Update no.448

Update from the Heartland

No.448

12.7.10 – 18.7.10

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

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 :-)