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 :-)