Update from the Heartland
No.397
20.7.09 – 26.7.09
Blog version: http://heartlandupdate.blogspot.com/
No.397
20.7.09 – 26.7.09
Blog version: http://heartlandupdate.blogspot.com/
To all,
President Obama held yet another prime time news conference as took his case to We, the People, as he tried to make the argument for health care reform along with that reform as part of the economic recovery process. We can disagree with his policies, processes, or the clothes he wears, but we must give him credit for an extraordinary effort. John F. Kennedy wrote of Winston Churchill’s premiership, “He mobilized the English language and sent it into battle.” Words were Churchill’s and Roosevelt’ primary tool to encourage, shape and hold the support and focus of their people in wartime. Someone observed that Obama has held more news conferences in six months than Bush held in eight years. I do not know if the observation is correct, regardless, words are the President’s most powerful means to influence We, the People, and I am thankful he is comfortable with public words. Despite the President’s pressure, the day after the news conference, Senate Majority Leader Reid announced his colleagues would not vote on the health care reform bill until after the August recess. I recognize that we must do something; yet, I remain troubled by all this talk about universal coverage and government involvement. As with the potential, future, collapse of Social Security, almost any action will be better than inaction. The status quo is simply not sustainable. Nonetheless, the President’s public statement and answers were completely and thoroughly overshadowed and dominated by one, very poor, single, word choice -- “stupidly.” The President used that word to describe the actions of the Cambridge [Massachusetts] Police Department regarding the arrest of Harvard Professor Henry Louis “Skip” Gates, Jr., during an investigation of a potential burglary in progress call from a neighbor. As a leader, he has no right to voice his opinion in a public forum. He is the leader of all Americans, not just some chosen subset, and especially not just his friends. He may not have liked what happened to his buddy “Skip” Gates, but by his own admission, he did not have all the facts, thus rendering his foolish comment quite inappropriate. This incident became yet another protest for the sins of the past. An elitist, Ivy League, intelligentsia, sanctimonious professor decided he wanted to make an example of a lowly, uneducated, police officer with less skin pigmentation than him. Bill Maher can call Sergeant James Crowley’s actions stupid. The President of the United States cannot . . . he simply must not voice his personal opinion on such matters in any public forum.
Another opinion, this time from a renown lawyer:
“Gay Marriage and the Constitution – Why Ted Olson and I are working to overturn California’s Proposition 8”
by David Boies
Wall Street Journal
Published: July 20, 2009
http://online.wsj.com/article/SB124804515860263587.html#mod=djemEditorialPage
Boies and his brother-in-the-law, former Solicitor General of the United States Ted Olson have initiated legal action to overturn California’s Proposition 8. David wrote, “[Ted and I] acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution’s guarantee of equal protection and due process to all citizens.” Boies concluded, “The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.” His argument is sound, reasonable and appropriate, if only others would listen. To the point, regardless of whether homosexuality (or rather anything other than exclusive heterosexuality) is a genetic / hereditary trait, or entirely and solely a matter of personal, conscious, hedonist choice, there is no public necessity for continued imposition of such foolish prohibitions on free, productive citizens. We ALL must enjoy equal protection under the law, or none of us do.
The Senate voted 58-40-0-2(0) to delete financing for seven more Air Force F-22 warplanes from next year’s defense spending bill. The President repeatedly threatened to veto the US$680B bill, if it included any money for the planes. My only reason for noting an on-going congressional action is the Press reference, which constantly reports that the Pentagon does not want the additional airplanes. I feel fairly safe in saying I highly doubt the U.S. Air Force did not want the additional fighters. Secretary Gates, and undoubtedly the President, sees the F-22 as not applicable to the current war, or war environment. If the funding removal is sustained until the bill becomes law, it will essentially end F-22 production.
Another Senate vote [39-58-0-3(0)] rejected Amendment no.1618 (the so-called Thune Amendment, named for Senator John Randolph Thune of South Dakota) to S.1390 (the annual Defense Appropriations bill), with its purpose “to amend chapter 44 of title 18, United States Code, to allow citizens who have concealed carry permits from the State in which they reside to carry concealed firearms in another State that grants concealed carry permits, if the individual complies with the laws of the State” – a valiant attempt, but no joy.
Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty wrote a 37-page memorandum titled, “Authority for Use of Military Force to Combat Terrorist Activities within the United States,” dated 23.October.2001, for then Counsel to the President Alberto Gonzales and Department of Defense General Counsel William James “Jim” Haynes, II, to define legal constraints regarding the deployment of Federal military resources within this Grand Republic in response to a major terrorist event. On Friday, the New York Times reported that the Bush administration considered testing the counsel offered by Yoo & Haynes for the capture of a group of amateur Islamists in the suburbs of Buffalo (New York) that became known as the Lackawanna Six. The deployment of military assets for the mission would have been a direct test of the Authorization for Use of Military Force [PL 107-40, 115 Stat. 224 (2001)] and the Posse Comitatus Act [PL 45-263; 20 Stat. 145 (1878); 18 U.S.C. §1385 (1994)]. Ultimately, President Bush decided against the test. My curiosity focuses far more on the motives of the Times than the Bush administration in this instance.
Another intriguing decision in the recent batch from the Supremes involves the 15th Amendment and the Voting Rights Act of 1965 (VRA) [PL 89-110, 42 U.S.C. §1973] – Northwest Austin Municipal Utility District no.1 v. Holder [557 U.S. ___ (2009); no. 08-322]. The choice of this case reflects an odd circumstance. The small utility district sought to amend its voting procedures. Since the utility district is in Texas, and Texas is a designated state / jurisdiction under VRA, the utility district was required by §5 of VRA to seek pre-clearance for any election change from a Federal court in Washington, DC; however, the utility district sought relief under the “bailout” provision in §4(a) of the VRA. The district court and appeals court both denied the “bailout” request. The Court attached significance to the extension of the VRA by Congress for another 25 years, via the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 [PL 109-246]. The Supremes voted 8-1 to reverse the lower courts, declaring their decisions were not consistent with contemporary facts, but stopping short of declaring the §5 requirement unconstitutional. Chief Justice Roberts, writing for the Court, noted, “The Government’s contrary interpretation [of §§4(a) & 5 of the VRA] has helped to render the bailout provision all but a nullity. Since 1982, only 17 jurisdictions – out of the more than 12,000 covered political subdivisions – have successfully bailed out of the Act.” Roberts went on to note, “In part due to the success of [the VRA], we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements.” The consequences for other citizens in more vulnerable jurisdictions cannot be clearly predicted; however, the Northwest Austin ruling is a step back from the landmark VRA, civil rights law. The lone dissenting vote was not a full on dissent, yet important in content. Associate Justice Clarence Thomas, concurring in part, dissenting in part, offered a far more interesting view of the subject of voting rights. Couple the Northwest Austin decision with other recent civil rights rulings, namely Ricci v. DeStefano [557 U.S. ___ (2009); no. 07-1428] [395] and Horne v. Flores [557 U.S. ___ (2009); No. 08-289] [396]. Clarence argued that the Court had not gone far enough in rolling back the constraints of the Voting Rights Act. Thomas concluded, “In 1870, the Fifteenth Amendment was ratified in order to guarantee that no citizen would be denied the right to vote based on race, color, or previous condition of servitude. Congress passed §5 of the VRA in 1965 because that promise had remained unfulfilled for far too long. But now – more than 40 years later – the violence, intimidation, and subterfuge that led Congress to pass §5 and this Court to uphold it no longer remains. An acknowledgment of §5’s unconstitutionality represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.” This case has been largely overlooked in the Press, amid the hub-bub of war, recession, and the debate over socialism; yet, the significance of this case may well be far greater than we can imagine. Time shall tell the tale.
An intriguing challenge:
“Weird cases: who's the Daddy?”
by Gary Slapper
The Times [of London]
July 17, 2009
http://timesonline-emails.co.uk/go.asp?/bTNL001/mHFIE3B/qHX9N3B/uNSC46/xHWPE3B
Slapper illuminated several rather unusual paternity cases and raised an important societal question. As more and more citizens move out from traditional, Christian-religion-defined, marital union, i.e., adult, heterosexual, monogamous, procreation-only marriage, the issue of paternity increases in importance. One of the cases noted by Slapper involves a Missouri woman who became pregnant after having sex with two, identical twin brothers, separately, on the same day. The social conservatives among us can easily, appropriately and effectively argue . . . “see” . . . anything other than traditional marriage creates far too many societal problems and will not work. There is validity to the argument. However, I cannot overcome the inherent conflict with a citizen’s fundamental right to privacy and their freedom of choice that enables such relationship anomalies. We must discuss, debate, argue and ultimately find reasonably balanced solutions for the good of our free society.
News from the economic front:
-- New York Attorney General Andrew Cuomo’s office is considering a civil suit against Charles Schwab for its marketing and sales of auction-rate securities to clients.
-- The California legislature reportedly reached a solution to the state’s massive US$26B budget gap. Perhaps the troubled state can find some semblance of fiscal stability. Again, time shall tell the tale.
-- The Wall Street Journal reported that Germany’s Deutsche Bank has dismissed two top executives following an internal investigation into surveillance of the board and employees. Also, prosecutors in Frankfurt have opened a preliminary inquiry into whether the bank may have violated various civil and criminal, privacy laws.
-- Federal Reserve Chairman Bernanke warned Congress that pending legislation to subject the Fed to greater oversight by the Government Accountability Office could jeopardize the central bank’s independence to rapidly deal with economic conditions. He also indicated that the economy remains too weak to start tightening monetary policy and offered a view of the toolkit the central bank could employ to unwind its crisis measures.
-- Morgan Stanley’s 2nd Quarter net income plunged 87%, as the bank repaid US$10B in TARP funds amid continued market weakness.
-- Wells Fargo’s 2nd Quarter earnings rose 81%, hitting a new company record, despite the bank’s acquisition of Wachovia, while credit-loss provisions rose 69% from a year ago.
-- Ford Motor Company reported a net income of US$2.3B, or $0.69 a share, compared with a loss of US$8.67B, or $3.89 a share, for the same period a year earlier. The company consumed an estimated US$1B in cash during the quarter as it controlled incentive spending around the world – another glimmer of light toward the end of a storm.
-- UPS reported 2nd Quarter profit decreased 49% to US$445M, as revenue fell 17% to US$10.83B . . . at least they are still making money in this recession.
-- American Express reported 2nd Quarter net income down 48% to US$337M, while revenue dropped 18% to US$6.09B, and its loan-loss provisions totaled US$1.6B, compared with US$1.8B, reflecting lower average cardmember receivables and loans. In a company press release, CEO Kenneth I. Chenault said, “Given the cutbacks in discretionary spending among affluent consumers, small businesses and corporations, our overall level of billed business is performing well relative to most of the other major card issuers.” Well, how about that!
-- Investigators from the U.S. attorney’s office in Brooklyn along with the FBI and the SEC are examining whether Corey Ribotsky, 38, a New York, hedge-fund manager, and his firm – US$770M, NIR Group of Roslyn, NY – defrauded investors as the stock market fell amid the credit crisis.
-- UK GDP shrank 0.8% in the 2nd Quarter from the previous quarter, worse than expected. The annual output contraction was 5.6%, the biggest decline since quarterly records began in 1955. The UK economy has now contracted for five straight quarters, with output down 5.7% over that period, a sharper downturn than the recession of the early 1990s, but as yet not as severe as the early 1980s recession.
-- A top Citigroup trader, Andrew J. Hall, who heads Citigroup’s secretive energy-trading unit, Phibro LLC, is pressing the financial giant to honor a 2009 pay package that could total US$100M, setting the stage for a potential showdown between Citigroup and the government’s new pay czar. This test should be interesting.
Comments and contributions from Update no.395:
“It seems like it would be alot less expensive to pay for coverage of the poor and uninsured than to make everyone join the same plan and cover EVERYONE ... I don't know either ... but those of us who are currently covered by employers are doing fine as we are ... why change something that works well for a vast number of people? And if we do cover the poor/uninsured, they should have to show proof of active job searching if they are able to work ... like unemployment … we should not fund health coverage for those who are not working if they are physically and mentally sound enough to work.”
My reply:
As is so often the case, especially with major changes, the politicians, lobbyists and advocates for one side or the other try to create confusion with exaggerated partial facts . . . I believe constructed to intentionally cause confusion, doubt and a fertile environment for grassroots disinformation. I am not aware of any of the legislation before Congress, at least as represented in the Library of Congress database, that even hints at national health care. The variations of the current health plans before the House & Senate seek to provide coverage for the uninsured or under-insured. I do not believe any of the current proposals will change our current coverage, for those of us who still have health care coverage. One of the plans recommends taking health benefits as taxable income as a means to pay for the uninsured folks; needless to say, I’m not too keen on that, as I suspect there will be knock-on effects that have not been considered. I am not impressed with either the House or the Senate plans. Hopefully, some hybrid of the two will be closer to reasonable and realistic. We shall see.
Re: funding for those able to but not working, we seem to get into the question on many related topics like drug and alcohol use, smoking, etc. I am willing to help those who wish to be helped. I am not interested in helping those who do not want to be helped or those who seek to take advantage of our generosity.
We are a long way from health care reform. Further, any workable solution must include the proper regulatory oversight to strongly punish fraud, waste and abuse.
Comments and contributions from Update no.396:
“A most interesting subject Cap. Our joint King was a worse character than our history portrays, although he is roundly blamed for losing what must have been the most important part of our colonies.
“I was most interested in the subject of the right to bear arms. I gather from your comments that you yourself have some sort of hand gun for the defence of your family.
“It’s a different world Cap, very different.
“I note that there is some reference to arming civilian militia, presuming I assume that such a militia would be to wrench power back from a rogue government. Surely an outdated idea now.
“None of our business over here mate just so very different but we respect your laws of course.”
My response:
Re: “our joint King,” i.e., King George III: indeed, so history has recorded. Yet, as with all leaders, much was done in his name, with zealous bureaucrats adding an extra measure of salt to the wounds in his name. Nonetheless, yes, George III shall carry that burden ad infinitum.
Re: guns in America: yes, it is a different world. Further, the United States of America is neither lawless nor “shoot ‘em up” as the Press likes to portray this Grand Republic. I am not so quick to discount an armed civil militia. Sure, the justification for such a body is not what it was in 1788, or even 1888, yet there are still a host of reasons for maintaining such a capability, not least of which might be the aftermath anarchy of a major disaster like an earthquake, hurricane, or such. When law enforcement becomes saturated, civil conditions often deteriorate swiftly – the “Lord of the Flies” scenario, so to speak.
Of course it is your business. We are all part of the world community. We should all be concerned about what goes on in the United States, the United Kingdom, Iraq, Afghanistan, Pakistan, et cetera. We all have a responsibility to ask questions and hopefully engage in proper debate on the issues of our time. I am sure you have noticed that I quote / review British law and current events, where appropriate.
Another contribution:
“AMEN on your comment of the Nogales education situation below ... nothing wrong with teaching English to the Mexican children, but we should not use our tax dollars to provide teachers who hold classes in JUST Spanish !! Spanish AND English OK ... but not JUST Spanish!! They DO need to adjust to an English speaking society. Good example you have made of the Americans in Italy. I'm sure the Italians don't hold solely English taught classes ... except maybe at military bases where the predominant language might be English.”
My reply:
I am an advocate for multi-lingual, multi-cultural societies, and especially our society. However, I am not particularly tolerant of those who resist assimilation and refuse to speak the language, or abide by the laws and customs. I am strongly against printing official government documents like identification papers, election ballots, laws, et cetera, in any language other than English.
A different contribution:
“As an attorney, I don't have much truck with John Yoo. It isn't Bush bashing--in fact, I think that he served the President very poorly. As noted below, even the Bush Administration realized that and has stepped back from Yoo's work. (Below, Bradbury's statement is a very strong rebuff.) In his position, he needed to say what could be done and how one could do it—as well as saying something cannot be done, or cannot be done in a desired manner. He didn't want to say no, so he formulated some bizarre legal theories to buttress his findings. His job was to tell his client what he needed to hear-- not what he wanted to hear.
“The excerpts below are from an article I read in the wake of his recent article. Strong opinions, but on point. Again note that Yoo never mentioned the seminal case in the area, Youngstown Steel. To not mention the main holding case on a position would flunk a law student or bar exam taker. He should have mentioned the case and then distinguished how his position is different. The fact that he didn't meant that he couldn't think of a way to distinguish his brief from Youngstown. It is lawyer-ing 101.”
---------------------------------
[The attached (as yet) unattributed article:]
“Even the Bush administration's Office of Legal Counsel eventually repudiated all of Yoo's opinions (a fact that he somehow omitted in his Journal piece), and the legal community has overwhelmingly rejected his arguments. But to be fair to Yoo, I decided to read not just the newly released memos, but his 2003 torture memo.
“It isn't necessary to spend much time eviscerating Yoo's outrageous Oct. 23 memo authorizing military force, because the Bush administration already did that. In an Oct. 6, 2008, memo, Principal Deputy Attorney General Steven Bradbury disposed of it. ‘We also judge it necessary to point out that the 10/23/01 memo states several propositions that are either incorrect or highly questionable,’ Bradbury writes. Those ‘incorrect or highly questionable’ propositions are pretty much Yoo's entire argument.
“In his Wall Street Journal piece, Yoo attacks his critics for taking his statement that free speech rights can be abrogated in wartime out of context. But nothing in Yoo's Oct. 23 memo, or his other memos, inspires confidence that he would not be prepared come up with tortured legal arguments to abrogate free speech. The case Yoo cites, Near v. Minnesota, was cited by the justices who tried to prevent the release of the Pentagon Papers on ‘national security’ grounds. When one looks at the quality of Yoo’s legal reasoning in the 2003 torture memo, it becomes obvious that no fundamental American right would be safe in his hands.
“In that infamous memo, Yoo legally redefined torture. His arguments for this redefinition are truly remarkable. They are a case study in intellectual bad faith.
“The U.N. Convention Against Torture, to which the U.S. is a signatory, defines torture as the infliction of ‘severe pain.’ The U.N. Convention is implemented in U.S. law (18 U.S.C. 2340). Yoo’s legal task was to find legal grounds to define ‘severe’ in a diminished way. There is nothing on the books to support such a redefinition.
“Yoo came up with one of the most bizarre, illogical and specious arguments in the history of law. He dug up a federal statute that had absolutely nothing to do with the issue he was examining, seized upon a passing reference in that statute to ‘severe pain’ that was not and could not possibly be interpreted to be a definition of that state, and then asserted with a straight face that this reference supported a radical redefinition of ‘severe pain.’ To compound this, he then lied about what the statute actually said.
“In short, he simply made up a torture-friendly definition of ‘severe pain,’ and then found a way to justify it.
“The statute Yoo cited, 42 U.S.C. 1395, regulates insurance benefits under the ‘Medicare and Choice’ plan. It defines an emergency medical condition as one ‘manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layman’ could reasonably expect that without immediate medical treatment, the individual displaying those symptoms would be at serious risk of losing their health, suffering serious impairment to bodily functions, or suffering serious dysfunction of any bodily organ or part. From this bureaucratic definition of ‘emergency medical condition,’ Yoo magically derived a new, torture-friendly definition of ‘severe pain.’
“‘Although these statutes address a substantially different subject from section 2340,’ Yoo blandly notes in a world-class understatement, ‘they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture ‘severe pain’ must rise to a similarly high level -- the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.’
“Not only was Yoo’s argument about torture utterly absurd, he also ignored the single most important ruling about expansive presidential power in foreign affairs, the Supreme Court’s landmark ‘steel seizure’ case. As legal analyst Stephen Gillers wrote, this is like ‘advising a client on school desegregation law and ignoring Brown v. Board of Education.’
“After reading the torture memo, it is simply incontestable that Yoo was either grossly incompetent, or that it was his intention to twist the law to tell the Bush administration what it wanted to hear.”
My reply:
I understand your point regarding Youngstown Sheet & Tube Co. v. Sawyer [343 U.S. 579 (1952); no. 744]. I will certainly concede that Yoo’s paper would have been far more scholarly, if he had mentioned Youngstown and at least discounted the case in application to the topic at hand. We have discussed this before [387]. Youngstown was a domestic separation of powers case, with the “police action” of the Korean War as Truman’s rationale and justification. It was not a warfighting case. If, as you suggest, Yoo avoided Youngstown because he could not find rationale in the shadow of the case, then you have a point, but I just do not see Youngstown as the controlling case. Perhaps you can help me appreciate why you think it is.
You did not have an attribution to the article excerpt you inserted.
The Bradbury memo of 15.January.2009, was hardly a “repudiation;” it was a lame CYA attempt, if I ever saw one. Like so many, Bradbury offers essentially no rationale for “disposing” of the 23.October.2001, Yoo memo; he just says it was wrong, essentially. As you point out with the missing Youngstown reference, that Yoo memo may be imbalanced but hardly wrong. “[N]o fundamental right would be safe in his hands” . . . perhaps, although I do not find the justification for such a statement in Yoo’s words. Do we have reason for concern? Yes, absolutely. I supported the USA PATRIOT Act of 2001 [PL 107-56] when Congress passed it and the President signed it into law. Today, I am giving the Obama administration the benefit of the doubt but expecting the worst. I was truly and deeply disappointed in the Bush administration’s collateral usage of the original law and the Reauthorization Act of 2005 [PL 109-177]. I recognize the necessity for these tools to wage war successfully in the War on Islamic Fascism, but the frail human beings entrusted with wielded such power have proven themselves unworthy. We must find a more balanced means.
We can and should debate the content and rationale of the two Yoo 1.August.2002, torture memos. Of course, “[t]here is nothing on the books to support such a redefinition.” The issue of Enhanced Interrogation Techniques (EIT) for intelligence purposes during wartime has not been addressed in the law . . . to my knowledge. I’ve read Yoo’s rationale. I understand and appreciate the challenge in finding balance between “severe pain,” interrogation inducement, national security, and our fragile sense of propriety.
I am trying not to be in the position of defending Yoo. His memos were laborious, sometimes disjointed, and certainly not balanced, as you have noted and I have agreed; but that does not make his arguments “outrageous,” “bizarre,” or whatnot. I am interested in the defense of this Grand Republic against a determined, amorphous enemy. We will not have a constructive debate on EIT unless we can get passed politics that has inflamed and ensnared this issue. So, I would rather risk trusting the judgment of an intelligence field operative than any damnable politician, and that is a very sad statement. That said, this notion of “severe pain” is a chimeric distraction. To some, “severe pain” is a pin prick on their finger; to others, it is anything short of milk & cookies in front of the TV. EIT within the intelligence collection process is an inducement to provide the information an individual possesses; EIT is the final tool in the kit. Interrogation processes should NOT be a topic of public discussion for one paramount reason – disclosure to our enemies. We have already gone too far.
Bottom line: I do not agree with the writer of the article. Yoo’s motive and performance were not so negatively binary as he portrays. I’ve read (studied) most of those memos, and I simply do not agree with such an extreme assessment. So, if we wish to debate presidential power to wage war successfully or encourage a high level battlefield combatant captive, then let’s get it on; but, let us move passed the political rhetoric. Perhaps, if you wish, we can dissect Yoo’s 1.August.2002 memo, or any one of his products. I’m ready.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
President Obama held yet another prime time news conference as took his case to We, the People, as he tried to make the argument for health care reform along with that reform as part of the economic recovery process. We can disagree with his policies, processes, or the clothes he wears, but we must give him credit for an extraordinary effort. John F. Kennedy wrote of Winston Churchill’s premiership, “He mobilized the English language and sent it into battle.” Words were Churchill’s and Roosevelt’ primary tool to encourage, shape and hold the support and focus of their people in wartime. Someone observed that Obama has held more news conferences in six months than Bush held in eight years. I do not know if the observation is correct, regardless, words are the President’s most powerful means to influence We, the People, and I am thankful he is comfortable with public words. Despite the President’s pressure, the day after the news conference, Senate Majority Leader Reid announced his colleagues would not vote on the health care reform bill until after the August recess. I recognize that we must do something; yet, I remain troubled by all this talk about universal coverage and government involvement. As with the potential, future, collapse of Social Security, almost any action will be better than inaction. The status quo is simply not sustainable. Nonetheless, the President’s public statement and answers were completely and thoroughly overshadowed and dominated by one, very poor, single, word choice -- “stupidly.” The President used that word to describe the actions of the Cambridge [Massachusetts] Police Department regarding the arrest of Harvard Professor Henry Louis “Skip” Gates, Jr., during an investigation of a potential burglary in progress call from a neighbor. As a leader, he has no right to voice his opinion in a public forum. He is the leader of all Americans, not just some chosen subset, and especially not just his friends. He may not have liked what happened to his buddy “Skip” Gates, but by his own admission, he did not have all the facts, thus rendering his foolish comment quite inappropriate. This incident became yet another protest for the sins of the past. An elitist, Ivy League, intelligentsia, sanctimonious professor decided he wanted to make an example of a lowly, uneducated, police officer with less skin pigmentation than him. Bill Maher can call Sergeant James Crowley’s actions stupid. The President of the United States cannot . . . he simply must not voice his personal opinion on such matters in any public forum.
Another opinion, this time from a renown lawyer:
“Gay Marriage and the Constitution – Why Ted Olson and I are working to overturn California’s Proposition 8”
by David Boies
Wall Street Journal
Published: July 20, 2009
http://online.wsj.com/article/SB124804515860263587.html#mod=djemEditorialPage
Boies and his brother-in-the-law, former Solicitor General of the United States Ted Olson have initiated legal action to overturn California’s Proposition 8. David wrote, “[Ted and I] acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution’s guarantee of equal protection and due process to all citizens.” Boies concluded, “The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.” His argument is sound, reasonable and appropriate, if only others would listen. To the point, regardless of whether homosexuality (or rather anything other than exclusive heterosexuality) is a genetic / hereditary trait, or entirely and solely a matter of personal, conscious, hedonist choice, there is no public necessity for continued imposition of such foolish prohibitions on free, productive citizens. We ALL must enjoy equal protection under the law, or none of us do.
The Senate voted 58-40-0-2(0) to delete financing for seven more Air Force F-22 warplanes from next year’s defense spending bill. The President repeatedly threatened to veto the US$680B bill, if it included any money for the planes. My only reason for noting an on-going congressional action is the Press reference, which constantly reports that the Pentagon does not want the additional airplanes. I feel fairly safe in saying I highly doubt the U.S. Air Force did not want the additional fighters. Secretary Gates, and undoubtedly the President, sees the F-22 as not applicable to the current war, or war environment. If the funding removal is sustained until the bill becomes law, it will essentially end F-22 production.
Another Senate vote [39-58-0-3(0)] rejected Amendment no.1618 (the so-called Thune Amendment, named for Senator John Randolph Thune of South Dakota) to S.1390 (the annual Defense Appropriations bill), with its purpose “to amend chapter 44 of title 18, United States Code, to allow citizens who have concealed carry permits from the State in which they reside to carry concealed firearms in another State that grants concealed carry permits, if the individual complies with the laws of the State” – a valiant attempt, but no joy.
Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty wrote a 37-page memorandum titled, “Authority for Use of Military Force to Combat Terrorist Activities within the United States,” dated 23.October.2001, for then Counsel to the President Alberto Gonzales and Department of Defense General Counsel William James “Jim” Haynes, II, to define legal constraints regarding the deployment of Federal military resources within this Grand Republic in response to a major terrorist event. On Friday, the New York Times reported that the Bush administration considered testing the counsel offered by Yoo & Haynes for the capture of a group of amateur Islamists in the suburbs of Buffalo (New York) that became known as the Lackawanna Six. The deployment of military assets for the mission would have been a direct test of the Authorization for Use of Military Force [PL 107-40, 115 Stat. 224 (2001)] and the Posse Comitatus Act [PL 45-263; 20 Stat. 145 (1878); 18 U.S.C. §1385 (1994)]. Ultimately, President Bush decided against the test. My curiosity focuses far more on the motives of the Times than the Bush administration in this instance.
Another intriguing decision in the recent batch from the Supremes involves the 15th Amendment and the Voting Rights Act of 1965 (VRA) [PL 89-110, 42 U.S.C. §1973] – Northwest Austin Municipal Utility District no.1 v. Holder [557 U.S. ___ (2009); no. 08-322]. The choice of this case reflects an odd circumstance. The small utility district sought to amend its voting procedures. Since the utility district is in Texas, and Texas is a designated state / jurisdiction under VRA, the utility district was required by §5 of VRA to seek pre-clearance for any election change from a Federal court in Washington, DC; however, the utility district sought relief under the “bailout” provision in §4(a) of the VRA. The district court and appeals court both denied the “bailout” request. The Court attached significance to the extension of the VRA by Congress for another 25 years, via the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 [PL 109-246]. The Supremes voted 8-1 to reverse the lower courts, declaring their decisions were not consistent with contemporary facts, but stopping short of declaring the §5 requirement unconstitutional. Chief Justice Roberts, writing for the Court, noted, “The Government’s contrary interpretation [of §§4(a) & 5 of the VRA] has helped to render the bailout provision all but a nullity. Since 1982, only 17 jurisdictions – out of the more than 12,000 covered political subdivisions – have successfully bailed out of the Act.” Roberts went on to note, “In part due to the success of [the VRA], we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements.” The consequences for other citizens in more vulnerable jurisdictions cannot be clearly predicted; however, the Northwest Austin ruling is a step back from the landmark VRA, civil rights law. The lone dissenting vote was not a full on dissent, yet important in content. Associate Justice Clarence Thomas, concurring in part, dissenting in part, offered a far more interesting view of the subject of voting rights. Couple the Northwest Austin decision with other recent civil rights rulings, namely Ricci v. DeStefano [557 U.S. ___ (2009); no. 07-1428] [395] and Horne v. Flores [557 U.S. ___ (2009); No. 08-289] [396]. Clarence argued that the Court had not gone far enough in rolling back the constraints of the Voting Rights Act. Thomas concluded, “In 1870, the Fifteenth Amendment was ratified in order to guarantee that no citizen would be denied the right to vote based on race, color, or previous condition of servitude. Congress passed §5 of the VRA in 1965 because that promise had remained unfulfilled for far too long. But now – more than 40 years later – the violence, intimidation, and subterfuge that led Congress to pass §5 and this Court to uphold it no longer remains. An acknowledgment of §5’s unconstitutionality represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.” This case has been largely overlooked in the Press, amid the hub-bub of war, recession, and the debate over socialism; yet, the significance of this case may well be far greater than we can imagine. Time shall tell the tale.
An intriguing challenge:
“Weird cases: who's the Daddy?”
by Gary Slapper
The Times [of London]
July 17, 2009
http://timesonline-emails.co.uk/go.asp?/bTNL001/mHFIE3B/qHX9N3B/uNSC46/xHWPE3B
Slapper illuminated several rather unusual paternity cases and raised an important societal question. As more and more citizens move out from traditional, Christian-religion-defined, marital union, i.e., adult, heterosexual, monogamous, procreation-only marriage, the issue of paternity increases in importance. One of the cases noted by Slapper involves a Missouri woman who became pregnant after having sex with two, identical twin brothers, separately, on the same day. The social conservatives among us can easily, appropriately and effectively argue . . . “see” . . . anything other than traditional marriage creates far too many societal problems and will not work. There is validity to the argument. However, I cannot overcome the inherent conflict with a citizen’s fundamental right to privacy and their freedom of choice that enables such relationship anomalies. We must discuss, debate, argue and ultimately find reasonably balanced solutions for the good of our free society.
News from the economic front:
-- New York Attorney General Andrew Cuomo’s office is considering a civil suit against Charles Schwab for its marketing and sales of auction-rate securities to clients.
-- The California legislature reportedly reached a solution to the state’s massive US$26B budget gap. Perhaps the troubled state can find some semblance of fiscal stability. Again, time shall tell the tale.
-- The Wall Street Journal reported that Germany’s Deutsche Bank has dismissed two top executives following an internal investigation into surveillance of the board and employees. Also, prosecutors in Frankfurt have opened a preliminary inquiry into whether the bank may have violated various civil and criminal, privacy laws.
-- Federal Reserve Chairman Bernanke warned Congress that pending legislation to subject the Fed to greater oversight by the Government Accountability Office could jeopardize the central bank’s independence to rapidly deal with economic conditions. He also indicated that the economy remains too weak to start tightening monetary policy and offered a view of the toolkit the central bank could employ to unwind its crisis measures.
-- Morgan Stanley’s 2nd Quarter net income plunged 87%, as the bank repaid US$10B in TARP funds amid continued market weakness.
-- Wells Fargo’s 2nd Quarter earnings rose 81%, hitting a new company record, despite the bank’s acquisition of Wachovia, while credit-loss provisions rose 69% from a year ago.
-- Ford Motor Company reported a net income of US$2.3B, or $0.69 a share, compared with a loss of US$8.67B, or $3.89 a share, for the same period a year earlier. The company consumed an estimated US$1B in cash during the quarter as it controlled incentive spending around the world – another glimmer of light toward the end of a storm.
-- UPS reported 2nd Quarter profit decreased 49% to US$445M, as revenue fell 17% to US$10.83B . . . at least they are still making money in this recession.
-- American Express reported 2nd Quarter net income down 48% to US$337M, while revenue dropped 18% to US$6.09B, and its loan-loss provisions totaled US$1.6B, compared with US$1.8B, reflecting lower average cardmember receivables and loans. In a company press release, CEO Kenneth I. Chenault said, “Given the cutbacks in discretionary spending among affluent consumers, small businesses and corporations, our overall level of billed business is performing well relative to most of the other major card issuers.” Well, how about that!
-- Investigators from the U.S. attorney’s office in Brooklyn along with the FBI and the SEC are examining whether Corey Ribotsky, 38, a New York, hedge-fund manager, and his firm – US$770M, NIR Group of Roslyn, NY – defrauded investors as the stock market fell amid the credit crisis.
-- UK GDP shrank 0.8% in the 2nd Quarter from the previous quarter, worse than expected. The annual output contraction was 5.6%, the biggest decline since quarterly records began in 1955. The UK economy has now contracted for five straight quarters, with output down 5.7% over that period, a sharper downturn than the recession of the early 1990s, but as yet not as severe as the early 1980s recession.
-- A top Citigroup trader, Andrew J. Hall, who heads Citigroup’s secretive energy-trading unit, Phibro LLC, is pressing the financial giant to honor a 2009 pay package that could total US$100M, setting the stage for a potential showdown between Citigroup and the government’s new pay czar. This test should be interesting.
Comments and contributions from Update no.395:
“It seems like it would be alot less expensive to pay for coverage of the poor and uninsured than to make everyone join the same plan and cover EVERYONE ... I don't know either ... but those of us who are currently covered by employers are doing fine as we are ... why change something that works well for a vast number of people? And if we do cover the poor/uninsured, they should have to show proof of active job searching if they are able to work ... like unemployment … we should not fund health coverage for those who are not working if they are physically and mentally sound enough to work.”
My reply:
As is so often the case, especially with major changes, the politicians, lobbyists and advocates for one side or the other try to create confusion with exaggerated partial facts . . . I believe constructed to intentionally cause confusion, doubt and a fertile environment for grassroots disinformation. I am not aware of any of the legislation before Congress, at least as represented in the Library of Congress database, that even hints at national health care. The variations of the current health plans before the House & Senate seek to provide coverage for the uninsured or under-insured. I do not believe any of the current proposals will change our current coverage, for those of us who still have health care coverage. One of the plans recommends taking health benefits as taxable income as a means to pay for the uninsured folks; needless to say, I’m not too keen on that, as I suspect there will be knock-on effects that have not been considered. I am not impressed with either the House or the Senate plans. Hopefully, some hybrid of the two will be closer to reasonable and realistic. We shall see.
Re: funding for those able to but not working, we seem to get into the question on many related topics like drug and alcohol use, smoking, etc. I am willing to help those who wish to be helped. I am not interested in helping those who do not want to be helped or those who seek to take advantage of our generosity.
We are a long way from health care reform. Further, any workable solution must include the proper regulatory oversight to strongly punish fraud, waste and abuse.
Comments and contributions from Update no.396:
“A most interesting subject Cap. Our joint King was a worse character than our history portrays, although he is roundly blamed for losing what must have been the most important part of our colonies.
“I was most interested in the subject of the right to bear arms. I gather from your comments that you yourself have some sort of hand gun for the defence of your family.
“It’s a different world Cap, very different.
“I note that there is some reference to arming civilian militia, presuming I assume that such a militia would be to wrench power back from a rogue government. Surely an outdated idea now.
“None of our business over here mate just so very different but we respect your laws of course.”
My response:
Re: “our joint King,” i.e., King George III: indeed, so history has recorded. Yet, as with all leaders, much was done in his name, with zealous bureaucrats adding an extra measure of salt to the wounds in his name. Nonetheless, yes, George III shall carry that burden ad infinitum.
Re: guns in America: yes, it is a different world. Further, the United States of America is neither lawless nor “shoot ‘em up” as the Press likes to portray this Grand Republic. I am not so quick to discount an armed civil militia. Sure, the justification for such a body is not what it was in 1788, or even 1888, yet there are still a host of reasons for maintaining such a capability, not least of which might be the aftermath anarchy of a major disaster like an earthquake, hurricane, or such. When law enforcement becomes saturated, civil conditions often deteriorate swiftly – the “Lord of the Flies” scenario, so to speak.
Of course it is your business. We are all part of the world community. We should all be concerned about what goes on in the United States, the United Kingdom, Iraq, Afghanistan, Pakistan, et cetera. We all have a responsibility to ask questions and hopefully engage in proper debate on the issues of our time. I am sure you have noticed that I quote / review British law and current events, where appropriate.
Another contribution:
“AMEN on your comment of the Nogales education situation below ... nothing wrong with teaching English to the Mexican children, but we should not use our tax dollars to provide teachers who hold classes in JUST Spanish !! Spanish AND English OK ... but not JUST Spanish!! They DO need to adjust to an English speaking society. Good example you have made of the Americans in Italy. I'm sure the Italians don't hold solely English taught classes ... except maybe at military bases where the predominant language might be English.”
My reply:
I am an advocate for multi-lingual, multi-cultural societies, and especially our society. However, I am not particularly tolerant of those who resist assimilation and refuse to speak the language, or abide by the laws and customs. I am strongly against printing official government documents like identification papers, election ballots, laws, et cetera, in any language other than English.
A different contribution:
“As an attorney, I don't have much truck with John Yoo. It isn't Bush bashing--in fact, I think that he served the President very poorly. As noted below, even the Bush Administration realized that and has stepped back from Yoo's work. (Below, Bradbury's statement is a very strong rebuff.) In his position, he needed to say what could be done and how one could do it—as well as saying something cannot be done, or cannot be done in a desired manner. He didn't want to say no, so he formulated some bizarre legal theories to buttress his findings. His job was to tell his client what he needed to hear-- not what he wanted to hear.
“The excerpts below are from an article I read in the wake of his recent article. Strong opinions, but on point. Again note that Yoo never mentioned the seminal case in the area, Youngstown Steel. To not mention the main holding case on a position would flunk a law student or bar exam taker. He should have mentioned the case and then distinguished how his position is different. The fact that he didn't meant that he couldn't think of a way to distinguish his brief from Youngstown. It is lawyer-ing 101.”
---------------------------------
[The attached (as yet) unattributed article:]
“Even the Bush administration's Office of Legal Counsel eventually repudiated all of Yoo's opinions (a fact that he somehow omitted in his Journal piece), and the legal community has overwhelmingly rejected his arguments. But to be fair to Yoo, I decided to read not just the newly released memos, but his 2003 torture memo.
“It isn't necessary to spend much time eviscerating Yoo's outrageous Oct. 23 memo authorizing military force, because the Bush administration already did that. In an Oct. 6, 2008, memo, Principal Deputy Attorney General Steven Bradbury disposed of it. ‘We also judge it necessary to point out that the 10/23/01 memo states several propositions that are either incorrect or highly questionable,’ Bradbury writes. Those ‘incorrect or highly questionable’ propositions are pretty much Yoo's entire argument.
“In his Wall Street Journal piece, Yoo attacks his critics for taking his statement that free speech rights can be abrogated in wartime out of context. But nothing in Yoo's Oct. 23 memo, or his other memos, inspires confidence that he would not be prepared come up with tortured legal arguments to abrogate free speech. The case Yoo cites, Near v. Minnesota, was cited by the justices who tried to prevent the release of the Pentagon Papers on ‘national security’ grounds. When one looks at the quality of Yoo’s legal reasoning in the 2003 torture memo, it becomes obvious that no fundamental American right would be safe in his hands.
“In that infamous memo, Yoo legally redefined torture. His arguments for this redefinition are truly remarkable. They are a case study in intellectual bad faith.
“The U.N. Convention Against Torture, to which the U.S. is a signatory, defines torture as the infliction of ‘severe pain.’ The U.N. Convention is implemented in U.S. law (18 U.S.C. 2340). Yoo’s legal task was to find legal grounds to define ‘severe’ in a diminished way. There is nothing on the books to support such a redefinition.
“Yoo came up with one of the most bizarre, illogical and specious arguments in the history of law. He dug up a federal statute that had absolutely nothing to do with the issue he was examining, seized upon a passing reference in that statute to ‘severe pain’ that was not and could not possibly be interpreted to be a definition of that state, and then asserted with a straight face that this reference supported a radical redefinition of ‘severe pain.’ To compound this, he then lied about what the statute actually said.
“In short, he simply made up a torture-friendly definition of ‘severe pain,’ and then found a way to justify it.
“The statute Yoo cited, 42 U.S.C. 1395, regulates insurance benefits under the ‘Medicare and Choice’ plan. It defines an emergency medical condition as one ‘manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layman’ could reasonably expect that without immediate medical treatment, the individual displaying those symptoms would be at serious risk of losing their health, suffering serious impairment to bodily functions, or suffering serious dysfunction of any bodily organ or part. From this bureaucratic definition of ‘emergency medical condition,’ Yoo magically derived a new, torture-friendly definition of ‘severe pain.’
“‘Although these statutes address a substantially different subject from section 2340,’ Yoo blandly notes in a world-class understatement, ‘they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture ‘severe pain’ must rise to a similarly high level -- the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.’
“Not only was Yoo’s argument about torture utterly absurd, he also ignored the single most important ruling about expansive presidential power in foreign affairs, the Supreme Court’s landmark ‘steel seizure’ case. As legal analyst Stephen Gillers wrote, this is like ‘advising a client on school desegregation law and ignoring Brown v. Board of Education.’
“After reading the torture memo, it is simply incontestable that Yoo was either grossly incompetent, or that it was his intention to twist the law to tell the Bush administration what it wanted to hear.”
My reply:
I understand your point regarding Youngstown Sheet & Tube Co. v. Sawyer [343 U.S. 579 (1952); no. 744]. I will certainly concede that Yoo’s paper would have been far more scholarly, if he had mentioned Youngstown and at least discounted the case in application to the topic at hand. We have discussed this before [387]. Youngstown was a domestic separation of powers case, with the “police action” of the Korean War as Truman’s rationale and justification. It was not a warfighting case. If, as you suggest, Yoo avoided Youngstown because he could not find rationale in the shadow of the case, then you have a point, but I just do not see Youngstown as the controlling case. Perhaps you can help me appreciate why you think it is.
You did not have an attribution to the article excerpt you inserted.
The Bradbury memo of 15.January.2009, was hardly a “repudiation;” it was a lame CYA attempt, if I ever saw one. Like so many, Bradbury offers essentially no rationale for “disposing” of the 23.October.2001, Yoo memo; he just says it was wrong, essentially. As you point out with the missing Youngstown reference, that Yoo memo may be imbalanced but hardly wrong. “[N]o fundamental right would be safe in his hands” . . . perhaps, although I do not find the justification for such a statement in Yoo’s words. Do we have reason for concern? Yes, absolutely. I supported the USA PATRIOT Act of 2001 [PL 107-56] when Congress passed it and the President signed it into law. Today, I am giving the Obama administration the benefit of the doubt but expecting the worst. I was truly and deeply disappointed in the Bush administration’s collateral usage of the original law and the Reauthorization Act of 2005 [PL 109-177]. I recognize the necessity for these tools to wage war successfully in the War on Islamic Fascism, but the frail human beings entrusted with wielded such power have proven themselves unworthy. We must find a more balanced means.
We can and should debate the content and rationale of the two Yoo 1.August.2002, torture memos. Of course, “[t]here is nothing on the books to support such a redefinition.” The issue of Enhanced Interrogation Techniques (EIT) for intelligence purposes during wartime has not been addressed in the law . . . to my knowledge. I’ve read Yoo’s rationale. I understand and appreciate the challenge in finding balance between “severe pain,” interrogation inducement, national security, and our fragile sense of propriety.
I am trying not to be in the position of defending Yoo. His memos were laborious, sometimes disjointed, and certainly not balanced, as you have noted and I have agreed; but that does not make his arguments “outrageous,” “bizarre,” or whatnot. I am interested in the defense of this Grand Republic against a determined, amorphous enemy. We will not have a constructive debate on EIT unless we can get passed politics that has inflamed and ensnared this issue. So, I would rather risk trusting the judgment of an intelligence field operative than any damnable politician, and that is a very sad statement. That said, this notion of “severe pain” is a chimeric distraction. To some, “severe pain” is a pin prick on their finger; to others, it is anything short of milk & cookies in front of the TV. EIT within the intelligence collection process is an inducement to provide the information an individual possesses; EIT is the final tool in the kit. Interrogation processes should NOT be a topic of public discussion for one paramount reason – disclosure to our enemies. We have already gone too far.
Bottom line: I do not agree with the writer of the article. Yoo’s motive and performance were not so negatively binary as he portrays. I’ve read (studied) most of those memos, and I simply do not agree with such an extreme assessment. So, if we wish to debate presidential power to wage war successfully or encourage a high level battlefield combatant captive, then let’s get it on; but, let us move passed the political rhetoric. Perhaps, if you wish, we can dissect Yoo’s 1.August.2002 memo, or any one of his products. I’m ready.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
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