Update no.421

Update from the Heartland
No.421
4.1.10 – 10.1.10
Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- The convulsions in the aftermath of the Christmas Day bombing attempt [419 & sub] continues unabated and probably will for quite some time . . . and rightly so. I offer a series of relevant articles (by no means an exhaustive listing but representative of the spectrum) for those who might be interested.
** Nightwatch Intelligence Summary
http://nightwatch.afcea.org/NightWatch_20091230.htm
** “The Christmas Day Airliner Attack and the Intelligence Process”
by George Friedman
Strategic Forecasting, Inc.
Published: January 4, 2010; 18:40 GMT
http://www.stratfor.com/weekly/20100104_christmas_day_airliner_attack_and_intelligence_process
** “Human Rights Gagged MI5 Over Abdulmutallab -- Intelligence on Muslim radicals cannot be passed to the US because of privacy fears”
by David Leppard and Hala Jaber
[London] Sunday Times
January 10, 2010
http://www.timesonline.co.uk/tol/news/politics/article6982393.ece
** “9/11 and Christmas 2009: Two Examples of a Failure of Intelligence”
by Melvin A. Goodman
truthout - report
Published: Monday 04 January 2010
http://www.truthout.org/104094
We will continue to experience these probes and challenges to our way of life. Clearly, our intelligence and security apparati did not perform as we expect or even as they would expect during the weeks and days prior to Christmas 2009. Yet, the worst element came from the Times and the apparent gagging of MI5 due to human rights and privacy concerns, which can be translated to mean the Americans cannot be trusted with sensitive intelligence information. If I was POTUS, I would be far more concerned about our damaged relationship with key allies and specifically our allied intelligence agencies. Defending against a lone, suicidal, terrorist operative demands multiple layers and as many collaborative, cooperative brains as possible on those who would harm us. Sadly, I suspect a more troubling reality beyond the public facts to date. Abdulmutallab was the executioner of the moment. Further, I believe there were numerous others who took components of this type of device on airliners through various airports to establish that the assembled device used by Abdulmutallab would not likely be detected. Al-Qaeda’s reconnaissance and probing activities were successful; Abdulmutallab was not detected. Luckily, his device burned rather than exploded. I trust the Executive has begun improvement of the Intelligence Community. I hope Congress will refrain from the foolish, short-sighted, knee-jerk, reaction of the Church Committee reforms of the late 1970’s.

From my comments on the Intelligence Community above, here are some reasonable changes worth consideration and debate.
“The New Rules Of Engagement - Nine imperatives for our post-9/11 world”
by Philip Bobbitt
Newsweek
Published: January 2, 2010; from the magazine issue dated: Jan 11, 2010
http://www.newsweek.com/id/229046
-- Statutory rules to authorize preventive detentions
-- A special Article III court to try terrorists
-- Regulations strengthening external oversight of data mining
-- Addressing the privacy concerns that have prevented the installation of millimeter-wave scanners
-- A national ID card law
-- Adoption of the isolation-and-quarantine statute
-- Establish new laws to govern the use of federal troops in disasters
-- Mandatory insurance for critical infrastructure
-- New rules governing the replacement of members of Congress, the Supreme Court, and the executive branch.

“The Conservative Case for Gay Marriage - Why same-sex marriage is an American value”
by Theodore B. Olson
Newsweek
Published January 9, 2010; from the magazine issue dated Jan 18, 2010
http://www.newsweek.com/id/229957
You may recall that Ted Olson and David Boies have pressed a Federal case [397] against the California Prop H8 [360]. Ted concludes his essay, “Americans who believe in the words of the Declaration of Independence, in Lincoln's Gettysburg Address, in the 14th Amendment, and in the Constitution's guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues. This is not a conservative or liberal issue; it is an American one, and it is time that we, as Americans, embraced it.” The trial of Perry v. Schwarzenegger before Federal District Judge Vaughn R. Walker will begin tomorrow. This is will an extraordinarily important case and likely destined for the Supremes.

Another important article to help us think and hopefully to find more tolerance in our heart for those who choose a non-traditional path.
“Love’s new frontier – It’s not monogamy. But it’s not cheating or polygamy, either. It’s called polyamory, and with hundreds practicing the lifestyle in and around Boston, is liberal Massachusetts ready to accept it?”
by Sandra A. Miller
Boston Globe
Published: January 3, 2010
http://www.boston.com/bostonglobe/magazine/articles/2010/01/03/loves_new_frontier/

As noted in last week’s Update [420], the Montana Supreme Court ruled on the appeal of the state’s death with dignity case. A year ago, Judge McCarter decided in favor of terminally ill, retired, truck driver Robert Baxter – Baxter v. Montana [MT 1JD ADV-2007-787 (2008)] [366]. Associate Justice W. William Leaphart wrote for the divided court in an odd decision that vacated Judge McCarter’s order based on constitutional grounds, and yet still found in favor of now-deceased Robert Baxter – Baxter v. Montana [MTSC DA 09-0051; 2009 MT 449 (2009)]. In his concurring opinion supporting the Court’s backing away from the constitutional question, Associate Justice John Warner observed, “I have found many times in my judicial career that Viscount Falkland is correct: ‘when it is not necessary to make a decision, it is necessary to not make a decision.’” [NOTE: Viscount Falkland to whom Warner referred is specifically, Lucius Cary, 2nd Viscount of Falkland (1610 – 1643).] Reflecting this caution, Leaphart focused on a very fine line in the law. He noted, “In physician aid in dying, the physician makes medication available for a terminally ill patient who requests it, and the patient would then choose whether to cause his own death by self-administering the medicine.” My note as I was reading the Leaphart’s words: “A subtle and precarious distinction, it seems to me.” The dissent focused solely on the societal prohibition of suicide and against anyone assisting suicide. Writing for the dissenters, Associate Justice James A. “Jim” Rice declared that the State’s interest in prohibiting suicide rest in “protect[ing] and preserv[ing] human life.” Whose life is the State protecting and preserving? Surely, not the suffering patient at issue! Such pejorative and paternalistic thinking assumes that it is the State’s life (as in ownership) that becomes the subject of protection, as if for some un-stated, unseen, unrecognizable purpose. If the State has some compelling purpose, what is that purpose? If that purpose is simply to preserve life, then why not keep every human being on life support . . . forever . . . to preserve life! There must be a distinction or differentiation in suicide as there is with homicide; after all, there is a monumental difference between assisting a terminally ill, 90-year-old man versus a despondent 19-year-old girl. The Court tip-toed around that distinction presumably to avoid the constitutional question. The sad, humbling truth in this debates remains . . . we are talking about choice . . . individual, private, personal freedom of choice. While the court reached a proper decision, it failed to recognize the right’s of an individual citizen over the State’s interests in a very specific, closed, private situation.

I completed my reading of the 90-page Memorandum Opinion [420] regarding the dismissal of all charges against 5 of 19 Blackwater guards involved in the 16.September.2007, Nisur Square, Baghdad, Iraq, shooting incident – United States v. Slough [DCDC 08-0360 (RMU) (2009)]. This is one of the ugliest judicial proceedings I have read in recent years. Judge Urbina went to get lengths to document how “the government has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt.” If I was a more suspicious, conspiracy-driven, anti-government citizen, this case would be added to my cause celeb list – this is why we must fear the Government’s abuse of power. The court’s objection centered upon the government’s prosecutorial use of compelled, after-action, investigation statements by the defendants in violation of their 5th Amendment rights. Based on the information provided by Judge Urbina in his dismissal ruling, I suspect there was probable cause for this case. However, the Government has absolutely no right or authority to ignore the Constitution or judicial procedure as a consequence. In the worst case, if these Blackwater operatives intentionally shot up innocent Iraqi citizens with malice of forethought, then they have apparently escaped justice due to the Government’s almost blind zeal to prosecute. In the best case, if the Blackwater operatives were truly confronted with engagement by insurgents or al-Qaeda in Iraq operatives imbedded among innocent Iraqi civilians and bent upon mayhem, then the Government has done an incredible injustice to those Americans defending that convoy and to America’s reputation. Yet, reading Judge Urbina’s ruling, I am reminded of a peculiar phenomenon among attack pilots – Target Fixation. Prosecutors were so focused on conviction, they forgot about the law. Judge Urbina’s exhaustive rendition of the tragic events at Nisur Square and the prosecutorial consequences gives us an excellent example of the difficulty and (I will add) the inappropriateness of criminal law on the battlefield. Essential prosecutorial procedures cannot be maintained or respected in combat conditions. From a warfighting perspective, like aviation safety, prosecution must take a secondary position, and even then, prosecution should only be untaken in cases of clear, gross abuse. Warriors must have the advantage of presumed justification at least until there is overwhelming “proper” evidence to exceed the presumption. Did the Blackwater guards use excessive force given the conditions? Probably so. Did the Blackwater guards use unwarranted force? I am not so sure or convinced . . . for a host of reasons. Bottom line: in combat, I prefer to give warriors the benefit of the doubt. This prosecution was wrong from the get-go and driven by political motives.

News from the economic front:
-- U.S. employers reduced payrolls by 85,000 in December, more than economists expected. However, November payrolls were revised to a gain of 4,000 from a loss of 11,000.

Comments and contributions from Update no.420:
From the Blog:
“I'll repeat myself on the health care non-reform. The current package is a major gift to health insurance providers and nobody else. I do not see this as a step on the right path. You don't go from Chicago to Los Angeles by heading to Montreal and New York.”
My reply to the Blog:
The best I can say is, I truly hope you are wrong.

Another contribution:
“A comment on the foiled Christmas bombing....
“Regarding the intel, NightWatch opines that the problem wasn't information sharing- it was failure to realize the problem. Not sure, but it would depend on what the information was. An interesting take.
URL: http://nightwatch.afcea.org/NightWatch_20091230.htm
My response:
I would agree with the Nightwatch assessment as far as it goes. The challenge in all intelligence operations is the analysis. HumInt is never easy, and generally always quite dirty and ultimately flawed. What Nightwatch misses in his assessment is the underlying, foundational vulnerability (weakness) of American intelligence. Why did the IC fail to connect the dots in this case? Some of the answer is as he states – insufficient resources, inadequate understanding or appreciation for our enemies, et cetera. Beyond all that and underlying those facts, there is an inherent distrust among agencies largely driven by conflicting interests. CIA does not want to share data or analytic information with the FBI out of fear the information will appear in court in some prosecution. NSA does not want to share it’s sources / information out of fear it will be leaked to New York Times for some silly parochial political purpose. MI6 / MI5, DGSE, BND, et al, are reluctant to share information with the United States because we sometimes act in unilateral, temporal, knee-jerk ways.
Analysis (connecting the dots) is all about context. For reasons we do not yet know (publicly), the analysts who reviewed the Abdulmutallab data probably viewed the information from the father – Alhaji Umar Mutallab – as just another dot among millions of dots. Should the IC have connected the dots? Probably so. However, I have not seen sufficient information to justify the public excoriation of the IC.
The nature of the beast . . . there will be other events like this. Clearly, this episode highlights the fact that there are many things we can do to improve our intelligence services and processes, but that is not news. However, until we figure out how to keep opposing political forces from leaking highly valuable intelligence information to the Press, we shall have to endure these failures.

A different contribution:
“Obama's public criticism of the intelligence community should surprise no one. First of all, the man is devoid of any leadership skill or experience. Second, it's clear he does not think highly of the IC, as he goes to the CIA early in his administration, says they're doing a good job and they will be protected, then his dufus of an Attorney General comes out and talks about prosecuting interrogators and senior Bush Administration people for supposed "torture" of terrorists at Gitmo. And oh yeah, Obama giving away our interrogation techniques to our enemies. Great way to support the IC. Heck, why should al-Qaeda or Iran be afraid of us with this bunch in the White House?”
My reply:
I have not been able to find the citation source or the actual quote, but as my pea-brained, feeble memory recalls . . . a WW2 German general bemoaned going up against American units as they invariably were confusing, unpredictable, and often inept, and yet overwhelmed vastly superior forces.
I criticize Obama and his lieutenants just as I criticized Bush and his lieutenants. They were both driven by political forces rather than the best interests of the Nation.
We shall overcome.

Another contribution:
“Ultimately it is Obama, as head of his party, who is responsible for ‘How’ the Health care bill gets passed. So from what seems to be the Democrats plan of attack, there will be no transparency, much less all interested parties sitting down at the table to work it out. Both of those things were big promises by Obama during the Campaign. The Dems seem bound and determined to just ram what They want down our throats. And Obama is doing nothing to stop it.”
My response:
I think others have said it best . . . health care reform as Congress sees it has boiled down to who pays . . . and has nothing to do with more efficient, focused, productive health care. Another contributor suggested we re-title this bill to the Health Care Insurance Company Windfall Profit Act of 2010. Transparency has been a joke virtually from the get-go. Now, the talk inside the Beltway is that Harry & Nan are going to circumvent the conference committee process to reconcile the Senate & House versions and somehow produce a final bill to be voted on by both chambers before the President’s State of the Union speech. Obama also said he would veto any bill with earmarks, and yet the obscene practice continues unabated. The best we can do short of revolution is vote the damn bastards out of office and install a fresh batch. If every House member and every Senator up for reelection was voted out, the message would be really clear. Do the People’s business responsibly and ethically, or you are fired.

One last comment:
“We went to see ‘Avatar’ in 3D IMAX...it was a true visual experience (we are all big SCIFI fans!). Well worth the extra expense of going to the IMAX theater. The underlying story line was just a little trite, but that was far outweighed by all of the other positives about the movie. This type of escape to fantasy seems to be some much more enjoyable these days as a retreat from the frustration and disappointment of the daily political scene in this country. The more I read and learn of the shenanigans going on in DC, the more disheartened I get. I have zero faith in any of the parties or any politician to be acting in the interest of the people they were elected to serve. Also, true story that is real, feel-good entertainment, if you haven't seen it yet, is ‘Blind Side,’ and is well worth the cost of a movie. Keep smiling, and may God bless America.
My reply:
I was not able to find a local theater showing “Avatar” in IMAX 3D. I’d love to see that movie in the IMAX format; perhaps someday.
The two political parties are different sides of the same coin. They both spend like drunken sailors. They are both bankrupting this Grand Republic. I sure hope sobriety comes before the end.
We’ve not seen “Blind Side” yet; but, we both want to.

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