Update no.449

Update from the Heartland

No.449

19.7.10 – 25.7.10

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

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 :-)