26 July 2010

Update no.449

Update from the Heartland
No.449
19.7.10 – 25.7.10
To all,

"In the first place, it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any."
--James Madison, Federalist No. 14, 30.November.1787

The follow-up news items:
-- President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act [PL 111-203]. Somehow, a mysterious process changed the law’s title from Restoring American Financial Stability Act, as reported in the Update last week [448] and as passed by Congress. The bill is now law, and we can only hope it works as intended.
-- As the Deepwater Horizon (DH) investigation continues [442], little tiny trickles of information reach public light. Former DH chief electronics technician Michael Williams said he understood that the rig had been operating with a key alarm system in an “inhibited” mode for a year to prevent false alarms from disturbing the crew during the night. The system was designed to alert the crew and prevent combustible gases from reaching potential sources of ignition. If confirmed, the disclosure does not bode well for those who decided and enforced the disabling of the alarm system. The image is darkening for BP.

I laud and appreciate the efforts of journalists who try mightily to inform the citizenry on important societal topics.
“Top Secret America: A hidden world, growing beyond control”
by Dana Priest and William M. Arkin
Washington Post
Published: Monday, July 19, 2010; 1:53 AM
http://link.email.washingtonpost.com/r/RRHKUP/ZTPX3/8A7E33/2D5IPU/FNGHE/B7/h
The multi-part essay will probably spark a myriad of branched debates to include freedom, security, control, oversight, restraint, ad infinitum. I do not dispute the facts as presented by the authors. Also, I do not question the overall tone that raises alarms about the extensive use of contractors at various levels of intelligence operations, the pervasive allegedly uncontrolled growth, and apparent paucity of any independent oversight. There are many elements we must improve. Yet, I urge caution to avoid overreacting to such exposés regarding the Intelligence Community. The United States has chosen to rely upon primarily technical means for three decades. A correction has been long overdue. In the main, the expansion of our intelligence means and methods, especially our Human Intelligence (HumInt) capability, is essential to the prosecution of a largely ideological war fought at an individual level. The highlight on the Post exposé is the potential for abuse, given the lack of efficient independent oversight. That aside, congratulations, Dana and William!

The Wall Street Journal reported that four of the world's largest oil companies – Exxon Mobil, Chevron, Royal Dutch Shell and ConocoPhillips – are creating a strike force to address deep water oil well accidents in the of the Gulf of Mexico, in a billion-dollar bid to regain the confidence of the Obama administration after BP's Deepwater Horizon disaster. A joint venture will be formed to design, build and operate a rapid-response system to capture and contain up to 100,000 barrels of oil flowing 10,000 feet below the surface of the sea. Unfortunately, it took a disaster to do what should have been done decades ago. Hopefully, the lessons learned will make future accidents less likely and spills more quickly contained.

Representative [Charles Bernard] “Charlie” Rangel of New York may face censure or expulsion when he stands trial before the House Committee on Standards of Official Conduct, reportedly for a multitude of ethics violations. I am certain the Democratic Party and the House leadership would have preferred Charlie just resign quietly rather than have a public ethics trial so close to the mid-term elections. Oddly, following the footsteps of “Dollar Bill” Jefferson of Louisiana [399], Rangel announced a bid for a 21st term, and his primary opponent is Adam Clayton Powell IV, grandson of Adam Clayton Powell Jr., whom Rangel defeated in 1970 and whom faced his own ethics violations and whose case reached the Supreme Court – Powell v. McCormack [395 U.S. 486 (1969)] [368]. Small world, ay!

A friend, classmate and frequent contributor to this humble forum sent the link to this important, relevant article:
“Former MI5 chief demolishes Blair's defence of the Iraq war”
by Andy McSmith
The Independent [of London]
Wednesday, 21 July 2010
http://www.independent.co.uk/news/uk/politics/former-mi5-chief-demolishes-blairs-defence-of-the-iraq-war-2031289.html
His comment:
“From the Independent – this was the lead story on BBC and Sky News the other day. Not much in the U.S. media, which is typical, but this was striking testimony from the former head of MI5, British counterintelligence and security agency.”
My reply:
Interesting. The word “demolishes” is a rather exaggerated word-choice, and an over-stretch of Manningham-Buller's extracted testimony. That seems to be the modus operandi for the Press these days.
FYI: Manningham-Buller is none other than former Director General, Security Service (MI5), Baroness [Elizabeth Lydia “Eliza”] Manningham-Buller of Northampton, DCB – the rough equivalent of the Director of the Federal Bureau of Investigation (FBI).
His follow-up comment:
“More from Tom Ricks
“‘Meanwhile, here is the hot-off-the-press testimony on the Iraq invasion of former British intelligence bigwig the Baroness Eliza Manningham-Buller. Basically she megadittoes: “we regarded the threat, the direct threat from Iraq as low.” As for al Qaeda and Iraq, she said, “there was no credible intelligence to suggest that connection and that was the judgment, I might say, of the CIA. It was not a judgment that found favour with some parts of the American machine, as you have also heard evidence on, which is why Donald Rumsfeld started an intelligence unit in the Pentagon to seek an alternative judgment."
“‘The BE M-B added that some unnamed parties made much too much of “tiny scraps” indicating some contact between Saddam Hussein and AQ.
“‘Lady M-B also mentioned that she went to see Paul Wolfowitz once to tell him that disbanding the Iraqi army and banning Baathists from public life was a mistake:
“SIR RODERIC LYNE: But you didn't convert him?
BARONESS MANNINGHAM-BULLER: Not a hope.”
“‘One of the themes of the British testimony has been the pernicious influence of “special advisors”-people who stepped in and mixed the policy and intelligence roles. I think there probably is a good PhD dissertation to be done on this, looking at the situations in both the British and American governments. If I had time I would do it, but I already am deep into my work on my next book.’”
My follow-up reply:
MI5 is the internal security service. Iraq was never a direct threat to internal security of either the United Kingdom or the United States. It certainly was a threat to British and American citizens and interests. I wonder what the testimony of Sir Richard Billing Dearlove, KCMG, OBE, (1999-2004) would be to the same questions? That aside, the Bush administration made multitudinous mistakes in the prosecution of the Battles for Iraq and Afghanistan; I offer no excuses or support for all those mistakes. Yet, Saddam’s Iraq and the Taliban Afghanistan were both threats to Allied interests on multiple levels and for widely disparate reasons – threats nonetheless. Perhaps the Press’s spin on Manningham-Buller’s testimony may well be correct and as it seems; if so, then I must bow to her service and knowledge, but we all have seen what can happen with selective editing.

I think we all knew this day was inevitable, so here it is. A pair of Federal district court cases in Massachusetts challenged the Federal Defense of Marriage Act of 1996 (DOMA) [PL 104-199; 1 U.S.C. §7]. The first was brought by the State of Massachusetts against the United States – Massachusetts v. United States [USDC MA 1:09-cv-11156-JLT (2010)] – contending that DOMA Section 3 violated the 10th Amendment of the Constitution in that DOMA infringed upon the sovereignty of the states and compelled the state “to engage in invidious discrimination against its own citizens in order to receive and retain federal funds.” In the second case, Nancy Gill, an employee of the United States Postal Service and resident of Massachusetts, wanted to add her spouse, Marcelle Letourneau, as a beneficiary under her existing employee benefit programs. Gill’s request was denied because the Federal Office of Personnel Management (OPM) did not recognize her marriage under DOMA. She filed suit that her rejection violated the equal protection principles embodied in the Due Process clause of the 5th Amendment to the Constitution – Gill v. OPM [USDC MA 1:09-cv-10309-JLT (2010)]. United States District Court Judge Joseph L. Tauro wrote a pair of companion rulings declaring DOMA unconstitutional on various grounds and granted summary judgment to both plaintiffs, which in turn destined these cases for higher court review. Judge Tauro highlighted key elements of the law that contribute to the public debate.
“The House Report identifies four interests which Congress sought to advance through the enactment of DOMA:
“(1) encouraging responsible procreation and child-bearing,
“(2) defending and nurturing the institution of traditional heterosexual marriage,
“(3) defending traditional notions of morality, and
“(4) preserving scarce resources.”
The judge affirmed plaintiff’s arguments against elements of Congress’s rationale in support of their claim. We, the People, could and should debate each and every point. The salient of the state’s case involves the Federal government’s ability to enforce its will on the states via the Spending Clause [Article I, § 8].
“In South Dakota v. Dole [483 U.S. 203 (1987)], the Supreme Court held that ‘Spending Clause legislation must satisfy five requirements:
“(1) it must be in pursuit of the ‘general welfare,’
“(2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation,
“(3) Conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation,
“(4) the legislation must not be barred by other constitutional provisions, and
“(5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.’”
The essence of whether Congress or any legislature has the authority to impose on the private choices of an individual citizen, especially in this case, rests on the definition, boundaries, constraints and dictates of the “general welfare.” The judge concluded, “Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.” Judge Tauro did not accept the government’s demonstration of the “general welfare.” Therein lays the fundamentals of our public debate.
Aside from the law, there are elements of these companion rulings worth noting. The judge argues from an assumed position that validates the plaintiffs’ claims. He assails the Federal government’s obvious intrusion upon the states’ authority to regulate marriage. He does not address the implicit conflict between states, i.e., marriage recognized in one state may be constitutionally prohibited in an adjacent state. There is no definition of reciprocity and consistency in this instance. The larger, as yet, unasked question is, do the states have the authority to discriminate against their residents in what is predominately a private, non-injurious relationship? The clear element is benefits, which in turn raises the question of purpose in those benefits. The answers will always center upon how laws are administered and how they apply to ALL citizens.
While I support equal rights for all citizens regardless of the social factors, we must debate the boundaries or constraints. I believe “marriage” should be a matter of personal private choice. Extending that argument, polygamy would be acceptable. After all, choices of private citizens in the relationships they seek are a matter of the private domain with very limited public intrusion. Unfortunately, there are always those folks who seek to take advantage of generosity as we learned in the Warren Jeffs case [231]. At the end of the day, we must deal with those who impose upon the public domain by their private choice; those who do in small ways diminish the freedom of each of us, even if ever so slightly. Nonetheless, we should and must confine ourselves to the public domain, not the private choices of citizens.

After the District of Columbia recognized non-heterosexual marriages in other states [418] and then permitted non-heterosexual marriages within the District, a group of residents filed a petition for a voter referendum to override the District government. The district, the appeals court, and Chief Justice Roberts, sitting as Circuit Justice, all refused to stay the effectivity of the District law. The Appeals Court was ordered to hear the appeal as a complete panel – Jackson v. District of Columbia Board of Elections and Ethics [DCCCA no. 10-CV-20 (2010)]. The narrowly divided court affirmed the Board’s authority to reject the citizens’ referendum initiative. The important element in this case, beyond equal protection under the law for all citizens, grows from the court’s finding that other citizens do not have the right to impose their views, opinions, rules, or morals on other citizens. The choices we make within the private domain are the essence of freedom. The private choices of other citizens may make us angry, may offend our sensibilities, but Liberty protects their right to their choices.

News from the economic front:
-- Moody's downgraded Ireland's sovereign-debt rating to Aa2 from Aa1, with a stable outlook, citing the government's loss of financial strength and the country's weakened growth prospects.
-- I do not usually report corporate financial performance, however one suggests a bellwether indicator for the recovery. Caterpillar’s revenue jumped 31% to US$10.41B as machinery sales increased sharply from last year. Caterpillar posted a profit of US$707M ($1.09 a share), up from US$371M a year earlier. The company raised its full-year earnings forecast again, now projecting $3.15 to $3.85 a share, up from $2.50 to $3.25, as it lifted the low end of its sales prediction by $1 billion. A good sign, it seems to me.
-- European bank regulators completed a system-wide stress test and reported that 7 of 91 European banks failed the test under the worst-case scenario. However, the overall strong grades, awarded to the banking system in general, raised questions over whether the month long test was stringent enough to be judged credible in the light of the system’s struggle over the last several months as they stumbled from one crisis to the next.
-- The White House budget office predicted US$1.47T budget gap for 2010 – a slight improvement over the administration's February forecast – however, the outlook for 2011 is worse, primarily due to a drop in expected tax receipts (i.e., unemployment). The forecast for 2010 and 2011 will exceed last year’s record US$1.4T.

Comments and contributions from Update no.448:
Comment to the Blog:
“BP's new cap appears to be working, but I'll admit that the low pressure on it worries me. There are numerous engineering reasons why BP's engineers would know what pressure should exist. If the pressure is low, it seems to indicate that either oil or methane (which increases the pressure) is going somewhere other than up to the cap.
“I find it difficult to believe that Toyota drivers, but not other drivers, would be prone to mistaking the accelerator for the brake. Perhaps either (a) the analysis needs to be analyzed or, (b) the computerized systems providing the data are themselves flawed.
“I believe that the Second Amendment is the most poorly written sentence in the Constitution and that lawyers will argue it as long as the Constitution stands. In the meantime, I wish that believable figures existed on how many of those "self-defense" guns end up killing or wounding family members or other non-intruders who are shot by mistake or by people in drunken rages.
“Finally, the Arizona immigration law. This issue was settled in 1865.”
. . . my reply to the Blog:
Yes, the BP DH well cap appears to be working, although this morning there was a report of signs of seabed seepage of an unspecified nature, which could mean a subterranean leak or just natural seepage. Precisely correct, predicting the proper pressure given the events of the last 90 days would be a guess, at best, it seems to me.
Re: Toyota. I initially thought the same thing. However, imagine driving a Lexus after being bombarded by Press reports of stuck accelerators, then you inadvertently step on the accelerator but you think it is the brake. Instinctively and by pre-condition, you press harder because you “know” you are pressing on the brake with that damnable stuck accelerator. By your words, you are suggesting malfeasance by Toyota, i.e., they have intentionally programmed their data recorders to report the opposite of what happened or to not report other events. I have a very hard time understanding why any company would do such a thing, or how a data recorder might malfunction in that specific manner.
I am all for collecting data, but let us also collect the data for those home invasions thwarted by armed residents and crimes averted by armed citizens. Your question presumes NO positive outcomes. Sure, we may be debating the words of the 2nd Amendment in perpetuity. However, as Justices Alito and Thomas attempted to do in McDonald, if we are going to parse words in critical review, then let’s understand the environment in which the words were written. Can any of us imagine the Constitution, or any Federal, state or local law, prohibiting a citizen from owning, holding and using multiple firearms from pistols to muskets or even blunderbusses for whatever purpose they chose in 1776, or 1787 for that matter? Most citizens lived in what would be at best rural, remote, often isolated conditions. I believe the assumption that every single Framer of the Constitution knew, expected and understood that possession of firearms for personal protection did not need to be codified, as it was a fundamental assumption of citizenship, especially in the new United States. Further, the militia reference in the preamble recognized that states would maintain militias beyond the national standing army and the general sparse population density, and thus citizens, of course, had a right to keep and bear arms. However, the preamble does not establish a pre-condition or qualifier on the right. As I tried to say in the Update, now we should debate reasonable constraints for the public good; prohibition is no longer a choice. The City of Chicago did NOT act in good faith, and acted in precisely the manner those who appreciate the benefits of firearms fear most.
Oh my, the Arizona law . . . settled law since 1865 . . . I do not agree. If you are referring to the Supremacy Clause (Article VI, Clause 2), yes, it has been in the Constitution (1788) and reinforced by the 14th Amendment (1868). However, there is also a principle of law that an un-enforced or even under-enforced law has less weight that a law vigorously enforced – the thought being if the Executive does not see fit to enforce a law, why should the Judiciary. It can be argued the Federal government has only offered token enforcement; so, what are the border-states to do? They have born the brunt of lax enforcement. They have begged, pleaded, urged and done everything they can do to convince the Federal government to do more . . . to no avail. Perhaps this case will finally force the issue.
. . . round two:
“My only follow-up items:
“(A) Given all the events, there's some possibility that BP might not know the flow pressure escaping previous efforts to repair the problem. There is, however, every reason to believe they would know the correct full pressure of the well. They would have calculated that, based primarily on seismic data, before drilling in order to write specifications for pipe, concrete, etc. They know whether or not the correct pressure is on the current cap; so does the government, guessing from events.
“(B) I never said that Toyota knowingly mis-programmed the system. I said that the system could be flawed. Depending upon the nature of such a flaw, it might operate on incorrect data and therefore report data incorrectly. Programmers are no more perfect than other human beings.”
. . . my reply to round two:
(A) Measuring the exact well head pressure and flow rate was not handled well by BP from the get-go, and the law pre-loaded them to avoid that measurement. Dynamic pressure is also different from static pressure, especially when you have multiple density fluids involved. Clearly, we do not have the methodical, established procedures in place for containing, controlling and investigating well accidents as we do with transportation accidents. Also, we bear witness to what happens with the specter of litigation and prosecution enters the domain of engineering investigations. Finding the truth will be extraordinarily more difficult as the players withdraw to protect themselves. We need a process similar to the NTSB for investigating well and mining accidents.
(B) Well, sure, mistakes are made in design. We deal with it every day in aviation – sometimes significant, mostly trivial. Perhaps Toyota did not test the recorders sufficiently to detect potential design flaws, but I’ve seen not even a hint of such flaws. There is also the possibility the recorders perfectly recorded the events in question. In our industry, we deal with operator errors and bad decisions far more than we face serious design flaws . . . largely because of extensive testing during development and certification. The automobile industry is nowhere near as regulated as aviation, but they are still quite methodical in their development process.
. . . round three:
“Conservatives invoke ‘the specter of litigation and prosecution’ often. That is what's supposed to protect the rest of us from careless greed. Obviously, there was not enough of that up front to protect the ecology and people of Louisiana, Mississippi, Alabama, Florida, and Texas from BP. This is not simply an engineering laboratory exercise; real people and the real environment are suffering tens of billions of dollars’ worth of damage.”
. . . that shall be the last word on this thread for now.

Another contribution:
Quoting from Update no.448:
"Guns are no different from any other implement that has the potential to cause injury – car licensing, boat licensing, board approval to practice medicine or law or any of a myriad of professions."
“While I wholeheartedly agree with your position, I had to point out, academically, that in the above quote from your write-up you had inadvertently made the argument for Chicago and the anti-gunners, and exhibited their flawed argument as well. If guns are no different than these other listed things, then why can’t the states apply their police power to them??? The answer is that your postulate is wrong. Guns are “different” – none of the other examples you give have their own specifically enunciated clause in the Constitution protecting citizen’s rights to them. While citizens may have the right to an attorney, nobody has the right to be an attorney, without careful government perusal. The 2nd Amendment says that because [guns use by] militias is so important to the defense of the republic, that we shall not allow government to prohibit citizens right to have guns. Pretty clear and direct, now all we have to do is balance, constitutionally, the difference in technology between 1790’s flintlocks and today’s full automatic, drum fed cop-killers and .50 cal sniper rifles that can kill an opposing politician a half mile out. The problem is that the very weapons I want my militia to have are the very same ones I don’t want the drug cartel to have. Quandary, no?”
. . . my response:
Well, indeed it does in an academic sense. Actually, the law as written was tolerable, and perhaps even acceptable, if it had been reasonably administered . . . but, it was not executed in good faith. What happened to Otis McDonald in Chicago is precisely why so many citizens do NOT trust government.
Quandary, yes! Nonetheless, the issue is not the object but the use of the object. The automobile is not inherently a threat. Operated properly, in accordance with the rules and respect for other people, the automobile is safe & effective transportation. However, in the hands of an intoxicated or impaired person, the automobile becomes a lethal weapon and a threat to all proximate citizens. As I posed the question in the Update, a pistol is acceptable; a thermonuclear device is not. Now, we must draw the line, and the line may vary depending upon environment, e.g., city night club or virgin forest.
What we do know is, the City of Chicago violated Otis McDonald’s fundamental right to keep and bear arms. I will add that it was not the law that inflicted the violation but the application of the law by the Executive. We must find a reasonable and proper balance. Toward that end, let us focus on injurious actions by citizens rather than inanimate instruments of those actions.

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

19 July 2010

Update no.448

Update from the Heartland
No.448
12.7.10 – 18.7.10
To all,
The follow-up news items:
-- The Swiss government has rejected an extradition request by the United States for the fugitive film director Roman Polanski [409] on a charge of having sex with a 13-year-old girl in 1977. Swiss Justice Minister Eveline Widmer-Schlumpf announced the government’s decision reflected doubts about whether Polanski had served out his original sentence. Some necessary U.S. legal documents related to that sentencing were not made available to the Swiss. The lack of those documents contributed to the decision to deny the extradition request. Polanski is a free man, although not likely to travel to the United States or other countries that might consider another attempt at extradition. Frankly, I hope this closes the issue.
-- In the shadow of the 5th Circuit’s affirmation of the district court’s injunction against the government’s drilling moratorium [445], the Interior Department has issued a new offshore drilling moratorium, suspending activity based on the type of drilling and blowout preventer rather than water depth. My opinion of the government’s action has not changed.
-- BP installed the new cap system on the Deepwater Horizon well blowout preventer [442]. On Thursday, they closed the valves and finally stopped the flow for the first time since the accident and disaster began. Well pressures are not at high as expected, but they are reportedly stable and rising gradually. This tragedy is a long way from over, but perhaps we have seen the end of the beginning. The new well cap will also help engineers confirm and control the relief well operations to permanently seal off the well. At least the Federal investigation is progressing. One day, we shall know why, and hopefully, we shall learn what we need to do to prevent another occurrence.
-- Apparently leaked findings of a U.S. Department of Transportation analysis of dozens of data recorders from Toyota vehicles involved in accidents blamed on sudden acceleration [430] suggest that at the time of the crashes, throttles were wide open and the brakes were not engaged. The results suggest that some drivers of Toyota and Lexus vehicles mistakenly floored the accelerator instead of the brakes . . . as I was suspicious from the get-go. This is precisely why I advocate so strongly for calm, methodical, engineering investigation to determine root cause(s) before knee-jerking to highly injurious reactions that rarely have any hope of addressing the real problem.
-- Federal Bureau of Investigation counterintelligence investigators had been investigating a 23-year-old Russian man since last fall when his name surfaced in a decade-long espionage investigation [446]. The young man was detained and became the 12th person implicated in the federal probe into Russian illegal foreign agent network. He was quickly deported.
-- Congress finally passed the massive financial reform legislation – Restoring American Financial Stability Act of 2010 [H.R.4173; Senate: 60-39-0-0(1); House: 237-192-0-4(2)] – which the House had previously passed [417]. The bill has been presented to the President. The White House is planning a big signing ceremony next Wednesday. From the Library of Congress summary, the bill “establishes the Financial Services Oversight Council, consisting of the heads of specified federal financial regulatory bodies and chaired by the Secretary of the Treasury.” As I understand it, the Council is the financial version of the National Intelligence Council. The new law also empowers the Federal Reserve Board to act as the agent of the Council for various financial institution oversight functions. While the legislation did not break-up the massive banks and investment houses, it does attempt to provide more supervision with the expectation of preventing the insanity of unbridled, wildly optimistic credit and lending that contributed to the financial system meltdown two years ago. Notably, the act does not address the contributions of Fannie Mae and Freddie Mac to the financial crisis. Hopefully this new law will do what it is intended to do; the proof may not be realized for many years.

An interesting perspective on the contemporary intelligence biz, if you are curious:
“Russian Spies and Strategic Intelligence”
by George Friedman
Strategic Forecasting, Inc.
Published: July 13, 2010 | 0844 GMT
http://www.stratfor.com/weekly/20100712_russian_spies_and_strategic_intelligence?utm_source=GWeekly&utm_medium=email&utm_campaign=1007013&utm_content=readmore&elq=3e6edf49c9a449a3a6362a8cde628bee

Another important intelligence article:
“Former NSA executive Thomas A. Drake may pay high price for media leak”
by Ellen Nakashima
Washington Post
Published: Wednesday, July 14, 2010
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/13/AR2010071305992.html?wpisrc=nl_headline
Former National Security Agency (NSA) senior executive Thomas A. Drake [435/6] has been indicted on charges of unlawful retention of classified information, obstruction of justice and making false statements – United States v. Drake. The Nakashima article offers a small glimpse into Drake’s alleged betrayal of national trust and the moral dilemma faced by governmental agents. The public information suggests Drake was one of the major, if not sole, government agents who leaked classified information to the Press. If convicted, I trust he will be a guest of the United States for many years and perhaps the remainder of his natural life. What he is alleged to have done is NOT the way to deal with the moral dilemma often faced by those who have access to highly sensitive government information.

Now we come to the oft-delayed review of McDonald v. Chicago [560 U.S. ___ (2010); no. 08-1521] – the Supreme Court’s latest Second Amendment ruling, the fundamental right to keep and bear arms. This is a follow-up case to District of Columbia v. Heller [553 U.S. ___ (2008); no. 07-290] [342]. Where do I begin?
For those who have no interest in the central issue / question or the law surrounding it, let me simply say this is an extraordinary ruling in many profound ways far beyond a citizen’s constitutional right to keep and bear arms. Succinctly, McDonald affirms the constitutionally protected, fundamental right of citizens to keep and bear arms for private self-defense of person and property. The legal clash is enthralling. The history is fascinating, yet at the end of the day, I suspect it is hard to overstate the importance of this decision. Now . . . onto the case itself . . . for those so inclined.
In 1982, the City of Chicago established a jurisdictional law requiring registration and licensing of firearms. After the Supreme Court’s Heller decision (2008), American citizens and Chicago residents Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson filed suit against the city, claiming the city’s law prohibited them from keeping handguns in their homes for self-defense in violation of the Second Amendment. McDonald and his petitioners assert the classic fear far too many citizens share. The Chicago law provides for registration and licensing of firearms, prima facie, not particularly offensive; however, process administrators disapprove their license applications, effectively prohibiting private ownership of firearms. Unlike Heller, which dealt with the application of the law to Federal jurisdictions, the McDonald case addressed the far broader application to the states. Associate Justice Samuel Alito wrote the opinion for the narrowly divided Court, and concluded, “We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” The key word in his conclusion is “incorporates.” In terms of constitutional law, the Court extended the 14th Amendment’s Due Process umbrella to the 2nd Amendment, and implicitly to the remainder of the Bill of Rights, thus making the right to keep and bear arms applicable to the states, and thus the application of the Chicago law unconstitutional. Once again, what comes after the Court’s decision was the most engaging, informative and illuminating. Antonin the Impaler devoted virtually his entire concurring opinion to refuting the Stevens’ dissenting opinion – quite unusual for Antonin and quite below his standards, I must add. Associate Justice John Paul Stevens said, “While I agree with the Court that our substantive due process cases offer a principled basis for holding that petitioners have a constitutional right to possess a usable firearm in the home, I am ultimately persuaded that a better reading of our case law supports the city of Chicago.” Yet, one sentence among all that Stevens wrote to explain his judicial opinion struck me like a 2x4 up side the head. He said, “[F]irearms have a fundamentally ambivalent relationship to liberty.” His one sentence brightly illuminates mountains regarding the perspective of those citizens who sees any instrument that fires a projectile as inherently evil. To be blunt and frank, I am gobsmacked . . . to think an intelligent man could believe, yet say, such a thing! Really!?! All told, to my humble lay mind, the real gem in this ruling has to be Associate Justice Clarence Thomas’ unusually long and expansive concurring opinion. My impression suggests that Thomas is the least prolific of the nine justices, and when he does choose to offer his opinion, his reasoning is rarely compelling and always succinct. This Thomas opinion stands out from all the others I have read and from his colleagues in this specific case. He wrote, “I conclude that the right to keep and bear arms applies to the States through the Privileges or Immunities Clause, which recognizes the rights of United States ‘citizens.’ The plurality concludes that the right applies to the States through the Due Process Clause, which covers all ‘person[s].’” This written ruling was a treasure trove of history and breadth of opinion on fundamental and constitutional rights. The Court concluded, “In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.” The bottom line, the Bill of Rights applies directly to the states.
The McDonald ruling left me with one odd, overarching impression. It read like a doctoral dissertation on the Bill of Rights, including the 2nd Amendment, as if they had been storing up arguments for the right moment . . . just this opportunity. The decision hung more on the 14th Amendment. They repeatedly referred to Chief Justice John Marshall’s reasoning in Barron v. Baltimore [32 U.S. {7 Pet.} 243 (1833)] [335] that the Bill of Rights applied to the Federal government, not to the states. Then, by the 14th Amendment (1868) ratified after the cataclysmic Civil War, the umbrella of the Bill of Rights expanded to encompass the states. To me, it was that one fundamental shift in jurisprudence that helped us realize the Liberty envisioned by the Founders / Framers. A citizen’s right protected by the Federal government but denied by a state government can hardly be called a right. It has taken us 234 years to achieve this monumental recognition. While I laud the Court’s conclusion, I must emphasize the reality that no right, regardless of how fundamental, is boundless or without constraint. Justice Stevens took a few miniscule snippets from John Locke’s “Second Treatise of Civil Government” (1689) to punctuate his observation (ambivalence). The section he chose was Section 129 [Chapter IX – Of the Ends of Political Society and Government.]. “The first power, viz. of doing whatsoever he thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature.” While I disagree with Stevens’ application, I do agree with his point. Now, we must get on with defining the reasonable boundaries of a fundamental right.
Limiting firearms to the home or private property may be the basis of this case, but it is hardly a reasonable position, yet ultimately, even that precept must be challenged. Am I to be made criminal for transporting a pistol from one private residence to another private residence, or from a private residence to a firing range for practice? Can I have a pistol in my Recreational Vehicle (RV) as I travel from state to state in this Grand Republic? If a pistol is acceptable and a thermonuclear device is not, then what or under what conditions defines the limit of private ownership?
I think we can all understand and appreciate the position of each camp from guns-galore to no-guns. Like war, no sane person wants war and likewise no sane person wants another innocent citizen injured for any reason and least of all by gunshot. Yet, the issue, as with so many social questions, has become so polarized that neither side trusts the other. Guns are no different from any other implement that has the potential to cause injury – car licensing, boat licensing, board approval to practice medicine or law or any of a myriad of professions. From the publicly available information, the City of Chicago represents a near perfect example of how a government, not acting in good faith, has so soured the well that a compromise solution is apparently beyond reach. Press reports suggest Chicago intends to defy or at least challenge the Court’s McDonald ruling, and if they do, we witness another demonstration of why so many citizen distrust government.
I confess. I am an open, unashamed supporter and defender of the Second Amendment. The Court arrived at the only conclusion I think they could or should have in this case. The Constitution applies to all citizens, not just select groups sanctioned or endorsed by the states. Yet, as I have written many times before, there are limits to all our rights, e.g., in exercising our individual rights, we do NOT have the right to threaten or endanger another person’s body or property. I believe a citizen has the fundamental right to own and use a pistol or rifle, but I do not believe a citizen has a right to a thermonuclear device of any size or configuration; thus, the limit or boundary of the Second Amendment lays somewhere between those extremes. To my opinion, the convenient metric would be caliber, or perhaps lethal range, as well as rate of fire, lethality, and report. Carrying and using a projectile weapon on open ranch land or virgin forest are hardly comparable to a crowded bar or nightclub. I can further argue that merely carrying a pistol in such a crowded environment could be threatening, since any proximate person could extract the weapon and fire discriminately for whatever unstable reason that might possess such potentially injurious behavior. The search for the boundaries begins.
After all this reading, researching, debating and struggle to understand all points of view on this issue and specifically on the Heller and McDonald rulings, I am left with a nagging dread . . . how fragile and vulnerable our freedom and liberty are and can be . . . probably because Justice Breyer’s dissenting opinion was the last section of McDonald I read. Our watch words should be: Semper Vigilans!

In the shadow of the McDonald decision, an appropriate, timely and illuminating opinion
“Supreme immodesty: Why the justices play politics”
by Stuart Taylor Jr.
Washington Post
Published: Wednesday, July 14, 2010
http://link.email.washingtonpost.com/r/U38ITL/VPQCV/V1T2XX/QC196S/IUH50/1G/h

The Fifth Circuit Court of Appeals added another notch in the mounting litany of case law surrounding battlefield combatant detainees – Bensayah v. Obama [5CCA no. 08-5537 (2010)]. In late 2001, Algerian Belkacem Bensayah was arrested along with five of his brethren in Bosnia on immigration charges. They were turned over to the U.S. Government in January 2002, and of course wound up at the Guantánamo detention facility. In 2004, Bensayah and his buddies filed for writs of habeas corpus, which were denied by the district court. After the Supreme Court’s Boumediene v. Bush [553 U.S. ___ (2008); no. 06-1195] ruling [340], their petitions were reinstated. The Fifth Circuit decided the Government had presented insufficient evidence linking Bensayah and the others to al-Qaeda, so they remanded the case back to the district court for the judge to decide “. . . whether Bensayah was functionally part of al Qaeda.” The public opinion was so heavily redacted that public assessment is not realistic. This case illuminates the extraordinary difficulties associated with bringing the battlefield to the courtroom. I suspect the district court will find insufficient evidence to directly link Bensayah and his colleagues with al-Qaeda, which will in turn set him free. As a side note, does anyone else find it rather strange and a bit odd that we used to hear about the travesty of Guantánamo virtually every day during the last administration, but stone silence during the current administration? If it was not for court cases like Bensayah, I would have sworn the battlefield combatant detention facility had been closed two years ago. What a surprise it would be to learn it is not so!

News from the economic front:
-- Moody's Investors Service downgraded Portugal's government-bond ratings to A1 from Aa2, as they believe the Portuguese government's financial strength will continue to weaken over the medium term. The struggle to recover continues.
-- The Commerce Department reported that June U.S. retail sales decreased 0.5% from the previous month, weighed down by persistent high unemployment. Excluding the automobile and gasoline segments, sales rose 0.1%. In May, sales fell a revised 1.1%. Economists surveyed by Dow Jones Newswires had forecast a 0.3% decline.
-- The Federal Reserve policy committee suggested that further monetary stimulus may be needed if the economy recovery shows more serious signs of stalling. The central bankers pulled back their U.S. economic outlook for the first time in more than a year, based on the soft job market.
-- The National Bureau of Statistics of the People’s Republic of China reported the country’s Gross Domestic Product (GDP) grew 11.1% in the first half of the year compared to the same period last year, after expanding 11.9% in the first quarter. Beijing appears to be weaning the country off its stimulus spending.
-- Goldman Sachs has agreed to pay US$550M – US$300M in direct fines and the remainder as restitution – to the Securities and Exchange Commission (SEC) to settle charges of securities fraud linked to mortgage investments sold to investors. The SEC divided in its decision to settle its landmark lawsuit against Goldman Sachs. While the levy may be a record single company fine, it is hardly a spit in the ocean for Goldman Sachs. As a side note, straight monetary fines for companies the size of Goldman do not seem sufficient as punishment for aberrant behavior. I’m just sayin’.

Comments and contributions from Update no.447:
Comment to the Blog:
“I'll comment on the BP effort. The figure I got in passing (probably Yahoo News) for the last cap is that it captured 15,000 gallons per day of the oil, with a current guess of 35,000 to 60,000 gallons of overall flow. Improving the capture rate by catching, say, another 15,000 gallons per day would be worthwhile, I think. I kept hearing yesterday that the new cap would take "a few days," but a scrolling headline on my local Fox TV station this morning says "within a week," which is more questionable if the headline is accurate.
“Those relief wells will be quite a feat if they succeed. The goal is to locate and alter a 7-inch pipe located under a mile of ocean and some additional amount of bottom at a horizontal distance I don't know. They will penetrate this pipe at a steep vertical angle, which makes for better plugging but more difficult cutting. We might as well not expect rapid results from that. I'm not a BP fan, but that's because of their lack of preparation and general corner-cutting. I don't want to let them off the hook at all, but let's admit that their current situation is very difficult.”
My reply to the Blog:
I think your unit of measure is off. I believe the currently accepted full-on leak rate is 60,000 barrels per day (bpd), or 3,300,000 gallons per day (gpd).
The news I’ve seen indicates they removed the partially working cap, so that they could install a clamping cap which is expected to capture all of the leaking oil, as well as a new, larger ship capable of handling that much flow.
The relief wells have targeted the well casement 17,000 feet below the surface, or double the distance to the gulf floor & blow-out preventer. Yes, it is a significant engineering challenge and hopefully achievement.
Yes, we can agree; the challenges BP faces are huge. From everything I’ve seen so far, the situation appears to be largely self-inflicted . . . as you say, corner-cutting . . . I’ll add profit-driven, safety-be-damned approach to a technically risky endeavor. We also agree that BP will not be off the hook for many, many months . . . long after the well is plugged and the leak stopped. Most of the damage can be dealt with. However, the one facet that bothers me greatly is the submerged oil, droplet-ized by the massive use of chemical dispersants. They say bacteria will consume it; I am deeply skeptical.
. . . a follow-up comment:
“Thank you for the correction of unit measurements. That’s an important distinction.
“I believe that BP is finally attempting to take serious corrective measures. I don't have a good analogy for the difficulty of the relief wells. "Needle in a haystack" is a minor challenge compared to this one. In the meantime, I can see the need for effective interim actions.
“I agree with your perceptive comment on submerged oil. Only very specialized bacteria can work under water. In addition, the dispersants themselves are a largely unknown quantity, somehow protected by laws guarding trade secrets.
“This story continues to develop. I suppose the next question is, ‘What happens when the oil reaches the Cuban coast’?”
. . . my follow-up reply:
As an engineer, I have some appreciation for the extraordinary challenges involved – hydrodynamics, static strength, remote manipulation, drilling precision, et al.
We will learn real-time what happens, however, this is one of those real-world experiments that may take 20+ years to play out. I think the engineers can solve the mechanical problems. I am not so confident in the biological problem and consequences. I would feel better about it if we had some controlled experiments to rely upon for such massive deployments. Apparently, we are not so lucky, and we shall have to deal with the consequences as we learn them and react to them.
The international relations issues are another huge dimension to this situation. I had not even considered Cuba, but it could be all of the Gulf nations and even Europe for that matter . . . before this is all over.

Another contribution:
“Anyway, onto [the Arizona] lawsuit. You are 100 percent right. This was a foolish thing for Obama to do. This man, quite frankly, is showing more hostility toward one of the states in the country he leads than he does toward our enemies. Those opposed to this law keep screaming "racial profiling" and a violation of civil rights. Excuse me, but the law has not gone into effect yet. None of this stuff has happened, and Arizona is taking great care to make sure it doesn't happen. Unless the police have just cause to stop a citizen, from a non-working headlight (which happened to me a few months ago) to some guy sleeping on a park bench, they can't just grab someone who looks Hispanic. It shows that Obama is not serious at all about enforcing the border. The federal government has utterly failed in their responsibility. Actually, I think a lot of people in D.C. just don't care about it, either that or they're more interested in kissing the butt of President Calderon than they are protecting the citizens of their own country. The best Obama can do is send us 500 National Guardsmen and stick them in desk jobs. Yeah, that helps. The cartels are making direct threats against our police, there are places in Southern Arizona you can't go because coyotes and drug dealers operate there. We need help. But all Obama and the U.S. Department of Injustice can do is sue my state. Pardon my French, Cap, but screw this president and his whole damn administration. They can all go to hell! Governor Brewer has even invited Obama to tour the border and see how bad things are. But will he do it? Nope. Is that the action of a responsible leader? From his stance on this, I don't see him caring at all about us here in Arizona. All we want here is some help. We want the Feds to do their job. I couldn't care less if the Mexican Government takes offense to us securing our border. Besides, where the hell does that tool Calderon get off coming to our country and bashing my state when Mexico's immigration laws are stricter than the ones we have in this country? He's another one who can go pound sand. I'm sick of the whole lot of them in D.C. and hope in November we get some new blood in there who will actually represent the people they work for.”
My response:
American citizens who are residents of Arizona have a unique perspective on the illegal alien situation, even more so than the other border states, by geography, population and capacity. Having been an Arizona resident several times in my life, I can relate to the issues and trauma, if not the current stress. The President had no choice under the Supremacy clause. I still believe it was a foolish, knee-jerk response. Unfortunately, the action against Arizona would make much more sense if the Federal government had demonstrated any serious enforcement performance. This is not to say the Border Patrol has been doing a poor job; they have been perpetually grossly under resourced. Like so many efforts, they (we) try to rely upon technology (sensors, fences, blimps, etc.) when it is a people problem. Since we do not have defense in depth, once they are passed the border, they are usually home free. We have to go after the root cause . . . at least that part we have control of in this country – the economic golden ring.

A different contribution:
“This item below has appeared in our Telegraph and is quite alarming.
“The rest of the world is relying on the powerhouse of the U.S. to drag us out of this recessionary mess; this does not make good reading. I’m quite certain you’ll have some views on this.
“With the U.S. trapped in depression, this really is starting to feel like 1932 – The U.S. workforce shrank by 652,000 in June, one of the sharpest contractions ever. The rate of hourly earnings fell 0.1pc. Wages are flirting with deflation.”
by Ambrose Evans-Pritchard
The Telegraph [London]
Published: 9:33PM BST; 04 Jul 2010
http://www.telegraph.co.uk/finance/comment/ambroseevans_pritchard/7871421/With-the-US-trapped-in-depression-this-really-is-starting-to-feel-like-1932.html
My response:
Interesting perspective. Immersed in our economy, it is my considered opinion, as a citizen and lay-observer, that the American economy and financial system is not as dire as Evans-Pritchard portrays in his article. Yes, the U.S. economy has faltered and is struggling with recovery. Based on the recovery of our industry, economic performance will most likely remain flat into mid to late next year – 2011. This is not another Great Depression. We are at 9.5% unemployment, not 29%. Banks are still functioning, not broad, general failures, as in the 1930’s. Things are looking better than they did a year ago, but this recovery will be slow. The reality is, Alan Greenspan described it correctly – “irrational exuberance.” We must endure the pain of correction for all that irrational expectation. We are experiencing the correction, and this correction will likely take a few years to expend and turn to progress. We have been through hard times before. We shall endure this version as well. The only question in my mind is how long will it take?

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

12 July 2010

Update no.447

Update from the Heartland
No.447
5.7.10 – 11.7.10
To all,
The follow-up news items:
-- The Justice Department filed suit against the State of Arizona challenging the state’s SB1070 immigration enforcement law [436]. I have not read the Government’s complaint, as yet; however presumably, the Federal case rests on the Supremacy Clause. I suppose the Federales had to exert themselves, however the case has to be weak based on the gross ineffectiveness of the Federal (un)enforcement of immigration law. Regardless, this is a really foolish move. The Federal government has in essence told the border-states to shut up, sit on your hands, and let the Federal government do nothing. Oh yeah, and, the states will pay all the extra expenses of Federal inaction, incompetence, complacency, and neglect. Yes, this was a really bad move that will haunt this administration.
-- The Deepwater Horizon well blow-out [442] continues to dominate the news. The long-anticipated “bottom kill” of the well -- a massive dose of mud and cement shot through a relief well now reportedly within feet of the target. They also removed the mostly-working-cap to install a new tighter fitting cap. The struggle to contain the discharged oil continues.
-- The 10 accused Russian agents [446] pleaded guilty to being unregistered foreign agents and were promptly whisked off by charter jet to Vienna, Austria, where they were exchanged for four Russians imprisoned for being American spies. Presumably, they will live happily ever-after.
-- President Obama nominated General James N. Mattis, USMC, [129, 165, 166-7, 341] to replace General Petraeus, USA, as Commander-in-Chief, Central Command (CinC CentCom) – a brilliant choice I must add . . . even though I am irretrievably biased.
-- In the Gulf oil drama, a three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected the Federal government’s appeal of the district court’s injunction – Hornbeck Offshore Services v. Salazar [USDC LAED civil action no. 10-1663 (2010)] [445]. The USG is sure to appeal to the Supremes on principle, if not substance. Sadly, the damage has been done multi-fold – the leak continues (see above), and oil exploration companies are abandoning drilling plans. The threat of the moratorium and the legal uncertainty are accomplishing everything the moratorium intended. The impact on the Gulf Coast economy will be dramatic.

For those readers who may have been anticipating my assessment of the Supreme Court’s latest Second Amendment case – McDonald v. Chicago [560 U.S. ___ (2010); no. 08-1521] – I regret to confess the ruling was too long, involving too much history and legal linkage for my humble capacity this week. I should be able to complete my reading and offer my opinion for next week’s Update.

Congratulations to Spain for their World Cup championship. It was not a particularly pretty match; yet, they outplayed the Dutch and they deserved the victory. Well done!

U.S. government scientists claimed discovery of three powerful antibodies – the strongest of which neutralizes 91% of HIV strains, more than any AIDS antibody yet discovered. The discovery, if validated and replicated, brings us closer to an HIV vaccine – an objective comparable to the vaccines for smallpox, polio, and so many other fatal diseases.

On Wednesday, the Deputy President of the Supreme Court of the United Kingdom, Lord Justice Baron [James Arthur David] Hope of Craighead, KT, PC, QC, FRSE, announced the Court’s ruling in a unique asylum case – HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [UKSC 2009/0054 (2010) UKSC 31]. HJ and HT are both homosexuals who claim they will be killed or seriously injured if they are forced to return to their homelands. The Court of Appeal had rejected the appeals of both men, based on their assessment that, if returned to their respective home countries, HJ and HT could conceal their sexual orientation in order to avoid the risk of being persecuted. What an enlightened opinion! Lord Hope noted, “To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.” Fortunately, there are a few who can help humanity take another step farther down the road of progress.

On Thursday, United States District Court Judge Joseph L. Tauro in Boston declared the Federal Defense of Marriage Act of 1996 [PL 104-199] was unconstitutional in two separate but similar cases – Massachusetts v. United States [USDC MA civil action no. 1:09-11156-JLT (2010)] and Gill v. OPM [USDC MA civil action no. 09-10309-JLT (2010)]. Both cases are on my reading list to review.

Comments and contributions from Update no.446:
Comment to the Blog:
“I still recommend reading the history of military conquest in Afghanistan prior to any optimism.
“The fact that Elena Kagan sees the confirmation process as a charade (logically enough) surely does not prevent her from wanting to join the highest rank of her field. I think that I would do that were I in her position.
“The article on bisexual men is interesting, particularly where it notes that bisexuals need not give up heterosexual privilege except by choice. My feeling is that bisexuals, particularly men, are at roughly the point in their progress that gay men were about the time of the Stonewall riot.
“The article on the Sexual Revolution and children is longer and at a more difficult reading level than the one on bisexuals, and it deals with events in Germany about 40 years ago. For the life of me, I could not find any information beyond the anecdotal or any conclusion except for the childish ‘you do wrong things too’ attitude. All in all, this one is not valuable as evidence of anything.”
My reply to the Blog:
I am fairly familiar with the history of Afghanistan. The salient word in your sentence is “conquest.” The contemporary Battle for Afghanistan is not about “conquest,” but rather the hearts & minds of the Afghan people. There is certainly no guarantee of success, and I strongly doubt we shall know victory by September 2011.
You are, of course, precisely correct. The last Supreme Court nominee who attempted to answer with candor and direct frankness was Robert Bork (1987), and we know how that turned out. I do not fault Elena Kagan for her desire to pass the gauntlet. I think she accurately described the consequences of the intransigently polar and parochial, political environment we have had to endure for decades. Like you, I would have done precisely the same thing in her position.
You may well be correct . . . Stonewall was a long time ago (1969) . . . and we have a very long way to go before every citizen enjoys the freedom envisioned by the Founders of this Grand Republic.
The Der Spiegel article was history . . . from 40 years ago. The sad aspect beyond the compromised youth of those children was such events / episodes most often cause regression rather than progression. I asked one question after reading the article: what can we learn and turn into a positive from such experience(s)?
. . . round two:
“No military action wins the hearts and minds of a defeated nation. It's not in the nature of the situation. That was the point of last week's discussion. In any case, how one can see that prolonged attempt at ‘victory’ as something other than conquest eludes me. I looked up the Wikipedia article on Afghanistan today; it lists petroleum and extensive mineral resources found in Afghanistan. My guess is that those are the underlying motivation for both the Russians' disastrous 1979-1989 campaign there and for the current US effort.
“I certainly agree that we have far to go before the Founding Fathers' vision is fulfilled. I see bisexuals, particularly men, as having reached a position on their path to full participation in society approximating that of gay men at the time of the Stonewall Riots in 1969; that is, awareness of their existence is growing but many opponents, myths and misunderstandings remain.
“The Der Spiegel article struck me as odd in its viewpoint. It seemed to me that the authors were digging up political ammunition against long-gone opponents. I noted that one of their sources had attended the type of preschool in question but used others' stories to write her book. No coherent evidence, or even statements, discussed the lives or well-being of the children since the preschools when this happened. Were they grievously injured? Did they require therapy more than others? What do they themselves recall? I would like to see more quantified, cause-and-effect research in this area, or at least reasonably strong correlations. Bear in mind that I am a college student today, so quality of information is very relevant to my daily life.”
. . . my reply to round two:
In the context of people living peacefully, yes, I would agree; violence is never the answer. I do not see how anyone can see the Battles for Iraq or Afghanistan as conquest of sovereign nations to exploit their resources. If we took down Saddam Hussein for Iraqi oil, why aren’t we consuming all their oil? The Afghan natural resources news was intended to spark investment and Afghan self-sufficiency; the Allies are hardly exploiting those resources. The necessity of violence in Afghanistan is to provide security for the people until the Afghan government can mature to provide that security. We are there because the Taliban used violence to impose its will upon the Afghan people and to offer safe haven for al-Qaeda to train and operate, which in turned threatened us and our allies. Once the Afghan government is operating properly or al-Qaeda & its offspring ease to exist or offer threat, then we will be gone (and perhaps even before that given the political winds).
Very well said re: bisexuals. Actually, I think we could expand the awareness to the broad spectrum of human sexuality from heterosexuality to homosexuality and beyond. I think the point of the article was to begin to crack the ice and open public awareness. We need to discuss & debate these things until we can recognize the rights of all citizens and allow each citizen the freedom of choice to define his unique “Life, Liberty, and pursuit of Happiness.”
The tone and perspective of the Der Spiegel article struck me in a similar manner. It was not meant to inform or frame any public debate, but rather to shock in a negative way . . . as you suggest, probably for political purposes. It happened. It would have been far more journalistic to suggest a need to study those children. Europe tends to be more liberal than the United States, but clearly those schools stretched the limits of their liberalism. I would like to know the answers to your questions as well . . . to understand the consequences of such social action. Nonetheless, as you note, information accuracy and breadth are crucial in your current endeavor, as well as for all of us . . . to conduct a proper public debate. The article made an attempt but missed the mark miserably.
. . . round three:
“I enjoy these discussions but we generally disagree on military issues. Your reply is founded upon the idea that we have spent massive resources for nine years in the attempt to track down what was originally a few hundred ill-equipped radicals. The original quarry, as I remember from TV news, was Osama bin-Laden, who according to the story line I hear has eluded all civil and military authorities of the US and its remaining allies for this whole time. I just don't find that credible. Either we have the finest (and certainly most expensive) military in the world or not. Nine years? Then you repeat what I kept hearing in my political youth about Vietnam: the idea that we can create a stable and functional government in and for a country where we are seen as a conquering army. It didn't work then and shows no sign of working now.
“We find ourselves in complete agreement regarding bisexuals. If the bisexuals follow the examples of gay men and lesbians, progress will likely follow.”
. . . my reply to round three:
We may disagree on the use of military force, but that is all the more reason we need to discuss and debate these issues.
I would disagree with your “founding” statement. Trying to track-down the leadership of al-Qaeda is only a small part of the War on Islamic Fascism, just as trying to eliminate Nazi leaders was only a small part of the war against Germany. A further dimension and complication in hunting down Usama bin Ladin is Pakistan and its nearly autonomous (read lawless) tribal region. We failed to capture/kill bin Ladin when he was in Afghanistan. If this was just about the U.S. military going into Pakistan to find him, we would have done that long ago; but, it is not. We are pressing the limits of Pakistani tolerance using drone-killers in their airspace; and, they have been reticent to press their anti-al-Qaeda efforts. Further, I am fairly certain the Spec Ops lads are working the region the best they can given the constraints. We’ll find him eventually, just as we found Saddam . . . hiding in a hole.
I am not disputing your precept . . . if we are perceived as a “conquering army,” then our approach is destined to failure. If, however, as I believe it is or should be the case, we are seen as a security force, trying to make them safe from violent dominance by the Taliban, then we will succeed.
We can only hope all individuals realize the full benefit and privilege of citizenship, regardless of their sexual orientation, race, color, religion, age, gender, political affiliation or other of the social factors. We must all work for that day.
. . . round four:
“We have discussed much of this before. For the rest of the Internet, I'll repeat my assertions that (a) fighting a concrete entity (Japan, Britain, Kenya) is a war; fighting an idea (drugs, poverty, terrorism) is futile. And (b) our discussion last week was about how people--any people--see foreign armies in control of their country. Those armies are just never welcome for any length of time.”
. . . my reply to round four:
In this context, I think we agree. Since the surge in Iraq (2006), we have not been fighting a classic blue-on-red force engagement. We have been fighting (or attempting to do so) a COunterINsurgency (COIN) operation, which is typically part force, part political. I would agree that an occupying army is often not looked kindly upon by indigenous people. We continue to have substantial military forces stationed in Germany, Italy and Japan, but we are not seen as an occupying army. The same can be achieved in Afghanistan and Iraq, although we have a long way to achieve stability; we are closer in Iraq than Afghanistan. Anyway, as I said, I think we agree on the principle, perhaps not on the degree or prognosis.

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

05 July 2010

Update no.446

Update from the Heartland
No.446
28.6.10 – 4.7.10
To all,

For all the former colonists, I hope y’all had a safe and enjoyable Independence Day holiday. We had a smaller gathering than usual this year; Sherri, Taylor & Jack joined us. Jack, 10, did the honors and read the Declaration of Independence from “When in the Course of human Events . . .” to “. . . mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.” Well done, Jack! The remnants of Hurricane Alex made its way across the Great Plains. After two days of rain, we weren’t sure we would have any outdoor events, but the precipitation broke for a few hours just around dusk. This was our first July 4th at the lake, so we were quite modest in our pyrotechnic celebration. Taylor and Jack did the honors for us. The surprise for us was the extent of fireworks demonstrations all around the lake – very impressive. We had a glorious day.

The follow-up news items:
-- The U.S. Senate confirmed the President’s nomination of General David Petraeus [270 & sub] to replace dismissed General Stanley McChrystal [387 & sub], as the new commander of U.S. and NATO forces in Afghanistan. In a subdued ceremony on Sunday, General Petraeus assumed command in Kabul. Good luck and good hunting, Dave.
-- Congress added U.S. law to UN Security Council Resolution 1929 when the President signed into law the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2009 [PL 111-195; H.R.2194; House: 408-8-1-16(2); Senate: 99-0-0-1(0)], enhancing sanctions against the Islamic Republic of Iran [419/20, 443]. I want these sanctions to work. I want the IRI to abandon its nuclear weapons development program. I also want the IRI to stop their sponsorship of terrorist organizations and objectives. I am still waiting for results.

In 1995, as an assistant professor of law at the University of Chicago, Elena Kagan reviewed a book titled: “The Confirmation Mess,” by Stephen Carter; the review was published in The University of Chicago Law Review [Vol. 62, No. 2 (Spring, 1995), pp. 919-942]. In that review, she referred to her service as Special Counsel to the United States Senate Committee on the Judiciary in connection with the confirmation of Associate Justice Ruth Bader Ginsburg to the Supreme Court (1993). Kagan took exception to Carter’s assessment and rendition of the judicial nomination confirmation process and coined the now famous phrase “a vapid and hollow charade” in describing the process. In her own charade, she comported herself admirably, with rare humor and strength. We will not likely know her opinion of the process until she is confirmed (which she appears destined to achieve), and even then, we may have to wait a few years before we learn if she retained that opinion when she was the focus of Senate scrutiny and that “charade.”

Ten, perhaps 11, individuals were arrested and accused of being agents for a foreign power, in violation of the Foreign Intelligence Surveillance Act of 1978 (FISA) [PL 95-511] as amended by the Intelligence Authorization Act for Fiscal Year 2000 [PL 106-120] and the USA PATRIOT Act of 2001 [PL 107-056]. All 11 were reportedly working for the Sluzhba Vneshney Razvedki (SVR) – the Russian Foreign Intelligence Service (separate from the FSB, and both descendents from the former KGB). This particular law is one of those catch-all’s that the government uses from time to time when it suits other purposes. No one has presented evidence of actual espionage activities, although numerous talking heads have hinted at such conduct. I suspect there is much more to this story than the prima facie charges so far. The near silence of the Russian government suggests something quite a bit larger. Hopefully, we will eventually learn the whole story.

This editorial is not a pleasant topic and I am certain the issue is a subject most decent, civilized, human beings would prefer not to even consider, let alone discuss or debate.
“Not Anyone’s Daughter”
Editorial
New York Times
Published: June 30, 2010
http://www.nytimes.com/2010/07/01/opinion/01thu4.html?_r=1&th&emc=th
The proposed law on focus here was introduced last month in the House of Representatives – the Girls Protection Act of 2010 [H.R. 5137] – which intends to make taking a girl out of the United States for the purpose of ritual genital mutilation a Federal crime. First, I stand in public condemnation of such conduct no matter the reason, rational or justification – such practice is barbaric in the extreme and on many levels. Further, I condemn any religion, tribal ritual, or obscene mythology that advocates for the procedure. Yet, it is well-intentioned laws such as this one that are so easily abused by some eager prosecutors. The method of enforcement of such law is not clear, since we are talking about intentions that may not be written or even spoken. We are also injecting the government into the private affairs of families. The proposed law has been referred to the House Subcommittee on Crime, Terrorism, and Homeland Security; we need to see more definition before rendering an opinion.

Here is another article most folks would prefer not to read about or discuss. I leave such decision to your judgment, interest, time and willingness to learn.
“The last person out of the closet? The bisexual male”
by Stephanie Chen
CNN
Published: June 28, 2010 9:04 a.m. EDT
http://www.cnn.com/2010/LIVING/06/28/bisexual.male.last.closet/

Another perspective and opinion regarding the McChrystal dismissal:
“The General and the Community Organizer”
by Paul Hollrah
Family Security Matters
June 28, 2010
http://www.familysecuritymatters.org/publications/id.6581/pub_detail.asp
While Hollrah has some valid observations, ultimately, Stan left the President no choice. McChrystal sought confrontation; he got it. I continue to believe he allowed his staff and himself to be exposed to the public domain intentionally, not out of some ignorance, or betrayal, or naïveté.

This article is not for the faint of heart . . .
“The Sexual Revolution and Children – How the Left Took Things Too Far”
by Jan Fleischhauer and Wiebke Hollersen
Der Spiegel
Published: 2.July.2010
http://www.spiegel.de/international/zeitgeist/0,1518,702679,00.html#ref=nlint
. . . however, it is history.

Several years ago, Jeanne got me hooked on The View – the ABC talk show with the ladies bantering about Hot Topics – contemporary issues of the moment, my kinda thing. As a side note, my only frustration with the show springs from the fact that they do not listen to my arguments. Anyway, back to my thought, on the 29.June episode, the ladies of The View interviewed a former Chickamauga Elementary School kindergarten teacher from Ringgold, Georgia – 37-year-old Tonya Craft. A jury of her peers in Catoosa County [Georgia] Superior Court acquitted her on 22 charges of child molestation, aggravated sexual battery and aggravated child molestation, after nearly two days of deliberation. By an obscene combination of false accusations and over-zealous prosecution, Tonya faced the most forbidding and damning charges in our society; and despite her acquittal on all charges, she will undoubtedly face ostracism and condemnation by a society that does not take kindly to the abuse of children. Yet, Tonya’s plight raises once again the question of rehabilitation of the innocent and the guilty who pay their debt to the society they offended. Tonya has lost her job, her livelihood, and probably will be prevented from ever teaching children again . . . simply because a vindictive adult and a gullible prosecutor wanted to believe she was a child molester. Many citizens, including me, have proclaimed sexual conduct is a private matter and not acceptable for the public domain. Unfortunately, for Tonya Craft, that very same sense of propriety subjected her to horrific public disdain and ridicule. Once again I say, perhaps one day we will mature as a society and culture to talk about sex and sexuality in a proper, open, public debate, so that we can progress individually and as a community.

Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) [PL 104-132] [394], which was signed into law by President Clinton in April 1996. Within months and pursuant to the new law, the Secretary of State designated 30 groups as foreign terrorist organizations. Shortly thereafter, an American organization known as the Humanitarian Law Project (HLP) filed a civil suit challenging the constitutionality of the law under the 1st and 5th Amendments. HLP wanted to provide various legal, educational and other advice to the Partiya Karkeran Kurdistan (PKK) [AKA Kurdistan Workers’ Party] and the Liberation Tigers of Tamil Eelam (LTTE) – two of the entities declared terrorist groups under AEDPA. The HLP’s case focused on the definition of “material support.” They sought to provide “training for PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka.” Sounds reasonable, doesn’t it? Peaceful purpose . . . no weapons, no violence, no money, just legal advice and counsel. The case made it to the Supremes and was decided last week – Holder v. Humanitarian Law Project [560 U.S. ___ (2010); no. 08-1498]. As a background note and point of history, on 31.January.1996, the LTTE exploded a truck bomb filled with an estimated 1,000 pounds of explosives at the Central Bank in Colombo, Sri Lanka, killing 100 people and injuring more than 1,400 – the attack was the deadliest terrorist incident in the world in 1996 [if we exclude the TWA 800 incident]. The PKK and LTTE are not humanitarian groups; they kill people to further their political objectives. Chief Justice Roberts, writing for the Court, stated, “The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may prohibit what plaintiffs want to do--provide material support to the PKK and LTTE in the form of speech.” John went on to observe, “Whether foreign terrorist organizations meaningfully segregate support of their legitimate activities from support of terrorism is an empirical question,” . . . and not appreciably different from the arguments regarding organized crime, e.g., il Mafioso. When it enacted AEDPA in 1996, Congress made specific findings regarding the serious threat posed by international terrorism; “[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Cases like this one reminds us there are limits to all our freedoms, including speech and assembly. Congress attempted to define one of those limits. When are words actually “material support” to an enemy? The Supremes told the HLP (and other organizations) legal advise no matter how peacefully intended is “material support,” and although we are not at war with the PKK or LTTE, terrorism is like any other adversary. The Logan Act of 1799 [280] prohibits citizens from negotiating with foreign powers, and in combination with the AEDPA, prohibits aiding and abetting enemies of We, the People, including those extra-territorial organizations like al-Qaeda, the PKK and the LTTE. The potential for abuse by some zealous prosecutor remains real and even more possible with laws like the AEDPA. Regardless, the Supremes did what had to be done.

The Supreme Court’s recent Second Amendment case – McDonald v. Chicago [560 U.S. ___ (2010); no. 08-1521] – is next on my judicial reading list.

News from the economic front:
-- The Commerce Department reported consumer spending rose a modest 0.2% in May after being flat the prior month. Incomes rose 0.4% in May, helped by slow improvements in the jobs market.
-- The Wall Street Journal reported, “U.S. consumer confidence dropped sharply in June to 52.9, amid concerns over the sustainability of recovery.”
-- The Labor Department reported non-farm payrolls fell by 125,000 in June, as 225,000 temporary government census jobs ended. Only 83,000 private-sector jobs were added last month. Employment declined for the first time this year, adding to concerns that the pace of the recovery may slow in the second half.
-- A separate survey showed the unemployment rate dropped to 9.5% as many people dropped out of the labor force.

Comments and contributions from Update no.445:
Comment to the Blog:
“I apologize for the lengthy pointless discussion last week. Perhaps we can discuss that another time in a different setting.
“You neglected to mention that Judge Feldman, who ruled against the Federal government and in favor of the oil companies, has a public record of owning oil company stock as recently as 2008. Somehow you seem to think that legal processes are carried out objectively by people whose central interest is ‘the truth.’ Such beliefs fly in the face of evidence.”
My reply to the Blog:
I am truly sorry you felt last week’s discussion was pointless. I suspect the pointless-osity stems from my inability to comprehend. I encourage you to pick up the lance whenever the urge strikes you.
Re: “You neglected to mention . . .” Oh my, that was rather harsh . . . and probably deservedly so. I based my opinion on the judge’s words, not his investments. It was certainly not the most scholarly judicial pronouncement I have read, but it was sufficient to convince me of its worthiness. The Executive does not have unilateral authority in such cases. We are debating a very serious, economically profound, public action based on one dramatic accident; in essence, the Executive has condemned an entire process by one event. His comparison to aircraft, or rail, or mining accidents was apropos. Whether the judge was plagued by conflict of interest, the outcome seems appropriate. The USG’s process is called Notice of Proposed Rule Making (NPRM); it works; we should use the process.
. . . a follow-up comment:
“My opinions of people's actions, including judges' actions, is shaped by their interests as well as their words. I find it reasonable to expect judges to attempt objectivity, but not when that objectivity is opposed to their financial interests or to strongly held values. That particular judge's only appropriate course of action would have been to remove himself from that case due to his conflict of interest.”
. . . my follow-up reply:
I certainly cannot disagree with your method of judging folks. Conflict of interest is often very black or white, but sometimes it is various shades of grey. The judge’s logic and reasoning are correct, and he will not be the final decider.
In this case, we could examine the inverse of this issue. Why isn’t anyone questioning the President and his administration of conflict of interest, of arbitrariness, of acting capriciously and threatening an entire industry? As Judge Feldman noted, this was one accident . . . hardly justification for condemning an industry.
I’m just sayin’.

Another contribution:
“Glad your latest grandchild is doing well.
“Good blog! Much in there to think about.
“McChrystal had to go, that is clear to me and I've no problem with it. Just as MacArthur had to go. Let’s hope Petreaus is as good as folks say he is about politics, and warfighting. He will need both talents.
“Amos our new CMC? I think he is certainly capable as many other aviators would have been in the past. My question is why him? Mattis is likely a better warfighter, but from a political standpoint also likely harder to control. So the question becomes what do you want in your top military leaders?
“Do you want Yes men like I think Westmorland was during Vietnam,? I think not. I believe you want----and need----warfighters, tested in battle tactics, adept at strategic planning for both the fight itself and what to do afterwards, steeped in a superb knowledge of history and how it is in so Many ways always still relevant in today's world or any world in the future, an understanding that in our country the military is an arm of the People, subordinate to the people, and the people are led by their elected President. In today's world our top military must have political accumen also----an unfortunately necessary attribute in our world today.
“Not many can live up to all of that. When we find one who can we should keep him if we can. I think that it takes an extraordinary person to say in the face of all he knows a simple ‘Yessir, I'll go.’”
My response:
Thank you. Avalon Mar is thriving . . . a testament to Mom’s extra care in utero.
Stan either overestimated his importance or underestimated the significance of his words. Yes, Stan had to go; he left POTUS no choice. I illuminate an article in this week’s Update by a right-wing blogger who has a relevant perspective. For any flag officer to think his job is not political would be naïve in the extreme. Dave has proven his political skills. I hope and believe he is up to the task at hand.
I do not know Jim Amos. I hope he is up to the task; I’m sure he is. It’s about time we had an aviator as the HMFIC. I suspect, as with many selections of this sort, familiarity and acceptance by SecDef, the Chairman, key senators, and such was crucial. I thought Mattis replacing McChrystal would have been a good choice. Oh well. Nonetheless, the higher the rank, the more political the job. We need an effective general, not just an efficient killer.
Your observation is spot on, and I think Stan forgot the acumen of which you spoke.
I have very specific opinions regarding responsible conduct: either you do your best to accomplish the mission within the constraints given, or resign. Doing what Stan did is not one of the options.

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