Update no.450

Update from the Heartland

No.450

26.7.10 – 1.8.10

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

To all,
The follow-up news items:
-- The twists & turns of the Deepwater Horizon disaster [442 et al] have finally taken a positive or at least more optimistic turn. The well has been temporarily capped for a couple of weeks now. BP is making final preparations for another attempt at a permanent plug for the well. If successful, the focus will shift entirely to the clean-up effort. Far too many people have begun playing “where’s the oil?” I would like to think the condition is real, but I seriously suspect the leaked oil will remain a problem for a generation. The Federal investigators euphemistically called the “BP Squad” continue to collect information regarding the disaster. The BP Board has decided to replace Tony Hayward as CEO of the embattled company, with the company’s Managing Director Robert W. Dudley, an American, who will become BP’s first non-British chief executive.
-- As I am certain everyone on the planet has heard, a Federal judge in Arizona issued a preliminary injunction against portions of the state’s SB1070 immigration enforcement law [436, 447] – United States v. Arizona [USDC AZ case 2:10-cv-01413-SRB (2010)]. Among many things I learned in reading this decision, I learned the title of Arizona Senate Bill 1070 – Support Our Law Enforcement and Safe Neighborhoods Act. The case raised numerous constitutional issues that do not have a large body of law to help resolve. U.S. District Judge Susan Ritchie Bolton concluded, “The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws.” Judge Bolton gave us a brief trip down memory lane regarding U.S. immigration law from the Immigration and Nationality Act of 1952 (INA) [AKA McCarran-Walter Act] [PL 82-414; 8 U.S.C. § 1101; 66 Stat. 166] . . . well, at least from a federalist perspective. The judge tried to fain empathy for Arizona’s plight as it grapples with the burdens of grossly inadequate enforcement of Federal immigration law, but that is little comfort to the state. She offered little recognition or even acknowledgment of the serious community issues that precipitated SB1070. Of course, as a Federal district judge who might harbor ambitions for higher posting, Susan took the safe approach to a volatile social dilemma. She stood upon the Supremacy Clause – Article VI, Clause 2. – as all of us anticipated. Judge Bolton specifically avoided the question of serious under-enforcement and even non-enforcement of Federal immigration laws. I am still searching for legal precedent. The closest I have reached so far is the opposite condition – the Federales attempting to force a county sheriff to enforce Federal law – Printz v. United States [521 U.S. 898 (1997); 95-1478]. Writing for the Printz Court, Justice Scalia concluded, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” The inverse argument seems to apply here, in that the judge argues the state is attempting to force the Federal government to enforce its own laws. Susan Bolton took the safe line. I do not fault her. This case is far from over.
-- Representative Charlie Rangel of New York will stand public trial on 13 counts of violating House rules [449], after the veteran congressman failed to reach a settlement to avoid the rare and potentially embarrassing proceeding. Just in this week alone, we had a number of off-again, on-again public announcements. I suspect negotiations will continue in private as Charlie seeks survival and the charges suggest resignation. We also learned that Representative Maxine Moore Waters née Carr of California joins her colleague and also faces ethics charges. I expect Republican gloating as the mid-term elections approach. I will gladly remind them of their peccadilloes in the ethics arena.
-- Massachusetts appears to be headed down the same path as Maryland [279] in abandoning the presidential Electoral College process that has functioned successfully for 222 years, as they are expected to give up another sliver of state sovereignty at the alter of the national popular vote. If I was a resident of Massachusetts, I would not be happy.

The widely publicized WikiLeaks publication of 92,000 classified documents from the Afghanistan Theater of Operations a week ago sparked a flood of opinions from indignant condemnation to confirmation of all-is-lost. The Government has their primary person of interest – Private First Class Bradley E. Manning, 22, an Army intelligence analyst – in custody, interestingly and reportedly being held in the Brig at Quantico, Virginia. I have not read through the list of disclosed documents, and I am not likely to do so. Of the dispatches selected by various Press sources, the disclosures do far more for our enemies than they inform freedom-loving people. My opinion of such disclosures during wartime has not changed. We await the Government’s decision to prosecute all of those involved in the release of classified documents. In a previous war a generation ago, we endured another betrayal of the national trust. The Daniel Ellsberg – Pentagon Papers case made it to the Supreme Court – New York Times Co. v. United States [403 U.S. 713 (1971)], a case I clearly need to put on my reading list.

A couple of weeks ago, United States District Court Judge Robert E. Blackburn of Colorado granted a defendant’s motion to dismiss and declared the Federal Stolen Valor Act of 2005 (SVA) [PL 109-437; 18 U.S.C. § 704(a)] an unconstitutional violation of the 1st Amendment – United States v. Strandlof [USDC CO 1:09-cr-00497-REB (2010)]. The Federales charged Rick Glen Strandlof, AKA Rick Duncan, with publicly claiming to have been awarded a Silver Star and Purple Heart from combat operations in the War on Islamic Fascism. Judge Blackburn cited two principal Supreme Court cases to substantiate his decision: 1.) Texas v. Johnson [491 U.S. 397 (1989)] [420] – the flag desecration, freedom of expression case; and, 2.) United States v. Stevens [559 U.S. ___ (2010)] [437] – the “crush video” pornography, freedom of expression case. I think the judge stretched the support law too far in this instance. I expect the government will appeal the ruling to the 10th Circuit Court of Appeals. I can understand and appreciate the decisions in Johnson and Stevens. I do NOT share Judge Blackburn’s interpretation of the law. Strandlof fraudulently portrayed his status, which has tangible and intangible benefit to him personally and individually. Military decorations and especially medals of combat valor are not speech or matters of choice. Military decorations are recognition on behalf of a grateful nation for service to this Grand Republic. There are limits to freedom of speech. Fraudulently presenting ones self as the recipient of military decorations goes way beyond the boundaries of tolerance. Judge Blackburn was flat wrong!

A year ago, I reviewed the Supreme Court’s FCC v. Fox Television [556 U.S. ___ (2009)] [385] decision, the broadcast television 1st Amendment freedom of speech case, which remanded the constitutional challenge back to the appeals court for the constitutional question. The 2nd Circuit Court of Appeals completed their task – Fox Television Stations, Inc. v. Federal Communications Commission [2CCA docket nos. 06-1760-ag, 06-2750-ag, 06-5358-ag (2010)]. The full citation reflects the first of a long list of participants otherwise known as “The Networks” – Fox Television Stations, Inc., CBS Broadcasting Inc., WLS Television, Inc., KTRK Television, Inc., KMBC Hearst-Argyle Television, Inc., ABC Inc., as Petitioners. The list expands farther when we include the Intervenors – NBC Universal, Inc., NBC Telemundo License Co., NBC Television Affiliates, FBC Television Affiliates Association, CBS Television Network Affiliates, Center for the Creative Community, Inc., Doing Business as Center for Creative Voices in Media, Inc., ABC Television Affiliates Association. The three-judge, 2nd Circuit panel was unanimous in their decision. The court noted, “[T]here is ample evidence in the record that the FCC's indecency policy has chilled protected speech,” and they offered several quite appropriate examples. They concluded, “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.” The appeals court struck down the FCC oppressive policy as unconstitutional. The government may well re-appeal to the Supremes, but I suspect the High Court will let it stand there . . . and rightly so I must add. This point has been a long time coming – long overdue – and I trust will allow us to move toward a more enlightened state.

News from the economic front:
-- President of the Federal Reserve Bank of St. Louis James B. Bullard warned that the Fed's current policies were putting the American economy at risk of becoming “enmeshed in a Japanese-style deflationary outcome within the next several years.” The warning comes amid efforts by the Federal Reserve to stimulate the economy. Bullard had been seen as a centrist and associated with the faction that sees inflation as a greater threat, which hints at the struggle the central bank has in reading the economic signs.
-- A name we should watch – Wyly, namely Samuel and Charles Wyly, -- Texas billionaire brothers. The Securities and Exchange Commission has accused the Wylys of violating federal securities laws by using offshore accounts to secretly trade the shares of public companies whose boards they sat on, making more than US$550M through fraudulent trading practices.
-- The Government reported the U.S. Gross Domestic Product (GDP) rose at an annualized seasonally adjusted rate of 2.4% in the 2nd Quarter, slowing from 3.7% in the 1st Quarter (originally estimated at 2.7%). The Government indicated the economy was supported by business investments and exports, while consumer spending made a smaller contribution to growth. The government suggested the recession was deeper than earlier believed, and the recovery will take longer than originally forecast.

L’Affaire Madoff [365]:
-- Court appointed, Madoff-asset, liquidation trustee Irving H. Picard is preparing an estimated 2,000 new lawsuits against net positive Madoff investors in an attempt to recover funds for distribution to the net losers. The tragic aftermath of the gargantuan Ponzi scheme continues to play out.

Comments and contributions from Update no.449:
Comment from the Blog:
“The Deepwater Horizon case just gets stranger as time goes on. If that alarm system was in the wrong mode, I would look to the rig operator, rather than BP, for that liability. That's important financially, particularly in the lawsuits over the worker deaths. I hope the oil companies carry out the strike force idea and that it can be maintained in a reliable state. Similar measures in other oil-producing areas would also be a good idea.
“I do not usually comment on the intelligence community. Their antics are a nightmare from my viewpoint due to the general habits of lying and distorting information. The public never gets reliable information on any part of this.
“My feeling about non-heterosexual marriage is that in time it will become ordinary. The more conservative religious factions will scream about it for quite some time, though. A question further down the road is plural marriage. While allowing those might re-unite the LDS Church (is that a good or a bad thing?) and recognize some other people's realities, the divorces could be insanely complicated.
“Finally, I also see Caterpillar as a good economic bellwether, for the obvious reason that their sales show the state of long-term investment in construction. Their rising profits and estimates are a good sign.”
My reply to the Blog:
Re: DH tragedy. Indeed . . . curious’er and curious’er, as they say. I have not seen a definitive hierarchy of command, but Deepwater Horizon was an ocean vessel, which implies a singularity of command, i.e., a captain. It is my understanding that although Trans Ocean owned and operated the rig, BP was the captain by contract. You may well be correct, but at this stage, I suspect it was a BP manager (captain) who made the decision on disabling the alarm system. The details will eventually be made public for all of us to assess.
Frankly, I do not think anything the Intelligence Community (IC) does should be debated or discussed in the public domain. I want their operations appropriately and highly classified. The oversight of the Executive’s intelligence operations belongs to Congress and in rare instances to the Judiciary in camera or closed session. By its very definition, intelligence operations and products should be the object of historians after the information is no longer action-able or relevant and has been declassified. The IC must not be transparent and must not exist in the public domain if it is to have any value to the Executive for diplomacy or warfighting. There is a very real reason the British call MI6 the Secret Intelligence Service.
Yes, polygamy – maternal or paternal – adds complication to family law. Yet, we managed to sort out the operations as well as dissolutions of complex corporate structures, so I am certain we can sort out complex marital relationships. Bilateral marriages are complex and hard enough to nurture, maintain and defend, and to dissolve. I am not and will not encourage plural marriage. Yet, I will argue that such decisions regarding marriage which is primarily a private relationship is a matter for the participants to decide. There are proper, reasonable, rational, state concerns regarding the “general welfare,” e.g., free choice, health, full disclosure, et cetera. There is also the issue of parental accountability that exists beyond any relationship definition.
. . . round two:
“The Deepwater Horizon mess gets more fascinating. A story at a British web site http://www.theinquirer.net/inquirer/news/1724792/microsoft-deep-water-oil-spill
states that the rig had been plagued with computer issues for weeks. This particular story gives no indication whether efforts had been made to remedy the problems. I doubt whether MicroSoft (if they are in fact the software provider) has any legal liability in any case. If the rig operator made no contact with the software vendor to correct the issue, that's one problem; if the problems continued for weeks, that's another. All in all, still another complexity.
“I have no resolution to the conflict of having an intelligence establishment, but I can at least state the issue. An effective intelligence apparatus must operate in secrecy, but that same secrecy invariably leads to abuse of power and/or corruption.
“Polygamous or polyamorous (plural) marriage seems to me to lie down the road beyond non-traditional marriage. I would not care to participate in such a marriage, but that is immaterial. It would have a beneficial side-effect if it brought about a simplification of divorce laws.”
. . . my reply to round two:
I have no idea whether the Inquirer story is true. Common practice in the digital age dictates all critical system have parallel systems. In the case of digital flight control systems, quadruple parallel systems are common. I think we will eventually know what happened to Deepwater Horizon.
I share your concern regarding secrecy and abuse of power, which is precisely why there must be appropriate, independent oversight – checks & balances. Absolute power corrupts absolutely.
A polygamous relationship is not on my list of desirable relationships. However, I prefer not to deny that option to others just because I disapprove. I believe strongly that the burden the Warren Jeffs clan place on the public domain should be illegal and punishable; they abused the system intended to help needy people, not support over-population.
. . . round three:
“I have the feeling from the story that parallel systems were not in place on the Deepwater Horizon. That's not knowledge, but it is a question worth asking by the appropriate investigators.
“Polygamy is far from my own outlook; other forms of plural marriage are not for me. Nonetheless, I also would not deny them to those for whom they work. The fact that some people abuse any social institution is not news. The only real question is whether the abuse of a given institution reaches the level of prompting society to change the institution. The question of whether plural marriage is being abused is a moot point at present, to be determined if and when plural marriage becomes legal.”
. . . my reply to round three:
You may well be correct. We do know from earlier Press reports that one of the dual controllers on the Blow Out Preventer (BOP) was inoperative [as I recall, it had failed a month or so prior to the accident] and the “captain” decided to forego repair and continue drilling – another red flag. If the DH rig did not have multiple parallel control / monitoring paths for the critical systems, then it was a bad design; I suspect they did have parallel systems. Whether they were all operational is yet to be determined.
Plural marriage is illegal in this country, but that does not mean that groups like FLDS are not circumventing the law. What relationships adult citizens choose to enter is their business as long as they do not cause injury or become a burden upon the public domain; once either threshold is breached, We, the People, have every right to demand specific standards and conditions.
Ironically, as we discuss this aspect of Life, the Utah Supreme Court overturned the Jeffs conviction on a very thin legal technicality. Frankly, I hope Utah passes on the retrial and honors the extradition request from Texas, where Jeffs faces direct rape charges rather than an accomplice to rape as he did in Utah. I hope Texas is ready, so he is not let out of jail.

Another contribution:
“You have no idea how ****ed off I am right now with Obama and his cronies. Thanks to a judge who probably got her law degree from Cracker Jack box, SB 1070, which was supposed to enforce the immigration laws the worthless Federal Government refused to, has been gutted. This poor excuse for a magistrate basically said it is OK for someone who is not from this country to not carry ID. She said it is OK for someone who is here illegally to stand around and solicit for work. I'm sick of this! That idiot Barak Obama, his moronic AG Eric Holder, and this fool of a judge have made it clear. They care more about the rights of lawbreakers than they do about folks like me who are legal residents who play by the rules. I've had it with this socialist (expletive) crapping all over me, all over my state, and all over legal residents of the United States! They have also sent a message that it is okay for certain people to break the law, like people who aren't supposed to be here in the first place. What does this say to the people from all over the world who come to the U.S., follow the rules, study hard and wait years for the privilege of becoming American citizens so they can contribute to the betterment of this country? What does it say to my grandparents and great-grandparents who crossed the Atlantic from Germany and Hungary to come to the USA to make a better life for our family? Obama, Holder, Napolitano, Judge Bolton and all their sycophants have just spat on them! On me! Well I spit right back at them! I absolutely loathe this Administration and the Federal Government. They are more hostile toward my state than they are North Korea or Iran. We are just trying to enforce the law! Period! I'm sick of their disrespect. I'm sick of their hostility. I’m sick of all their stupid accusations of racism. I’m sick of how this law and my state are being misrepresented. What part of illegal don’t these morons understand!?!
“How about this? If non-citizens aren't required to carry ID at all times, then maybe we should go around without our driver's licenses? Why should we natural born citizens of the US have carry ID when non-citizens, legal or otherwise, don't have to? I seriously hope, from here on out, if the Federal Government needs anything done in Arizona, our state government does all it can to not cooperate with them (barring serious crime matters and national security issues). But anything else, "Oh. We need you help doing this project because the scope encompasses some state land as well as federal land," then the state of Arizona's response should be, "Okay. I'll put that at the bottom of our to do list and we'll be in touch with you whenever we feel like it. Bye." I also wouldn't mind seeing citizens be rude and discourteous to employees of certain federal agencies (i.e. DOJ, Homeland Insecurity, Federal Courts). Nothing violent or intimidating. Just act rudely. If they wish to act with hostility or disrespect toward Arizona, then I do not see why we should act with civility toward them.
“At least Jan Brewer isn't rolling over for Obama and the other lovers of lawbreakers. I pray we win the next court battle and can enforce the law and protect the people of this state, and hopefully other states. We just want the damn law enforced! We just want that pillock Obama to do his damn job and enforce the border. Quit with your damn speeches, quit with yakking it up with the women on The View, quit with your damn date nights with Michelle, and do your damn job! Protect us from all enemies foreign and domestic!
“Keeping up the fight in a state under siege . . .”
My response:
I can appreciate your opinion. You are usually rather demonstrative in your writing, especially regarding the current administration, and this instance is no exception.
I am trying to read through Judge Bolton’s reasoning for the temporary injunction, so I must reserve my opinion until that task is done. I suspect the judge did not say it was OK to be in this country illegally. Further, I imagine she read the Constitution, which clearly delineates immigration responsibility and concomitantly the Supremacy Clause, as reinforced by the Supremes, tilts to the Federales in this debate. I am eager to read her ruling. More to follow. FWIW, IMHO, Arizona cannot win this legal battle; the Constitution simply too specific and clear; at best, the Court could “force” Congress to act – not sure how that is done, but theoretically possible.
I respectfully suggest the focus of your ire should be Congress – not the administration. Congress has repeatedly demonstrated their impotence to shed the mantle of political parochialism and face immigration reform directly, head-on, and with vigor, over at least all of the last half dozen administrations – Republican & Democrat. This abysmal situation is not the Executive’s yoke; it belongs squarely and completely with Congress; they make the laws, they allocate the funds, they under-resource the Border Patrol; they hamstring the Executive. So, let us concentrate our anger where it belongs.
I’ve written numerous times regarding my experience of living & working in other countries – Japan, England and Italy. My “papers” in Japan were my uniform and military ID. In both England and Italy, I had to carry my legal resident alien status along with work permit papers all the time, and I was obligated by law to present them to any government official who asked to see them for whatever reason he chose to ask. So, I hold no sympathy for these false and thin arguments about papers being discriminatory; it is the only intelligent thing to do. Again, it is Congress that has failed to enact an alien identification process. It is Congress that blocks inter-connectivity between various agencies that could illuminate illegal aliens.
I have considerable empathy for the plight of Arizona and the other border states. Despite its potential for illegal abuse, I did and still do support SB1070; I truly believe Arizona was left no choice by spineless impotency of Congress. I think this kerfuffle over SB1070 is distracting. Local law enforcement takes action to enforce Federal laws; immigration laws are no different.
. . . a follow-up comment:
“I have no problem aiming my ire at Congress over this issue, along with many others. You're absolutely right. They have failed too in their inaction on illegal immigration. But the Administration must share that blame as they have shown nothing but hostility toward Arizona. Our officials have invited the President to come to our state numerous times to tour the border and see the problem for himself. He has refused every time. He has no problem going to other states to raise money for candidates for political office, but he can't spare one day to come to Arizona and see the problem for himself. This is not only a law enforcement issue, but a national security issue. Obama's main job as President is to protect the citizens of this country. He has neglected that duty. So both our inept Congress and this Administration of incompetents both deserve our disdain.”
. . . my follow-up response:
We each see and judge events by our eyes, our experiences and our beliefs. That is the beauty and magnificence of freedom.
I imagine the President does not see any way to further the public debate and find a solution by a visit to the state – other than offer moral support. I also imagine he cannot see how a visit will finally convince Congress to provide the necessary resources for enforcement and amend the law to deal with so many ancillary aspects of the immigration issue. We’re not buds . . . so I’ve no idea.
This will all get sorted out in time.

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