Update no.453

Update from the Heartland

No.453

16.8.10 – 22.8.10

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

To all,
The follow-up news items:
-- Well, the California Proposition 8 Proponents beat Judge Walker’s deadline from Perry v. Schwarzenegger [USDC CA(ND) no. C 09-2292 VRW (2010)] [452]. On Monday, a three-judge panel of the 9th Circuit Court of Appeals indefinitely stayed the district court order and directed the parties to prepare their appeal briefs to be ready as early as next month. I am reminded that the issue IS NOT whether we support, agree with or should tolerate non-heterosexual marriage; the issue IS truly whether we have a compelling public interest in denying equal rights to other citizens who make different private choices than us.
-- The private security company Xe (AKA Blackwater Worldwide) [420] reached a settlement with the State Department for hundreds of violations of United States export control regulations. The company agreed to pay US$42M in fines as the company continues its rehabilitation.
-- Eighty-Nine (89) months after Operation IRAQI FREEDOM began [069], the Obama administration announced the last combat troops departed Iraq (crossing the border into Kuwait); 4th Stryker Brigade, 2nd Infantry Division, completed their egress. After all the bally-ho, the reality is five divisions worth of troops, a substantial portion of which are combat capable, remain in Iraq . . . just in case.

In the continuing debate of Prop H8 and non-heterosexual marriage, the former United States Attorney General Edwin “Ed” Meese III (1985-1988) [currently, chairman of the Heritage Foundation's Center for Legal and Judicial Studies] offered up his opinion, which is worthy of consideration.
“Prop. 8 ruling ignores precedent, evidence and common sense”
by Edwin Meese III
Washington Post
Published: Tuesday, August 17, 2010
http://www.washingtonpost.com/wp-dyn/content/article/2010/08/16/AR2010081604254.html?wpisrc=nl_politics
Ed chose to apply his legal knowledge and experience to avoid the central issue in interpreting the law, along with his attempted diminishment of Judge Walker’s ruling in Perry [452]. Ed wrote, “By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.” He concluded, “The rule of law demands more careful consideration of this important issue than Walker's decision delivered.” The only Supreme Court decision he selected to support his opinion – Baker v. Nelson [291 Minn. 310 (1971)] – was actually an appeal of the Minnesota Supreme Court ruling that the Supremes dismissed off-hand as containing no Federal argument. I would not expect Ed to support equal rights for all citizens, but his rather shallow rebuttal to Perry is truly disappointing and dissing Vaughn Walker should have been beneath him, but suggesting Baker is definitive law regarding equal rights for non-heterosexual citizens is deceptive and flat wrong. This is the kind of pseudo-expert drivel that feeds ignorance.

This is not the only forum to which I write. The first letter to the editor to which I responded:
“If gay marriage, why not polygamy?”
by Bill LaPorte [of Moran, Kansas]
Wichita Eagle
Posted on Friday, August 13, 2010
http://www.kansas.com/2010/08/13/1444996/letters-to-the-editor-on-gay-marriage.html
[My] Letter to the [Wichita Eagle] Editor,
Bill LaPorte poses an interesting question for public debate. “If gay marriage, why not polygamy?”
OK, I’ll bite. Why not?
“Tradition alone, however, cannot form a rational basis for a law.” Williams v Illinois [399 US 235 (1970)]. The State must have a compelling interest dictating how private citizens are to live their private lives, to regulate their freedom of choice regarding “Life, Liberty and pursuit of Happiness.”
We all know, recognize and acknowledge the dicta of traditional marriage. I have no quarrel with those dicta. Yet, aren’t the choices for our private relationships personal and private? I certainly do not want other folks telling me how I am to conduct my life or my marriage. I feel no urge to judge the marriages of other citizens.
We do have a right to demand certain standards and limits for those who cannot manage their private affairs and place demands upon the public domain. We also have a responsibility to make sure that any citizen entering into a marriage contract does so freely, without coercion or pressure, and is able to consent to such relationships.
So, I ask, what are the compelling State interests in dictating how private citizens choose to live their private lives whether traditional, homosexual or polygamous?
. . . the second letter:
“doubt Obama is Christian”
by Margaret Talev
Wichita Eagle [McClatchy Newspapers]
Posted on Friday, August 20, 2010
http://www.kansas.com/2010/08/20/1454722/doubt-obama-is-christian.html
[My] Letter to the [Wichita Eagle] Editor,
Freudian slip, perhaps? The title on the above-the-fold, front page article in Friday’s newspaper was “Obama: No doubt Obama is Christian,” yet the title of the paper’s associated website article was “doubt Obama is Christian.” Odd, no?
What a truly sad, disappointing and even a little disgusting commentary on contemporary American society and culture. Questioning a man’s religion is living testament to the need for Thomas Jefferson’s “separation of church and state.”
Commentators on the day of the Eagle’s article expounded on prevalent public opinions that a non-Christian would never be elected President of the United States of America. Since when does religion become a pre-requisite for leadership, even including political leadership? Oh really! Why are we so bloody afraid of those who are not like us? Why do so many Americans believe that because his name is Barack Hussein Obama he must be a secret Muslim, claiming to be Christian to get elected? I say, so what? Why does religion define our competence to lead?
This Grand Republic has always been the beacon in the fog, the sanctuary for the downtrodden, abused and persecuted, and the haven for those who seek to be free. Demographics indicate nearly 80% of Americans consider themselves Christian. Is our faith that fragile that we must condemn those who do not believe as we believe?
As much as I would really like us to grow up, to mature, as a society, I am far more interested in realization of the ideal that formed this great nation – freedom. Freedom for all citizens regardless of the social factors – age, gender, religion, race, ethnicity, political affiliation, sexual orientation, or disability. Let us not condemn those who are not like us.

The controversy surrounding the recent WikiLeaks classified document disclosures [450] brought remembrance of an important Supreme Court case from my generation’s war – New York Times Co. v. United States [403 U.S. 713 (1971); no. 1873] – that rings strikingly similar tones to the contemporary version. Four decades ago, Daniel Ellsberg betrayed the trust the Nation placed in him, when he turned over to the New York Times, a 47-volume, 7,000-page, TOP SECRET document titled “History of U.S. Decision-Making Process on Viet Nam Policy,” AKA the Pentagon Papers. The document had been commissioned by Secretary of Defense Robert Strange McNamara in June 1967, covered the period from World War II to May 1968, and was completed in January 1969. Ellsberg stole the document and turned it over to the Times in early 1971. The case, precipitated by the Times, short-circuited the judicial process and demanded the Judiciary render judgment in substantially less time than the newspaper had to pour over the illegally disclosed documents. Chief Justice Warren Earl Burger drew pointed attention to that reality and the imprudent haste demanded of the Court. The Times published the first installment on Sunday, 13.June.1971. An injunction was immediately sought and granted, along with a feverish flurry of judicial activity. The case was argued before the Supremes on 26.June.1971, and the decision rendered on 30.June.1971. Associate Justice Harold Andrew “Harry” Blackmun observed, “Two federal district courts, two United States courts of appeals, and this Court - within a period of less than three weeks from inception until today - have been pressed into hurried decision of profound constitutional issues on inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should characterize the American judicial process. There has been much writing about the law and little knowledge and less digestion of the facts.” While the consequences of the legal interpretation are profound, it is the haste of this decision that dominates the outcome. The New York Times expertly manipulated the courts to its will, its agenda and its timing. We cannot help but admire the expertise of the Times editorial and legal staff. The 1st Amendment is direct and succinct: "Congress shall make no law . . . abridging the freedom . . . of the press . . . .” Associate Justice Hugo LaFayette Black equally and succinctly summarized the Court’s ruling, “[N]o law means no law.” Hugo acknowledged the expanded power of the Executive to impose on a citizen’s 1st Amendment rights during wartime; however, he closed off that line of reasoning, “But the war power stems from a declaration of war.” As Associate Justice William Orville Douglas noted, substantial weight was applied to the reality that the government did not seek and Congress did not pass a “declaration of war.” Does that sound familiar? Hugo concluded, “To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’” The argument is valuable, cogent and apropos. As with so many aspects of finding balance in a free society, we must define the limits – the thresholds – that establish and maintain balance. The Court argues the Press should have been commended for publishing the Pentagon Papers . . . apparently all because the Executive chose not to ask Congress for a declaration of war. As I tend to do in assessing such questions, would the Court’s opinion be the same if the betrayed documents had been a pending operations plan instead of a retrospect of decision-making? What if a dissatisfied civil servant in 1944 provided the documents of Operation OVERLORD to the New York Times, and the newspaper felt it had a free press obligation to publish operations plan? After all, what a magnificent news scoop that would be in April 1944 – imagine the sensation and notoriety for the newspaper – instead of thousands of lives lost, we might have lost tens of thousands and the invasion of Nazi-occupied Continental Europe might have failed on that Tuesday morning in June. Would the government enforceability depend solely on a congressional declaration of war? As a consequence of the 1971 Times ruling, the government faces daunting obstacles to prosecute WikiLeaks. As a by-the-by, Daniel Ellsberg was charged with multiple violations of the Espionage Act of 1917 [PL 65-030] and other statutes. The trial began on 3.January.1973. After President Nixon’s cronies worked numerous dirty tricks against Ellsberg, U.S. District Judge William Matthew Byrne, Jr. dismissed all charges against Ellsberg on 11.May.1973, citing gross misconduct by the Executive [and I think Judge Byrne was being kind, i.e., understating the seriousness of the government’s violation of Ellsberg’s constitutional rights]. I condemn Ellsberg’s betrayal; however, what Nixon’s “Plumbers” did make Ellsberg’s crimes look like spitting on the sidewalk.

A joint investigation by the Army and the Federal Bureau of Investigation into the WikiLeaks disclosure of classified documents has begun and is in the early stages. As noted above, prosecution will not be easy. Julian Paul Assange, 39, the rather nomadic Australian founder of WikiLeaks, has publicly indicated more American military classified documents are being processed for disclosure. In an odd twist and yet again another eerie similarity to the Pentagon Papers days, the Swedish government issued a warrant for the arrest of Assange on suspicions of rape and molestation; then, only hours later withdrew the warrant. Have a new generation of the “Plumbers” been created? I am no fan of WikiLeaks, but Nixon, his cronies and the “Plumbers” (and I should throw in J. Edgar Hoover) did far more damage to this Grand Republic than Assange and his website. In a free society, the ends do not justify the means.

News from the economic front:
-- The Associated Press reported that congressional budget analysts see the 2010 deficit exceeding US$1.3T – below the 2009 deficit.
-- As the Washington Post noted, Democrats say we need more stimulus, Republicans say we need less regulation and lower taxes; however, CEOs say they just don't trust American consumers will open their wallets in the coming years.

The Blago Scandal [365]:
-- Headlines read: Blagojevich – 23, Fitzgerald – 1. The sensationalized titles seriously overstate the results as Blago’s jury reported; it might have been appropriate if the jury had found him not guilty on 23 counts, but they did not. The jury reported that they could not arrive at a unanimous verdict on those 23 charges – a hung jury, neither guilty nor not guilty. The ever ebullient Blago will spin the results of his corruption trial to be vindication – rather obtuse reasoning, but that’s Blago. While he does so, let us not forget that in our system of trial by jury it only takes one (1) of 12 jurors to resist finding a defendant guilty, for any reason, whether that person finds Blago’s coiffure attractive, or his public narcissism and self-aggrandizement endearing, to cause a mistrial. Let us also not forget the travesty of 15 years ago when another jury of peers overcame substantial physical evidence to acquit a high-profile murderer. Yet, at the end of the day, this is our system, for better or worse, and so it shall be.

No comments or contributions from Update no.452.

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