Update no.430

Update from the Heartland

No.430

8.3.10 – 14.3.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- Pakistani authorities announced their intelligence agents arrested Adam Gadahn [253, 317], the American-born spokesman for al-Qaeda, in an operation in the southern city of Karachi. I noted some very quick scrambling by the U.S. government to obfuscate, confuse and deny, which to me meant U.S. (Allied) intelligence operatives want to have a go at him before acknowledging his capture.
-- The House Democratic leadership announced a unilateral ban on earmarks [257 et al] to private contractors, which is intended to curtail under-the-table funding for the lobbying industry. While this is a very limited move, at least it is positive . . . even though it is an obvious, cheap, political trick to dampen the popular fervor associated with the obscene largesse of Congress. I am generally a positive person and I hate to be so cynical, but does anyone want to take a bet that Congress goes back to business as usual after the election this fall?

On Monday, the Supreme Court granted the petition of Albert Snyder [235] for writ of certiorari – hearing of his appeal – for the 4th Circuit ruling on appeal of Snyder v. Phelps [4CCA no. 08-1026 (2009)]. I reviewed District Judge Richard Bennett's finding after a jury found in Albert’s favor and awarded him US$9.2M in compensatory damages in his civil case against the Phelps clan and the Westboro Baptist Church of Topeka, Kansas – Albert Snyder v. Fred W. Phelps, Sr. [USDC MD civil action no. RDB-06-1389 (2007)] [307, 308]. The 4th Circuit reversed the district court decision and discharged the various appeal bonds. Circuit Judge Robert Bruce King wrote the opinion of the three-judge panel. The essence of the appeal decision boils down to one sentence. “[The Phelps clan does] not assert provable facts about an individual, and they clearly contain imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants are concerned.” From this one sentence, I think we can all see where the court headed. The court concluded, “Because the judgment attaches tort liability to constitutionally protected speech, the district court erred in declining to award judgment as a matter of law.” Interestingly, Judge King decided to quote Circuit Judge Kenneth Keller Hall from an earlier case – Kopf v. Skyrm [993 F.2d 374, 380 (4th Cir. 1993)]; judges defending the Constitution “must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people.” The tension between public and private, between the citizen and the State, and between conflicting rights presents a perpetual challenge. Yet, at the end of the day, we simply cannot legislate civility, morality, respect and propriety. The 4th Circuit Court’s reasoning implies that short using “provable” false factual statement or causing physical injury, the State cannot constrain a citizen’s right to speak freely. In a normal civil society, such judgment should and would be sufficient, since propriety would temper such malicious speech as the Phelps’ clan notoriously uses. However, when citizens go to extremes without some rules to constrain aberrant conduct, anarchy cannot be far behind. The Phelps freely admit their methods have one purpose . . . to gain media attention for their homophobic vitriol; and, in a free, civil society, it works. A social blight like the Phelps clan is the consequence of a free society. We must protect their rights in toto to ensure our rights are equally protected. This is one of those thin line marginal issues. Is a funeral private or public? The 4th Circuit concluded the latter. I could argue either way. Now, the Supremes will decide in the next session; and, my guess is, the High Court will agree with the 4th Circuit . . . unfortunately.

In the shadow of the Gadahn capture and “disappearance,” we have two American women – Colleen R. LaRose, 46, AKA Fatima LaRose or Jihad Jane, and Jamie Paulin-Ramirez, a 31-year-old mother of a 6-year-old son – arrested for terrorist activities in support of Islamic fascism. I imagine the FBI’s best interrogators are very busy.

A thread from another forum grew from the tragic death of 17-year-old Chelsea King near San Diego, California, and the arrest of convicted and paroled sex offender John Albert Gardner III for her rape and murder. The following portion of the thread began with the following article.
“On the matter of privacy”
by Don Kornreich
Originally published March 07, 2010
http://www.fredericknewspost.com/sections/opinion/display_columnist.htm?StoryID=102153
The part that got me started on this thread was the first line. “Does the Constitution protect privacy not expressly provided in the Bill of Rights?” From which, I joined:
I have a long-standing, unresolved debate with a strict fundamentalist / originalist constitutional scholar over this very issue. The reality is, there is no reference whatsoever to privacy in the Constitution, which by virtue of the 9th Amendment, a citizen retains an absolute right to privacy, unless We, the People, grant the government some authority to violate a citizen's fundamental right to privacy.
Round Two:
“It seems most of the public wants a balance between optimum privacy while protecting their community and nation. Events like 9/11 and the recent local (yet national travesty occurring in all states) rapes/murders/molestations of teen girls, kids, etc., is causing the citizens to demand criminal-justice do more, which will breach the privacy of those fitting a profile. I believe this is what you are referring to as well.”
. . . to which I added:
No, I'm not advocating that we “breach the privacy of those fitting a profile.” I'm not advocating we violate anyone's privacy, for I believe the violation of anyone else's privacy is a violation of your privacy and mine.
We typically use a massive bludgeon in our retroactive desperation to find the Gardner, Couey, Dahmer, et al. We are approaching the process all wrong . . . dealing with the symptoms, rather than going after the root cause(s). We have sacrificed far too much of our fundamental rights. Punishment/treatment is a far more costly practice than prevention. I am not interested in giving up more fundamental rights to give the State more power to intrude into the private lives of citizens. We must find a better way.
Round Three:
“Thanks for the clarification. Well said and a principled approach promoting civil liberties.
“I am afraid that the public can be spooked into various scopes and scales, of reaction (versus response). The media (esp. news outlets) are powerful. Even if they are innocently sensationalizing a story for share (ratings), the public perception of the issue often is distorted while emotionalized. As tragic and evil as the recent local murders of the two young ladies, I am concerned the lawmakers and politicos will seize the moment for their popularity and legacy, by enacting more laws and potentially undermining privacy, even broadly swept over those that would never even approach the profile nor actor, in these terrible crimes.
“You recall PSA #182 (B727) in our San Diego on 25-Sept 1978. Even though the Cessna was permitted to operate in Lindbergh Field's airspace, and PSA reported they had the conflicting traffic in sight, and PSA overtook while descending the climbing Cessna (on an extended downwind, RW27, for KSAN), and PSA's flight crew was named at fault (which I actually thought it was a 'system breakdown and not as much the cockpit crew of PSA)...the public outcry after that midair, was desiring to ban all general aviation airplanes from any airport where airliners operated too. Luckily since that tragic day, we got a TCA here and more vital, TCAS. I suspect had the lobbyist groups for general aviation (AOPA, NBAA, etc.) not been as politically savvy, the public could have gotten their way with Congress (or FAA could have bowed to them too). I cringe when I think of the new laws and systems coming out soon over Chelsea King and Amber Dubois, although all of us would have invited a mechanism to keep what happened to them, from occurring then and in our future.”
. . . my response to Round Three:
Man oh man . . . you got that right! Spot on! We seem to have a penchant for sensationalizing everything . . . partly for the titillation, partly for self-validation, partly for the moral projectionist that seems to be all-too-prevalent in far too many of us. Play that against our seemingly insatiable need to blame anyone and everyone other than ourselves along with our persistent requirement for instant gratification, and ouila, we yield these incessant convulsions to pass more laws in a vain effort to stop bad things from happening. If something bad happens, it must be someone’s fault; let’s pass a law.
PSA182 is an excellent example. I would also offer TWA800 as another worthy example. There are many others.
Returning to the original topic, my point was, animals like Gardner do not fear the law (if that); they have little to no morality or respect for anyone other than themselves; and, as such, they give off multitudinous precursor signals that we choose to ignore. I do not see more laws as being the answer. We need a paradigm shift in our approach to aberrant behavior as well as our caring enough about our communities to see the “signs” and intervene before a 17yo girl suffers mercilessly at the hands of such predators. Further, with our prudish need to classify anyone outside our “norm” as a sex offender, we wind up seeking changes to the law to incarcerate “sex offenders” for life. While such actions may make us feel better and may well have stopped Gardner from his dastardly deed(s), they also destroy many lives of good citizens who simply chose to live their lives outside the “norm.” I risk others thinking that I am defending Gardner; all I can do is assure you and anyone else who reads these words that I want Gardner punished to the fullest extent of the law; I simply do not want other citizens punished for his crimes.

Chancellor of Britain’s High Court Sir (Robert) Andrew Morritt, CVO, ordered record company EMI to stop selling downloads of Pink Floyd’s music as individual tracks rather than as part of the band's original albums in toto, to protect “the artistic integrity of the albums.” This little news item may be buried deep in the bowels of this week’s edition of the Update from the Heartland, but the potential impact on the music business could be profound. We should watch how this ruling reverberates within the industry.

News from the economic front:
-- China's National Bureau of Statistics reported the country’s inflation rate rose 2.7% in February, up from January's 1.5% rate, raising the chances that Beijing might need to cool the recovery in the world's third-largest economy, just as the rest of the World struggles with legs under the economic recovery.
-- The U.S. Commerce Department reported the trade deficit narrowed to US$37B in January, with a 1.7% decrease in imports against a 0.3% decline in exports as the volume of oil imports hit its lowest level in more than a decade.
-- The Labor Department reported the number of U.S. citizens applying for jobless benefits decreased by 6,000 to 462,000 last week, while the total claims lasting more than one week rose and the four-week moving average of new claims also climbed. It seems we have a long way to go before we can claim to have recovered from the Great Recession.

-- The Commerce Department said retail sales rose slightly better than expected by 0.3% in February, as consumers apparently defied major snowstorms. The overall gain was held back by a 2% decrease in auto sales, due in part to Toyota’s recall problems. Excluding automobiles, retail sales rose 0.8%, far better than the 0.1% increase that economists had forecast outside of the auto industry.

Comments and contributions from Update no.429:
Comment to the Blog:
“Health care ‘reform’ has become a political point rather than a potential benefit to uninsured Americans. As far as I know, the current bill lacks two necessary things. The obvious one is a public option. The closest thing I've heard is an expansion of Medicaid. I know some people who are on Medicaid. Many doctors don't accept Medicaid at all and it doesn't cover much. Beyond that, Medicaid is administered by the states, which makes for uneven quality at best. Not good.
“The other shortcoming is that the current bill does not remove the health insurance companies' antitrust exemption. If any group has ever proven unworthy of such an exemption, surely health insurance companies are that group, yet the exemption continues. How could that be?
“How that could be, most likely, is that it's not about worthiness but about campaign financing. Whatever position one takes on term limits will not matter much so long as corporations and a few very wealthy individuals fund political campaigns. In the case of health insurance reform, even the ‘maverick’ Dennis Kucinich (D-OH) has taken over $100,000 from the health insurance industry; many others got much more. The campaign financing issue demands grassroots pressure more than any other. Left to their own devices, neither the Democrats nor the Republicans will change the system, regardless of rhetoric. They are the beneficiaries. One party in, one party out, no change. Third and fourth parties can present good ideas until they are blue in the face, but with no large-scale funding they will not compete with Democrats or Republicans. It's all very cozy for those already in power and those they choose to bring along for the future. Nobody else gets a voice. The cost to the nation is that we live in a plutocracy. Those who pay, play.”
My reply to the Blog:
Health care reform is truly a sticky wicket. I do not have experience with Medicaid, and only Medicare indirectly with my Mom; she had supplemental insurance that she paid for, and I must say the combination served her fairly well. My retired military friends are on Tricare (Jeanne and I will transition to Tricare once I decide to retire). They seem fairly content with the service they receive. There simply must be a better way than what is being proposed, but we definitely have not found the way as yet.
Re: health insurance company, anti-trust exemptions. Spot on! If there is one thing that would improve service, it would have to be competition. Unfortunately, as we learned to regret with the banking industry, we must now guard against insurance companies becoming “too large to fail,” and we must have provisions for protection of patrons of “failed” insurance companies, if we are going to achieve anything close to universal protection.
Ethically, morally, and intellectually, I want every American citizen and especially every child to have the best health care we can provide. Yet, on the flip side, if we did such a thing, where would the incentive be to improve one’s lot in life, to seek jobs that provide good health care coverage? In the larger ideological sense, this is classic confrontation between capitalism and communism, between incentive and protection, between freedom and regulation. Neither extreme seems particularly attractive in the real-world, practical sense. If so, then where do we draw the line?
We will be debating the corrosive consequences of money for a very long time, and the topic is certainly not new. The Founders and Framers of this Grand Republic eloquently articulated their fears regarding the deleterious effects of money and wealth 230+ years ago. Yet, here we are . . . still struggling with trying to find balance, equality, tolerance, acceptance and stability.
. . . a follow-up comment:
“I'll pick out one piece of your response and comment on it. If we provided at least adequate health care to every American, productivity would increase due to the decrease in sick days and the reduction in preventable disability. Do you (or does anyone) really think that poor health leads to more or better work? Poor health makes it less likely that they will work hard because it reduces the ability to work. Motivation comes in a distant second to ability in most jobs, particularly in better-paid fields.”
. . . and my follow-up reply:
I cannot argue with your point. Yet, as always, the challenge is balance. Sure, we can help many folks who deserve assistance, then what do we do with those who choose to abuse the system. We have discussed this before, perhaps we should implement a quid pro quo system, e.g., to use an extreme example, perhaps the meth abuser could have government-provided health care in return for submitting to a controlled environment where he cannot hurt anyone else other than himself. One of many difficulties in such circumstances . . . in my example, I suspect the meth abuser could care less about health care. So, we return to definitions, thresholds, conditions and expectations. I want to help those who seek help and will benefit from help, however redistributing wealth without conditions or controls is simply a recipe for destruction, in my most humble opinion.

Another contribution:
“Is it any wonder why I have absolutely no respect for the idiot who currently sits in the Oval Office. Obama and his minions are just determined to shove this health care bill down our throats even though the majority of Americans don't want it. This guy just doesn't get it. You work for us! And if he will not respect the people he serves, then I refuse to show any respect for him, and the jackasses in Congress who I wouldn't trust to run a checkers tournament.”
My response:
Barack is no more an idiot than George “Dubs.” We can disagree without being uncivil. We can argue on various aspects of any topic and still seek a stable compromise. In the President’s defense, throwing the whole lot out and starting over is simply a political recalcitrance rather than any semblance of an attempt to find compromise. Barack & the Dems are pushing their agenda just as Dubs & the Repubs pushed theirs when they were in the majority. Let us recognize reality and seek the compromises we deserve.
. . . with a follow-up comment:
“I dig what you're saying about disagreeing without being uncivil. Unfortunately, I am so hacked off right now with the behavior of Obama and the Congressional leadership and their blatant disregard for the will of the majority of the people they work for (a concept which doesn't seem to penetrate their heads) that I couldn't care less if I hurl insults their way. Respect is a 2-way street. If they won't give the American people any respect, why should I give them any? I wish it wasn't so, but that's the point I'm at right now. I so can't wait for the next round of elections here in Arizona to give John ‘I Can't Run A Presidential Campaign To Save My Life’ McCain his walking papers, then we can get rid of our useless Representative Anne Kirkpatrick.”
. . . and my follow-up response:
Yeah, you are entitled and welcome to be angry. I am not a happy camper, either. I tried not to be angry with the last administration, and I am trying not to be angry with this one. At the moment, I give Barack more credit than other folks and perhaps more than I should, but I want him to be successful.

A different comment:
“I like your comments on the various genocide condemnations. Well spoken!
I agree with your reader on the term limits conundrum. Had not thought of the staffers influence bit.”

A different contribution:
“Hope all is well sorry we haven't seem to hang out for awhile, I hope we can change that. In the interim I thought, what the heck let's engage in some verbal judo regarding how I read your interpretation of the Miranda cases. Or maybe I should say the theme I felt from your words. So with that said, let us begin...
“While I have not read the full opinions on either Powell or Shatzer, I believe I got the broad strokes of the opinions. That being said, as I read Powell the case hinged on Florida police stating something to the effect of you have the right to contact a lawyer prior to questioning (instead of the common ...contact a lawyer at any time) and you may stop answering questions at any time. Defense believed this was not an informative enough statement that citizens needed to hear they have the right to their lawyer at any time. With that I say shame on them for assuming the population consists of the lowest common denominator. I find it interesting that citizens are required to know every other law in this republic, as ignorance of a law is no defense against it. That being said it is strange to me that these are the only laws that are laid out for our suspects. In addition to this, popular culture has solidified 'cop culture' and every John on the street knows exactly what I am supposed to say to them, probably better than I do. They know their rights and have for some time, I see Miranda as more of a loophole device these days for the overturning of an otherwise solid case. I believe this was an important ruling and was impressed by the Supremes reluctance to spell out what needed to be said or censure the L.E. community. I have found the break in tempo given my suspects, by reading Miranda, is sometimes all the time they need to realize keeping their mouth shut is typically in their best interests. Tempo is King when looking for a confession, if they are on the ropes so to speak breaking their tempo will typically slaughter my case. I know this is a slippery slope as where is the protection for the less intelligent among us, i.e. individuals w/ disability or mental retardation, and who is their advocate? In short, I do not know how to solve that. I will say that I am reluctant to build laws for the land based on a person that may not even understand the sentence. While I tend to believe Miranda is nearing the end of its run, I do not think the high court will overturn it any time soon.
Regarding Shatzer, in brief I cannot believe this one made it as far as it did. While he remained in custody (Department of Corrections) during the break, there was a significant break between the first and second reading of Miranda. This should be plainly obvious to have allowed the defendant ample time to consider his position, as the court rightly decided that his return to general population constituted the sufficient break in custody required by prior cases. Also, I was always given the standard of approximately two weeks for the period constituting a break. Lest we forget this citizen was given a SECOND reading of the warning and had he felt his needs were best served by silence this warning provided him the time to consider that.
“As I stated earlier, while I have not read the dissenting opinions on either Powell or Shatzer I thought I remember seeing several liberal justices voting in favor of these rulings. I do not view these as the further empowerment of the State, which is how I felt the theme of your paragraph implied, instead I felt this was the continued balancing of the scales of justice. While there are many recent rulings and trends under the Roberts court, which have me nervous if not outright scared, this is not one of them. Either way, that is just my opinion and I could be wrong.”
My reply:
Thx for taking the time to express your view of Powell and Shatzer. You have the facts correct as well as the essence of the two rulings. However, my meager attempt at succinct alternative perspective appears to have been insufficient for the purpose of this debate.
My point in Powell grew from the Court’s criticism of the Tampa Police version of the Miranda warning, and yet they stopped short of declaring it insufficient. I think the Court accurately represented the way most of us common folk would take the Tampa version, i.e., there was no mention of having a lawyer “present” during questioning. Personally, Justice Stevens offered a compelling and persuasive argument in dissent, but the essence of his position was deference to the state in judging the subtlety of the Miranda interpretation. The Court even drew specific comparison between the FBI Miranda warning and that used by the Tampa Police.
In Shatzer, prima facie, the Court argued over the arbitrariness of the 14-day break in custody guideline establish by the ruling and the interpretation as to whether incarceration qualified as a break in custody. Shatzer was indeed a very fine line, while Powell was much clearer to me.
In both cases, the state courts ruled in favor of the defendants and a stricter interpretation of the 5th Amendment and Miranda, and the Supremes chose to reject the states’ more restrictive interpretation. In both cases, I disagree with the decisions, and in fact, I see both rulings as lessen the protections afforded us lowly citizens against the awesome power of the State – that is my point – thus, tipping the scales slightly more out of balance.
I am truly curious as to why you feel Miranda “is nearing the end of its run?” If so, what will replace it? You are undoubtedly correct and in a far better position to judge than me regarding the knowledge of criminals in the custody of law enforcement. However, the definitions of our rights are not there to protect the criminals, but to protect ALL citizens and especially those falsely accused by over-zealous law enforcement. I continue to believe that Miranda is vital as well as viable, and I see little value in giving the State even more power. A confession is and must be the informed choice of the individual, not an objective of the State.

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