that's just a little ‘fluffy’ considering even you admit that he stutters excessively if not reading right off the teleprompter? I want this guy’s publicist and spin doctors when I go for my next job interview.
“Now the minuses:
1. Torture memos; (and taking every other opportunity to downplay the real national security issue of our time – Islamic Extremism/terror, in favor of the Johnson/Vietnam paradigm of ‘out of sight out of mind’ so we can focus on the ‘Great Society’);
2. Providing no executive leadership on ‘crisis-justified’ pork;
3. Providing no executive leadership to curtail crisis-justified, no-debate ramrod spending on social programs in an already stressed economy.
“To which I might add: rookie mistakes in foreign affairs diminished only by our own media spin. Failure to confront union bosses to bring about some real long-term, productive change in the auto industry. Questionable (at least) appointments (and/or nominations) to just about all posts. And, of course, taking what seems to be every opportunity to work his redistribution of wealth program.
“Before you castigate me too much on my own ‘fluff’ or ‘spewing of generalities that accomplish nothing,’ (I do deserve some castigation - but not too much...) please review your own assertions about ‘he presents a good image...’ Yes, I do think that is important for a President. But how's he doing it; by following the opinion polls and reading prepared speeches telling his political base what they want to hear? Where’s the beef? Where are the hard decisions that amount to more than ‘dancing with the ‘ones what brung you’?’ Exactly what important decision has he made that does not stink of politics as usual? I personally think you are still in the Barrack ‘honeymoon’ period with the media and the rest of the PC Nation, and it’s going to be tremendously interesting to see if/when/where/what actually pushes you over the edge.
“Again, I see nothing but politics as extremely normal - Chicago politics at that. Yes, we have put lipstick on the pig - but I truly fail to see any other positive change, and a whole bunch of national security screw-up’s on the negative side of the ledger.
“However, (once again) I still sincerely hope you are correct and I’m proven to be just another loony paranoid, a Napolitano Radical…or just plain stupid. I see nothing in Obama but a pretty Carter and I would certainly rather be myopic and stupid than ‘right’ if it means exposing our Nation to that danger.”
. . . my reply:
Thank you for your kind words and generosity. Others will not be so inclined.
Actually, I hope I am wrong as well, and he actually turns out to be one of our greatest presidents. However, my opinion matters not, and history is a unforgiving taskmaster.
Good observation. My pluses are “fluffy.” There has not been sufficient time or results to be so definitive, so early – case in point, the pirate affair. If various sources are accurate, POTUS could have done his part better, and I see shades of Gerry Ford’s and Jimmy Carter’s affliction – meddling in tactical military operations. I hold Carter and his henchman, Harold Brown, directly accountable for the deaths of those warriors in Operation EAGLE CLAW; what they did was reprehensible, and got good men killed.
[M]y friend, Barack may “ah” a little too much during extemporaneous speaking, but at least he understands the English language, possesses a decent vocabulary, and pronounces the words correctly. I don’t care whether he uses a teleprompter; in fact, as I’ve written, I’m glad he does. I would much rather have POTUS speak clearly and precisely, rather than being a laughing stock.
I think our “minuses” are the same or similar, just packages in different words. I share your “minuses” precisely. Also, we agree on the unions & auto industry, but I am not so dissatisfied with his appointments; and, I still think the “wealth redistribution” as being over-played.
If you are correct, regarding his floating on the breeze of public opinion, we shall know soon enough. I hope you will give me intellectual credit for surpassing the Press affection for BHO; I think I am a little more insightful and contemplative than that. I think he will prove himself far better than a “pretty Carter.” Time will tell whether I have been too amenable, or not insightful enough.
“That’s just my opinion, but I could be wrong.”
. . . round two:
“Well said and concur.
“Again, truly, truly hope you are right across the board. Additionally, I'm neither so blatantly pessimistic, nor confident in my own anecdotal observations and opinions that I discount that possibility. At least not yet.
“We’ll have to agree to disagree on the relative image issue. Give me tough sincerity any day over slick spin-doctored salesmanship; regardless of how well it’s ‘delivered’. President Bush may not have been a great public orator, but I doubt seriously if either you or I know the English Language any better. Perception is King and once (or if) the media gets off its Messiah kick with Obama, we'll find out how he holds up under relentless negative scrutiny. At any rate, that’s a ways down my measures of effectiveness list during a time when Western Civilization may in fact be hanging in the balance.
“As you say, we'll know soon enough - if the media ever starts doing its job again. In the mean time, I really am pulling for you.”
. . . my round two reply:
Then, agree to disagree it is. There were very few times that I did not cringe when W was speaking; he always conveyed an awkwardness at the podium. And, we shall disagree on W’s command of the English language – at least in public rhetoric. Yet, I usually agreed with his message. He has always been a staunch supporter for our soldiers and the military, and most importantly, he knew his place in the national command structure. And, as much as I admired and despised Rummie, he was head & shoulders over Harold “let them vote with their feet” Brown.
You are of course quite right. We will see how he holds up under relentless negative scrutiny; it will come in time.

Another contribution:
“Not to be cynical, but the federal prosecutor dropping the charges against the AIPAC people comes just before the annual AIPAC convention. The Bureau agents on the case were very unhappy.”
My response:
I didn’t know that part. Does look mighty fishy, kinda like the U.S. attorney fiasco in the last administration. If I had been an agent and some U.S. attorney pulled the rug out from underneath me, I would be none too happy either. There is much more to the AIPAC story than we’ve been told.
An on-line comment from the Blog:
“I'll leave most of this alone, but I can't help celebrating the Gant decision. Searching people’s cars without a clear reason was clearly an unreasonable search in my reading.”
. . . my reply:
No need to leave anything alone. Comment as your opinions go.
We agree on the Gant decision. As in the Gant case, so many of these searches turn up drugs, which should not be a crime.
Thank you for your comment. Keep ‘em comin’.

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

Update no.385

Update from the Heartland
No.385
27.4.09 – 3.5.09
Blog version: http://heartlandupdate.blogspot.com/

To all,
Jeanne and I watched Clint Eastwood’s movie “The Changeling,” starring Angelina Jolie – the true story (rendered for the screen by Eastwood) of Christine I. Collins (née Dunne) and her son, Walter. I strongly recommend this cinematic performance. Let it suffice to say, the movie represents why I care so much about all the rights of each and every citizen.

The follow-up news items:
-- The bombshell this week . . . Senator Arlen Specter of Pennsylvania [189, et al] switched from the Republican to the Democratic party, giving the Democrats a potential 60th vote for a filibuster-proof Senate (once Franken of Minnesota [369] is seated). The President and Vice President held a White House event to recognize the change.
-- The UN World Health Organization (WHO) raised the pandemic threat level for the 2009H1N1 influenza (AKA swine flu) [384] from Level 4 to Level 5, which means multinational pandemic may be eminent. We also had our first fatality inside the United States from the current infectious event – a 2-year-old boy in Texas, who happened to be the son of Mexican nationals “visiting” relatives. Toward the end of the week, public health experts began to back off the quick racket-up of awareness and measures, as they learned more about the virus. Data began to show that the virus was not as virulent as initially suspected and appeared to hit the young significantly worse than older folks. We still need to be vigilant.
-- This seems to be the week to detonations. U.S. Supreme Court Associate Justice David H. Souter [224, et al] submitted his letter of resignation for retirement from the bench. Souter was nominated by President George H.W. Bush (41), confirmed by the Senate, and took his seat to begin the Fall Term in 1990. So, Obama gets his first Supreme Court nomination. This should be interesting.
-- Federal prosecutors are moving to dismiss espionage-related charges against Steven J. Rosen and Keith Weissman [245, et al], former employees of the American Israel Public Affairs Committee (AIPAC) [229, et al] – a pro-Israel lobby – ending a four-year legal battle. The two had been accused of disclosing classified U.S. defense information to Israel. I would sure like to know what happened on this prosecution.

POTUS held another prime-time press conference on Wednesday – all-in-all a passable, credible performance. He did a little more “ah-ing” than I care for, during the questioning period. The following day, the jabber on talk-radio claimed he had planted, rehearsed questions. I have no direct knowledge, but please allow me to say this about that. Barack Obama handles himself exceptionally well before the Press and public. He presents a strong, calm, confident, thoughtful image to the World. I’m good with that image.

Jeanne and I took a close friend, who happened to be in town for a wedding, to dinner. As is so often the case when conversation moves beyond aviation and the personal, we talked politics, and the topic of our 44th President percolated up. He asked, “Name one thing you like about Obama’s administration?” Unfortunately, at that very moment, I balked on a leaf of salad. He jumped, “See, you can’t.” We all got a good laugh out of it. So, I decided with that question and all this blubbering about the 1st 100 days, I thought I would take a moment to offer up a few of my pluses & minuses, so far
Plus
-- Softer World image (or as Teddy said, “Speak softly, and carry a big stick”)
-- Economic action (a laissez-faire, free market approach just ain’t gonna cut it)
-- Revocation of the Embryonic Stem Cell Research ban
-- Pirate affair (I’ll put this on the positive side for now, but there are dark signs)
-- Public speaking style
Minus
-- The whole torture, interrogation, battlefield combatant issue (no.1 minus in my book)
-- Not confronting the largesse of congressional, pork-barrel spending (a very close 2nd)
-- Using the recession to jam through massive spending on social programs without proper debate
There are others, but this should be sufficient to spark some debate.

Senator Dianne Feinstein of California, chairman of the Senate Intelligence Committee, wants to hold public hearings into the CIA battlefield combatant interrogations. Judging from the Senate’s ability to handle sensitive intelligence issues during the Church Committee hearings in the late 70’s, along with the resultant legislation to “correct” abuses by the FBI, CIA, NSA and others, I am not persuaded. Further, based on your ability, Senator Feinstein, to keep intelligence means & methods secret, I will say further, no thank you . . . keep your pea-pickin’ hands out of public debate regarding intelligence operations and policy. The public, or more precisely our enemies, do NOT need to know anything about how the national security intelligence apparatus operates. I want to live a long time (more), so that I can see TOP SECRET intelligence from this era and hopefully rejoice at how effective they were. We have seen far too much national security material showing up in the Press and the public domain. Just in case anyone may have forgotten, we are at war!

On Monday, 27.April, between 10:00 and 10:30 EDT, one of the U.S. Air Force’s, modified, Boeing 747 airplanes, used to transport the President of the United States and his entourage, made a few circuits around the Statute of Liberty on a photographic mission. The airplane, in Air Force 1 livery, flew at low speed, and relatively low altitude around the monument, with two F-16 fighters tailing the B747. Regrettably, the public had not been informed and reacted adversely, creating quite the public furor. Some Update forum comments are offered below.

The debate over the 4th Amendment’s protections against unreasonable search and seizure continues to this day in our family, and began long before our youngest son became a deputy sheriff, but more personal, now. The latest test before the Supreme Court was Arizona v. Gant [555 U.S. ___ (2009); no. 07-542]. The case dealt with the police arrest of Rodney Gant for driving with a suspended license. The police (plural) handcuffed him and locked him in the back of a patrol car, and then searched his car, in which they found a packet of cocaine. He was tried and sentenced for possession of a controlled substance. The police conducted their search in accordance with New York v. Belton, [453 U.S. 454 (1981)] – the standard until the Gant case. Justice Stevens, writing for the majority and the Court, observed, “A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment--the concern about giving police officers unbridled discretion to rummage at will among a person's private effects.” The so-called Belton rule enabled the unilateral decision by a police officer to search a citizen’s automobile, if he arrested the driver or anyone else . . . an extension of the understandable pat-down of an arrestee’s person for weapons or other contraband, to ensure police safety. Stevens also noted, “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Even Justice Scalia, who usually sides with the Federalists, wrote a concurring opinion, in which he said, “I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by Justice Stevens. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches – which is the greater evil. I therefore join the opinion of the Court.” Despite the important constitutional issue at hand in this case, the majority of the Court’s intellectual debate focused on the judicial principle of stare decisis – to stand by things settled. The debate was quite intriguing. And, in the stare decisis portion of this case, I agree with Justice Alito writing for the dissent; justification for abandonment of precedent was not shown. Nonetheless, it seems somewhat odd that these justices spent so much effort arguing the principle of stare decisis, and missed the fundamental governance principle of checks and balances, that the 4th Amendment’s “search and seizure” protections demand – a judicial warrant for the executive to violate a citizen’s fundamental right to privacy. I am dumbstruck, or as our British cousins say, gobsmacked, that Justice Alito went to such extraordinary length to preserve stare decisis and defend the Belton ruling that he apparently lost track of the most salient sentence in the entire Gant decision – “The doctrine of stare decisis does not require us to approve routine constitutional violations” (Justice Stevens, for the Court). Beyond the legal elements of Gant, I must ask, what was the purpose of the warrantless, “contemporaneous” search of Gant’s vehicle? As the Court noted, it surely wasn’t the safety of the police officer(s). The arrestees were handcuffed and secured in the back of several patrol cars. Also, as the Court noted, he was arrested for driving with a suspended license; so, what was the further evidence of the crime they may have been looking for? Fortunately for all of us, the Court moved back from their broad Belton ruling and Executive powers, to find in favor of the individual citizen.

As is often the case at this time of year, we are treated to a flurry of Supreme Court decisions. I manage to read only a few . . . usually those that have some triggers, attracting my attention . . . like privacy, citizens’ rights, war, et cetera. One of those that crossed the threshold was titled: Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi [555 U.S. ___ (2009); no. 07-615]. The salient clue was Iran. I won’t bore y’all with this one – an international contract dispute. Dariush Elahi won a wrongful death judgment against the IRI for the assassination of his brother, Cyrus, and sought to attach assets/funds toward the court’s prior judgment in his favor against the IRI, in a dispute between the IRI and U.S. Bottom line: the Supremes decided the future interests of the United States exceeded Elahi’s civil suit compensation judgment. For the record and to close this item, I think Justice Kennedy’s dissent was far more compelling and correct. C’est la vie.

Another long-time friend and Update contributor asked me to comment on the Supreme Court’s recent decision in the case of FCC v. Fox Television [555 U.S. ___ (2009); no. 07-582], so here it is. The Court’s ruling dealt with the processes and procedures of the Federal Communications Commission (FCC) in accordance with the Administrative Procedure Act, [PL 79-404; 5 U.S.C. §551], and specifically avoided the obvious 1st Amendment question. The case stems from two incidents of expletive utterances on Fox Television Stations, Inc. live broadcasts: one by Cher Bono (2002 Billboard Music Awards), and the other by Nicole Richie (2003 Billboard Music Awards), in violation of 18 U.S.C. §1464 [Crimes and Criminal Procedure (PL 80-772)], which states: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” The Court sustained the FCC’s action against Fox and explicitly avoided the 1st Amendment question. Justice Scalia, writing for the majority and the opinion of the Court, wrote, “The Commission had adduced no quantifiable measure of the harm caused by the language in Pacifica, and we nonetheless held that the ‘government’s interest in the ‘well-being of its youth’ ... justified the regulation of otherwise protected expression.” {quoting from FCC v. Pacifica Foundation [438 U.S. 726 (1978)]} [347] – the case grew from the Tuesday, 30.October.1973, broadcast of George Carlin’s “Filthy Words” comedy routine. Concurring in the Court’s decision, Justice Thomas wrote, “Red Lion and Pacifica were unconvincing when they were issued (1969 & 1978, respectively), and the passage of time has only increased doubt regarding their continued validity. ‘The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so’ in these cases.” Thomas and others justices clearly signaled their willingness to decide the constitutionality of the obscenity statute (18 U.S.C. §1464), when raised. Justice Ginsburg wrote in dissent, “I write separately only to note that there is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today's decision does nothing to diminish that shadow.” She went on to conclude, “In dissent, Justice Brennan [in Pacifica] observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many ‘in our land of cultural pluralism.’ That comment, fitting in the 1970's, is even more potent today. If the reserved constitutional question reaches this Court, we should be mindful that words unpalatable to some may be ‘commonplace’ for others, ‘the stuff of everyday conversations.’ (quoting Pacifica)” The Court did what it had to do in FCC v. Fox, interpreted the law as it exists, and they chose to avoid the freedom of speech constraint represented in the 60-year-old law that should have never been passed. The law is one aspect of this discussion, yet, I cannot resist the opportunity to voice my opinion on such questions. First, the law is the law and can be interpreted as we see in the FCC v. Fox ruling. The government made the law. The imposition on a citizen’s freedom was not sufficient to exceed the government’s power. Therefore, the FCC retained its power to constrain public speech. Censorship is rarely a good choice. Freedom is freedom, and censorship of speech is just another sliver of freedom carved away. Like so many of the morality laws, the 18 U.S.C. §1464 obscenity law is just such a constraint, and a definition of the lowest common denominator. The moral projectionists love to use children to substantiate their claims, a holdover of Victorian-era prudishness and a misguided need to “protect” the innocent-ness of our children and the “purity” of our women (possessive intended). Let’s grow up folks. These are just words, and in the FCC v. Fox case, fleeting, spontaneous utterances. The words are in common use. I was taught quite a few years ago that there are many words by which to express ourselves; the choice of profanity simply confirms inarticulate rhetoric or babble meant to shock. In this debate, I return to the parents. When are parents going to take responsibility for their children’s education, rather than expecting the law to do it for them? When are we going to stop using the law to do what we should be doing as parents? These morality laws must be repealed and eliminated. We must get government out of our private lives.

News from the economic front:
-- The Wall Street Journal reported that former Merrill Lynch CEO John Thain [365, et al] has apparently undertaken a campaign to restore his sullied reputation. He claimed that Bank of America executives lied about their role in the giant bonuses and losses at Merrill Lynch that cost the ML executive his job last January. Thain said, “Getting fired is one thing. But, nobody has the right to say things that they know aren't true.”
-- Five officers for real estate developer, Metro Dream Homes of Laurel, Maryland, were charged with fraud in yet another Ponzi scheme – this one estimated at US$70M. The individuals charged were:
Andrew Hamilton Williams Jr., 58, company founder of Hollywood, Florida.;
Isaac Jerome Smith, 46, president of Spotsylvania, Virginia;
Michael Anthony Hickson, 46, financial officer of Commack, New York;
Alvita Karen Gunn, 31, vice president of Hanover, Maryland; and
Carole Nelson, 50, of Washington, DC.
--The FBI arrested California money manager Danny Pang [383], after the SEC charged him with fraud, froze his assets, and ordered him to repatriate assets he sent overseas. It looks like Danny will join a rogue’s gallery of scallywags who contributed to the current financial crisis.
-- The Guardia di Finanza in Milan, the financial police of Italy, seized about US$300M in assets of various officers of four global banks – JPMorgan Chase, Deutsche Bank, UBS and Depfa – including real estate properties, bank accounts and stock holdings. The officials have been accused of fraud in municipal bond investigations spreading to Europe from the United States. Alfredo Robledo, the Milan prosecutor, is accusing the banks of making US$130M in illicit profits over the handling of municipal bonds.
-- In the progressive fall-out from the government’s bank stress tests, regulators have told Bank of America and Citigroup that the banks may need to raise more capital, presumably as reserves against potential future losses.
-- The S&P/Case-Shiller home-price indexes continued their 16-month string of record declines in February. Ten of the 20 metro areas reported record year-over-year declines.
-- Talks between the Treasury Department and lenders aimed at keeping Chrysler out of bankruptcy broke down late Wednesday. The company initiated legal action for Chapter 11 protection on Thursday. In a mid-day announcement, President Obama said the Chrysler bankruptcy process will be “quick” and will not disrupt Chrysler operations. He also announced that GMAC has agreed to finance Chrysler sales.
-- The Commerce Department reported Gross Domestic Product (GDP), which measures total goods and services output, dropped at a 6.1% annual rate in the 1st Quarter, after shrinking 6.3 % in the 4th Quarter – a steeper-than-expected rate, made worse by sharp declines in exports and business inventories.
-- The Federal Reserve Open Market Committee (OMC) voted unanimously to keep the target federal funds rate for inter-bank lending in a range near zero, where it has been since December. The OMC also signaled they might increase the size of programs to buy mortgage-related and Treasury securities to ease the economy’s path out of recession.
-- The Bank of America Board of Directors removed Kenneth D. Lewis [375] as chairman, while allowing him to remain president and chief executive – probably a signal to Ken. Walter E. Massey will succeed Lewis as chairman.
-- The Wall Street Journal reported that Ford Motor Company, U.S. sales dropped 32% drop in April, but outsold Toyota for the first time in at least a year. GM sales fell 33% last month, but the auto maker noted that shipments were up significantly from March.
-- The Federal Deposit Insurance Corporation (FDIC) closed Silverton Bank in Atlanta on Friday – not the first and probably not the last bank failure, before this is over. The FDIC estimated the cost of this latest failure at about US$1.3B.
-- Berkshire Hathaway reported operating earnings of US$1.7B for the 1st Quarter, down from US$1.9B a year ago. Berkshire’s book value per share fell 6% for the quarter, on losses in its investing portfolio and on credit default swaps. Chairman Warren Buffett also gave a vote of confidence to the government’s economic recovery efforts.

A comment from a contributor, from a different forum:
“In my very humble opinion, in releasing these Bush administration documents on the CIA interrogation program and suggesting former Administration officials may be prosecuted, Obama has now committed the single most obviously impeachable act I have ever witnessed by a sitting US President. The damage to our intelligence network and our National Security is immediate, immeasurable and irrevocable, for (among other things) all the obvious reasons these documents were classified in the first place.
“Considering that I’ve been alive (and more or less sentient) throughout the Kennedy, Johnson, Nixon, Carter, Clinton (and Bush) Administrations, that’s quite an assertion. And for what did he do this? Popularity, politics and subterfuge. The best defense is a good offense. Keep the media and your own supporters (that may be redundant in this case) focused somewhere – anywhere – else, other than your own mistakes, missteps and inability to actually do anything about the economy – which is imminently more important to his popularity than any nebulous future national security concerns.
“So much for ‘governing from the middle’ and uniting America. If allowed to continue to its logical conclusion – the one the Left adamantly wants – a ‘show-trial’ (or many, many of them), this will make the political schism Gore initiated with his change of heart recount in 2000 look like child’s play. It’s a good thing Obama’s hero is Lincoln. He may end up presiding over a similarly ‘divided Nation [that] cannot stand,’ and he’ll likely need more help than he’ll get from anyone on his current team. Civil wars have been fought over less. Of course that could never happen in America…woops.
“He has already flip-flopped once on this issue (of prosecuting former administration officials). Maybe he’ll do it again. God bless opinion polls. Or, maybe we’ll get ‘lucky’ and somebody will wake him up like Iran did Carter. I just hope no one I know is near that (ticking) alarm clock.”

Comments and contributions from Update no.384:
“When pandering to his UAW union base, President Obama has revealed the morally corrupt level to which he is willing to stoop. A morally corrupt President panders to the UAW at the expense of everyone else.”
My reply:
Just as there were citizens levying the same epithet at President Bush, now the other end of the spectrum is doing the same at President Obama. I did not agree with many of the things President Bush did, and I do not agree with many of the things President Obama is doing. However, I shall still give the President the benefit of the doubt, just as I did with his predecessor. He is doing what he thinks is best for the Nation. I do not believe Barack is “morally corrupt” any more than we might accuse George of being morally corrupt. Let us debate specific issues rather than spew generalized labels that accomplish nothing. One of many beautiful elements of this Grand Republic . . . we can agree to disagree.

Another contribution:
“From what I have heard and read via the media, it appears that common sense has become a thing of the past, and responsibility along with the first amendment, is virtually non-existent. I will only mention a few that bring me to that conclusion, and I sure all your readers can come up with many more examples.
“The photo ops over New York City - Apart from authorizing such insensitive stupidity, it is my hope that the person or persons that thought up this lunacy and recorded it will be subject to more than just being fired. Was 9/11 so long ago that it slipped someone’s feeble mind???
“As for appeasing the ultra left at the expense of National Security. The only thing that consoles me is knowing that if any of those bleeding heart liberals had a brain they would indeed be dangerous. Obviously these people do not understand or can’t distinguish the difference between a Freedom Fighter & a Terrorist. Apparently I was wrong in thinking that the philosophy of ‘believe as I do or die’ had been stamped out many years ago. I wonder how these people would react if this great country were taken over by some of the evil people they appear to admire. I hope we will never have a chance to find out.
“I hear about to much ‘loose lipped gum-flapping’ and not enough loyalty to a country that offers so much and so much is taken for granted.
“As I mentioned, these are but a few that are added to the things that go along with the other very important problems that hopefully we can find solutions for soon.”
My response:
I’m not so critical of the USAF photo mission near New York City. I’ve watched the same video clips everyone has, and I’m dumfounded why or how anyone could assume they were under attack. The B747 was clearly painted in Air Force One (AF1) livery, with one F-16 on its wing and another fighter nearby. Yet, clearly, there was a major communications breakdown in the light of the insensitivity everyone refers to in this episode. There are a number of factors not mentioned in the Press. Photo missions like that one are often combined with other mission tasks. Movement of AF1 is always a sensitive activity, which makes public notifications difficult. I will concede that in this instance public notification a day in advance would have been appropriate. Unfortunately, I suspect a number of good people will pay the price for public outrage.
Very good point regarding the Left & the War. I don’t know if the uber-Left admires evil men; I suspect they either want to believe all people are inherently good and simply misunderstood, or they are just naïve about human nature.
Spot on . . . “loose lipped.”
Yes, I am certain readers of the Update can add more examples of Press irresponsibility. I have my say every week. I’ll leave the additions to others.
. . . a follow-up comment:
“I apologize if I gave the impression that I objected to the mission of Air Force One, itself. Even though frankly I fail to understand the purpose of ‘Photo Op’ - period, especially at this location. I do not believe that notification of A F 1's activity or destination should at any time be made public knowledge. My opinion rests solely with the location selected for this type of activity, which was insensitive, and extremely poor judgment. Whether the plane was clearly marked was immaterial. Even if it was recognized ( which I doubt ), the fact that it had 2 fighter planes in close proximity added to the feeling of imminent attack on a population that not so long ago had witnessed an unbelievable horror. I disagree with your thinking that a few ‘good’ men will pay the price for public outrage. Who ever planned this may have book learning and possibly experience, but lacks commonsense which is an important ingredient of ‘good’ leadership, and should pay the price - heavily.”
. . . and my follow-up response:
I do not have a problem with the photo mission; they happen all the time – part of public face of the military. What happened here was a failure of communications. I am fairly certain all the correct people knew of the photo mission, but for reasons we know not, the people who knew, failed to craft an appropriate public announcement for the Press to pass along to the public. I suspect that failure occurred within FAA and/or the NYC government. I’ll leave it at that.

A contribution from another contributor:
“We have no enemies outside our country, only potential buyers of our debt and those who had wished to be our friends but for George H. W. Bush.
“I hope they treat the enemies within our country: veterans, NRA members, Christians, Jews, and ultra-conservatives with kindness in the months to come.”
My reply:
Your contribution seems a bit more cynical than necessary, but . . .
Yes, we are in a serious economic situation, trying to balance of sufficient debt against the collateral damage created by foolish citizens and Wall Street swindlers all too eager to take advantage of all those foolish citizens . . . but “enemies?”
Also, we surely have enemies of the violent kind external to this Grand Republic. We cannot ignore them, as we struggle with the economic battle.
“That’s just my opinion, but I could be wrong.”
. . . a follow-up comment:
“Maybe a little too cynical but with the Homeland Security suggesting veterans, gun owners, and many others as ‘persons of suspicion,’ with the Gov. owning many banks and the most of the automakers, with the Gov. and unions now running the companies, and with the term ‘terrorists’ no longer politically correct, with several industrialized countries laughing at our ‘global warming economic destruction plans’ and refusing to buy into it, a little cynicism doesn't seem too out of place.
“Oh, by the way, I lost 48.7% of my retirement [account] this month and The Great One says that I will have to pay more for my electricity, gas, and water to reduce global warming (which is NOT manmade) and to bring this nasty country more in line with the have-not’s of the world. AND I see no one in Gov. raising their voice to object.”
. . . and my follow-up reply:
I surmise your market loss is like ours – a paper loss, so far. It only becomes a hard loss when we sell. It is a worry for all of us, especially those of us at our age. But, I believe the market will recover, as it has always done. The jury will remain out for many more months before we begin to see if the government’s actions have helped. We shall remain vigilant.
I heard Secretary Napolitano’s comment. Personally, I think those comments have been taken out of context and exaggerated. I also think the Obama administration’s foolish notion of pretend we are not at war with Islamic fascism is misguided and potentially injurious. But, he is POTUS. He will bear responsibility and accountability for his decisions.

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