Update no.413

Update from the Heartland
No.413
9.11.09 – 15.11.09
Blog version: http://heartlandupdate.blogspot.com/

To all,
The historic event that garnered the most attention this week was the anniversary of the fall of the Berlin Wall – 9.November.1989. On that day 20 years ago, GDR Lieutenant Colonel Harald Jäger opened the East Berlin checkpoint at Bornholmer Strasse and the dominoes began to fall. As we celebrate the euphoria of the German people and their reunion, let us also remember a not-so-happy tragedy in Germany 71 years ago – Kristallnacht (Night of Broken Glass), when the gloves came off regarding the Nazi Judenfrage – lest we ever forget. The next day, the Brotherhood of Marines celebrated 234 years of service to this Grand Republic, and as tradition has it, we read Marine Corps Order no.47 (series 1921) from our 13th Commandant of the Marine Corps, Major General John Archer Lejeune, promulgated 1.November.1921. We are proud to be Marines and to have done our duty. Then, the following day, we remembered the service of all veterans in the shadow of the horrific sacrifice commemorated at the 11th hour of the 11th day of the 11th month. May God continue to bless all patriots who have served and continue to protect the Liberty we cherish.

This year, the honor for me and my service came from each of our grandchildren. The youngest, Grandson Judson James, 2, sent a video clip thanking me for my service. Our Granddaughters Aspen Shae, 12, and Shalee Lynn, 8, invited us to attend school ceremonies to recognize veterans within our family as well as the wider community. Words cannot possibly convey the pride an old man feels with his grandchildren and with our children who are developing the next generation of citizens.

The follow-up news items:
-- Scientists began to report the results from last month’s NASA LCROSS mission [408], Earth’s only natural satellite has more water than remote scans indicated. If the continuing analyses validate the initial findings and assist in the refinement of preliminary estimates, we could see a substantial shift in our planetary exploration plans
-- Disgraced and now convicted felon, former, Representative William Jennings “Dollar Bill” Jefferson of Louisiana [233, 240, 252, 258, 287, 295, 330, 346, 360, 364, 399] was sentenced to 13 years in federal prison. Finally! I trust he will enjoy his stay at taxpayer expense.

In the wake the House passage of H.R. 3962 (the health care reform bill), a few additional thoughts:

Go to any metropolitan emergency room and I am certain you will see “patients” in there with a sprained ankle, or a tooth ache, or even just a simple head-cold. When an indigent citizen goes to an emergency room for treatment, who pays for his medical care? Answer: we do! Unrecoverable expenses go into the hospital’s overhead expenses pool, which is divvied up and attached to every single dollar received by hospitals for patient care – one of numerous reasons hospital charges are so outrageous. The only thing we are not paying for is preventative or prophylactic care that might preclude emergency room visits. So, what is the difference between paying under- or non-insured treatment via higher hospital costs or taxes? I am not convinced national health care in the form of the British National Health Service or any of the other myriad forms is the way to go, but I need no convincing that the status quo is simply not sustainable or healthy – pun intended. No matter what system is put in place, there will be abuses, i.e., people who seek undue benefit from the generosity of We, the People. I suppose, for some, any reason to stop any health care reform legislation is sufficient and appropriate for them. Heck, more than a few folks are against health care reform simply because President Obama is advocating for it, or because they do not want the Democrats to claim any political victory. So, when the social conservatives conjured up “death panels” or even the abortion issue, no problem. Good to go. Yet, it is the use of the abortion issue as a bludgeon that I find irritating and disgusting, and another example of trying to use government to make personal, intimate decisions . . . the folks that such prohibitions will hurt the most are the less fortunate among us. This is just not the way to deal with the abortion issue or even the death with dignity question . . . make poor folks the pawns in the ideological conflict between political extremes. It just about makes my puke.

“The Hasan Case: Overt Clues and Tactical Challenges”
by Scott Stewart and Fred Burton
Strategic Forecasting, Inc.
Published: November 11, 2009; 18:41 GMT
http://www.stratfor.com/weekly/20091111_hasan_case_overt_clues_and_tactical_challenges?utm_source=SWeekly&utm_medium=email&utm_campaign=091111&utm_content=SecTitle
The problem is the War on Islamic Fascism has never been about Islam, as a revealed religion in general. The issue and our enemy in the current war has been, is and will be a radical, fundamentalist minority who use religion as their rationale for violence, intimidation and oppression. The Islamo-fascists among Muslims seek to impose fundamentalist ideology of every living human being. Islamo-fascists even seek to depose governments in predominately Muslim nations because those governments are not fundamentalist enough. These guys are not just against the United States and its Allies; they are violently opposed to any government or person who resists their rabid ideology. They happily kill Muslims as well as infidels. The difficulty for us has been and will remain sorting out the rabid vermin among the majority of good Muslims both within the United States, the European Union, and even predominately Muslim countries. Islam and Muslims are NOT the enemy. Hasan’s demonic action was clearly a terrorist event and must be punished in the same manner as the Oklahoma City bombing. As yet, I have not seen sufficient evidence to link this tragedy to the Islamo-fascist movement. If that linkage is made, then his actions go beyond Islamo-fascist terrorism; they would be treason. The consequence should be the same.

“A National Disgrace”
Editorial
New York Times
Published: November 11, 2009
http://www.nytimes.com/2009/11/11/opinion/11wed1.html?_r=1&th&emc=th
The Times’ editorial, published on Veteran’s Day, caught my attention. The editors admonished the en banc (on the bench) U.S. Court of Appeals for the Second Circuit, and claimed an Italian court in a similar case {Egyptian Islamist cleric Hassan Mustafa Osama Nasr (AKA Abu Omar) [412]} got the judgment correct but the American court did not. The case that attracted the ire of the New York Times editorial staff was Arar v. Ashcroft [2CCA 06-4216-cv (2009)] – another challenge to our principles and legal processes imposed by the Islamo-fascist enemy we face in war. Maher Arar holds dual citizenship – Canada and Syria – and alleges that he was detained while changing planes at Kennedy Airport in New York (based on an alert from Canadian authorities that he was a member of al-Qaeda), mistreated for twelve days while in U.S. custody, and then removed to Syria (via Jordan) under the USG’s extraordinary rendition process and subjected to interrogation under torture by Syrian officials. Chief Judge Dennis G. Jacobs wrote an unconvincing opinion for the majority, affirming the district court’s dismissal of Arar’s case, largely on the government’s invocation of the state’s secrets doctrine. The weight of this ruling lies with the dissent – 122 of 181 pages. We can see the very essence of the majority’s concern in the rationale of the dissent – particularly the version written by Circuit Judge Barrington Daniels Parker, Jr. The dissent advocates for a virtually open application of Bivens criterion, in which the Supreme Court tried to define a tight boundary around, without closing the door on, an individual filing a compensatory damages claim against government agents who violated his constitutional rights. The result in such cases inevitable becomes a test of government decisions and policy. Once more, we take up the challenge of where do we draw the line? When is secrecy appropriate? It is strikingly odd especially in the dissenting opinions that a prevailing presumption, if not assumption, is the veracity of Arar’s claims and paucity of strength in the government’s assertions. We acknowledge a presumption of innocence until proven guilty for accused citizens. Apparently, there is no such presumption for citizens serving We, the People, as civil servants, and trying to defend the country. The most cogent and convincing of the dissenting opinions came from Judge Rosemary S. Pooler. The essential and key element in her argument is the connection between American and Syrian agents. If the Americans knowingly sent Arar to Syria for the purpose of torture, i.e., circumventing U.S. and international common law, then those agents have violated the law and should be held accountable. Yet, to me, the overriding factor remains our current state of war. The state’s secrets doctrine has different meaning and consequence during wartime – American lives are directly at risk. As with so many political issues, timing is everything. If this case was being adjudicated in the equivalent of 1947 vice 1942, my opinion would be different. As I read cases like this, I constantly return to the larger reality – we are at war! The purists among us will argue that the law is the law regardless of time or circumstance. I will argue, nay, nay; whether the Judiciary likes it or even acknowledges it, we remain at war and that establishes special conditions. I encourage legal consequence and historic examination in the aftermath of war. I remain highly resistive to such activities while our troops remain in harm’s way. Reluctantly, I must side with the majority in this case and condemn the Times’ editorial opinion as naïve and counter-productive.

United States Attorney General Eric Holder announced the government’s intention to try Khalid Sheikh Mohammad (KSM) [068 & sub], Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi in the U.S. District Court for the Southern District of New York. I understand, appreciate and accept our need to abide our societal processes, to stand up for our principles, and to defend our national reputation. I am proud to be a citizen of this Grand Republic. I want anyone who has caused injury to others to be held accountable for his actions. I even accept those among us who seek retribution and condemnation for an administration they despised, perhaps even hated. However, to be direct, blunt and even perhaps a little offensive, Attorney General Holder’s announcement brings nothing but dread to my consciousness, a torrent of unanswerable questions in the shadow of that dread, and a deep, intellectual, focused animosity toward the political forces that continue to corrode the very fabric of this Grand Republic. As General Julius Caesar so succinctly and eloquently said, “Alea iacta est!” We shall endure this episode as we have all the others; however, please indulge me and allow me to bleed. A criminal trial before a jury is NEVER a slam-dunk, e.g., the O.J. Simpson murder trial. Judge Barrington’s dissent in the Arar case (above) accentuates the risk we are about to take in a KSM trial. Decisions made shortly after KSM’s capture in the context of a criminal trial – for better or worse – will draw U.S. policy into judicial review. The United States of America – each and every one of us – chose to seek the intelligence KSM and others possessed rather than prosecute him as a common criminal. The consequences of that decision in the light of the Government’s decision to try KSM (and others) as common criminals means that the whole process from capture to trial will be placed before the bar and before a jury, and far more ominous before the public, the World, and the worst of all our enemies. If so, the intent is to place the CIA, extraordinary rendition, and enhanced interrogation techniques on trial in open court. So many questions . . . What if the jury finds him innocent, are we going to set him free? Can we sue any government employee for monetary damages when we disagree with any action he takes? Does every citizens in the world have access to sue the government when they disagree with U.S. action? This is why there must be limits.

A new topic opened by a contributor:
“I don't know if this type of stuff scares the be-jesus out of you all, but I can it surely does me. Sure this is not a sinister device declared to overthrow our liberties...but then again how many things actually carry that tag? On the surface it seems like a great idea and even seems to be helping, but when you factor the cameras that increasingly monitor our COMMON areas this swiftly becomes a slippery slope I would much rather stay away from. Today it's monitoring gunshots but I wonder what upgrades it will soon receive and begin monitoring other things. I am not your everyday conspiracy theorist and I will admit I briefly supported the Patriot Act, that is until I read its pattern of usage for years after its birth. As with most government plans this one has begun nobly but I wonder how and when this too shall become perverted. Empire's seldom, if ever, fall with a bang...it is far more common they perish from a thousand cuts and end in a whimper. I hope I am way off on this but thought it important enough to send out when I just saw it, so as many people as possible could become aware.
http://money.cnn.com/2009/11/09/smallbusiness/ear_for_crime.fsb/index.htm?postversion=2009110904
“For those of you that have gotten this far....thank's for humoring me.”
My response:
I supported the USA PATRIOT Act of 2001 [PL 107-056]; much longer than you did. It took me longer to recognize the clarion call of caution you sounded . . . just slow I guess. Given that reality alone, I must give weight to your observation.
Nonetheless, I am not quite so leery of this technology. There is one huge difference between ShotSpotter and the Executive Branch’s implementation of the PATRIOT Act – public versus private. ShotSpotter listens in the public domain and then triangulates the source of a very specific gunshot report. The deployment of such a system would only make sense in an urban environment, i.e., hunting dinner is not viable. ShotSpotter just provides information. Law enforcement must then determine whether the gunshot was felonious, self-defense, accidental or official. Whatever the cause, law enforcement would not be wrong to investigate. ShotSpotter is not a warrant. The Bush administration chose to use the power of warrantless, electronic surveillance for purposes other than waging war successfully; the intrusiveness of the State into private communications far beyond the purpose of the original power is stark testament to the potential abuses by the State.
That said and given the abuses of the PATRIOT Act you allude to, we must have protections and firewalls between information generated in the public domain and the intrusive reach of the State. Those protections were not put in place for the PATRIOT Act. They must be intimately interwoven into the use of any technology that gives the State greater power – the ability to see, hear, smell, touch, learn or otherwise sense is power. Thus, the question is, what constraints go along with the use of ShotSpotter or any other data collection technology.
. . . round two:
“I agree that at the moment ShotSpotter is a noble implementation indeed, I can both appreciate its purpose and its result. My hesitation comes from Federal funding of the operation, through most likely grants (much like highways) which in turn can be used to greatly persuade individual states legislatures. I pray it never comes to it and I believe it is not there now, but putting listening devices of any kind into public domain is a very painful step towards Orwell’s apocryphal vision. But yes, I could most likely be wrong as well [?], this was just something that raised the little hairs on my neck.”
. . . my response to round two:
Your caution is wise and justified. A Supreme Court case – Kyllo v. United States [533 U.S. 27 (2001)] [313] – illustrates the very question you raise; in that case, the police used thermal-imaging to “intrude” upon a citizen’s home. The technology to “see,” “hear,” even “smell” inside a private residence exists today. The Orwellian “Big Brother” is much closer than any of us want to admit. By the same token, that very same technology can and does save lives from simple crime to the War on Islamic Fascism. Kyllo put some controls on Big Brother’s tools, but certainly not enough to make me feel better.
Semper Vigilantia,
. . . round three:
“I have not read Kyllo but I thought the gist of it was the government had no rights to view the escaped heat from a home. In essence that was separate from how smells are typically justified as 'abandoned property' once they have left an object/place but I thought thermal imaging was not covered by the same idea. Either way you are correct and I concede that point, these technologies DO stop bad people and lives can be saved...I also remember a Senator from Wisconsin who started off with a good idea some years back and was rapidly perverted. Again though you are correct and as I stated this was simply an act of vigilance that if we willingly close our eyes because the images are too frightful, we have no right to complain about the horrors that come. In the end though I fear it's the young Roberts court which has me most concerned, I do not yet know how they feel about civil liberties. Only time shall tell.
“Long live the Republic.”
. . . my response to round three:
You got it correct; Kyllo was about the government using sensitive, thermal-imaging equipment to prospectively “search” Danny Lee Kyllo’s home for signs that he was using his house to grow marijuana plants for sale. The government argued that the technology was passive, i.e., it simply amplified infrared energy that was in the public domain. The Court said, nay, nay. The technology allows the government to detect what no human can sense; further, passively “probing” a private residence violates the 4th Amendment. Even more impressive, Antonin the Impaler wrote the opinion for the divided Court and for limiting the government’s power. The difference between Kyllo and the current Sowell case in Cleveland rests on detectability by any human being. The odor of decaying flesh should have been sufficient probable cause to investigate and perhaps even to get a warrant to search the house. Applying the Kyllo criterion to ShotSpotter, the technology simply does what the human ear can and does accomplish, just with more precision and correlated to a map; thus, I perceive ShotSpotter as acceptable, kind of like a traffic camera. Nonetheless, your apprehension and caution regarding the deployment of additional technology is warranted and valid.

News from the economic front:
-- Two former Bear Stearns hedge-fund managers, Ralph Cioffi [372] and Matthew Tannin [372], were found not guilty of securities fraud in federal court. Their trial was seen as a test of the limits of the financial industry’s penchant for putting a positive spin on bad results and where outright fraud begins.
-- Intel agreed to settle all antitrust and patent suits with rival Advanced Micro Devices for a US$1.25B billion payment and a new five-year cross-license agreement between the two companies.
-- The latest Wall Street Journal survey of economists suggests they do not expect the Federal Reserve to raise interest rates until September 2010. They also expect unemployment to rise to 10.3% by the end of this year and to remain above 9.5% through most of next year. The economists expect the American GDP to expand at roughly a 3% seasonally adjusted annual rate through 2010.
-- Germany's Federal Statistics Office reported the country’s GDP rose 0.7% in the 3rd Quarter -- the second straight quarterly growth. The French GDP also grew for the second consecutive quarter, rising 0.3%.

L’Affaire Madoff [365]:
-- The FBI has arrested Jerome O'Hara and George Perez, and charged them with conspiracy, and falsifying the financial records of a broker-dealer and an investment advisory company. The two men were computer programmers for Bernard L. Madoff Investment Securities in the early 1990s, and allegedly helped perpetuate the largest Ponzi scheme in human history. They face a maximum of 30 years in prison if convicted.

Comments and contributions from Update no.412:
From the Blog:
“Thank you for your comment on the sexual freedom article. I had not made that connection clearly before, and it matters. After all, the antics of corporations affect their employees, customers, shareholders, and competitors and have the potential to affect innocent bystanders and the environment in many cases. Events in my bedroom or my marriage affect me and any other people in my bedroom or marriage and nobody else. So why is important to free corporations do as they please but regulate my bedroom and my marriage?
“I noted on TV news reports this past week that experts see increasing temporary employment as an early indicator of an improving employment picture. My experience as a temporary worker supports that temporary employment is increasing dramatically. In a one-week period at the end of September 2009, I received separate calls offering me four different assignments. That is a dramatic change over the spring and summer temporary-work climate here in Columbus, Ohio, when I often went two weeks without any work at all.”
My response to the Blog:
The really hard part about connecting with individual citizens regarding Freedom and Liberty remains the personalization of the intrusions by government and/or others, i.e., unless something affects them directly, most folks ignore it – doesn’t matter to me. Apparently, most folks do not take the time to research issues or think things through. I try very hard to translate issues into tangible terms . . . with demonstrably limited success.

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