Update no.457

Update from the Heartland

No.457

13.9.10 – 19.9.10

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

To all,
The follow-up news items:
-- The day finally arrived. On Sunday, 19.September.2010, the USG’s on-scene commander Admiral Thad William Allen, USCG (Ret.) announced the Macondo Well [442, 456] “is effectively dead,” after BP completed and tested the “bottom kill” cement plug – the well is permanently sealed. Now, the focus must be on the clean-up, environmental recovery, and of course the investigation along with corrective actions, if the facts warrant. This may not be politically correct, but I would like to congratulate BP for an extraordinary operation in plugging the well.

One more thought on the Craigslist fiasco [456], just because it continues to make me really angry. What happened to that website should make every true American mad as hell . . . but it won’t. To me, this unfortunate episode is one of the truly disgusting flaws in our society – a modern, contemporary version of the Scarlet “A.” For reasons that absolutely baffle me, we seem to have such an overwhelming penchant for the façade, feel-good, make-it-look-good image rather than the substance of any particular issue. We are offended by a drunk wobbling down the street, so let’s prohibit alcohol. We are disgusted by cigarette smoke, so let’s ban all smoke-producing, tobacco products. We are outraged that anyone might actually enjoys sex, so we outlaw sex toys and adult content stores. We are revolted by needless deaths in automobiles accidents, so we pass laws making not wearing your seat belt a violation of law. We don’t like fat people, so we pass more laws making it illegal to serve calorie-ladened foods or to use certain cooking oils. So many issues, we feel compelled to dictate how everyone else is to live their lives – to control their lives – since we know better what is good for them. If all these do-good’ers find so much comfort in bludgeoning Craigslist into censoring their advertising content ostensibly to help child sex workers, they should have used Craigslist to truly help those children . . . but, NO! Let’s force it off the web. Let’s banish it from public view, because it makes us feel better. Does anyone really think that by publicly humiliating Craigslist operators to remove their “adult” section they are helping children pressed into the sex trade even a twit? My gosh, I hope we are not that naïve, but alas, I know we are. We are all too content to obliterate something from public view and pretend that it actually fixes the problem, i.e., if we can’t see it, it must not exist. I am mad as hell at such nonsense. I have been accused of being a dreamer . . . for actually thinking we might mature as a society, but then comes an event like this that slaps me in the face . . . probably not in my lifetime. So, I write these words of condemnation because they make me feel better, in hopes that it helps just one other person think things through. We have found it convenient to use the instruments of State to make ourselves feel better without ever helping those who truly need our help. How bloody shallow and ego-centric is that! I am truly afraid for the future of my grandchildren and their grandchildren that we may have passed the point of no return in our acceptance of government deciding how we are to live our lives. Was freedom really that cheap and valueless that we give it away so easily . . . to make ourselves feel better about our beliefs, our moral values, our pursuit of Happiness? What on God’s little green Earth are we doing!

As noted in last week’s Update [456], United States District Court Judge Virginia A. Phillips in the Central District of California declared the Federal “Don't Ask, Don't Tell” law [PL 103-160] [312, 408] an unconstitutional violation of the 1st and 5th Amendments and issued a permanent injunction against enforcement of the law. Log Cabin Republicans v. United States [USDC CACD case no. cv-04-08425-VAP (2010)] Log Cabin Republicans formed in 1977 within the Republican Party to advocate for equitable treatment of homosexuals. They brought the case on behalf of its members, some of whom were or are members of the armed forces of this Grand Republic. The stories of those individuals cited in the court’s decision document are shameful in many ways; the violations of the privacy, dignity and respect due any and every citizen and especially those serving honorably on active duty in the military add a tragic dimension to this issue. The difference in this case from so many others is the invocation of the 1st Amendment. So many of these service members were discharged for words – just words – not poor performance and not for any observed physical action whatsoever. Judge Phillips’ decision will undoubtedly be appealed. I would expect the 9th Circuit to affirm. I eagerly anticipate the logic and reasoning of the Roberts’ Court. Unfortunately, we will probably have to wait for a year or two to arrive. Nonetheless, in closing, I have a sincere, legitimate and genuine question: why are folks so fearful of homosexuality? I understand people being inherently afraid of what they do not know or understand, but wouldn’t education and debate be a far more rational approach rather than blind faith to tradition?

On 13.February.2008, U.S. District Court Judge James Ware in the Northern District of California dismissed ACLU v. Jeppesen Dataplan, Inc. [289, 307, 323] – a constitutional challenge of the CIA’s extraordinary rendition and interrogation programs. The ACLU initiated the case on behalf of five (5), rendered, foreign nationals – an Ethiopian, Binyam Mohamed, 28; an Egyptian; an Italian of Moroccan origin, 40; an Iraqi, 39; and a 38-year-old Yemeni. The full bench of the 9th Circuit Court of Appeals affirmed the judgment of Judge Ware – Mohamed v. Jeppesen Dataplan, Inc. [9CCA no. 08-15693 (2010)]. In their motion to dismiss, the government claimed state secrets privilege, which in turn was a judicial creation established by Totten v. United States [92 U.S. 105 (1875)] [215, 306]. Just to be clear, the plaintiffs are foreign nationals apprehended outside the United States as part of the War on Islamic Fascism, and they are claiming protection under the Constitution of the United States of America. Apparently, plaintiffs saw an independent, services support company as far more vulnerable than the government with regard to their claims of the USG violated their constitutional rights. Jeppesen offers various levels of flight planning services from providing navigation charts to full flight plans with all the associated international clearances, landing permits & fees, detailed airport information, and such. Jeppesen neither acknowledged nor denied producing flight planning and other logistical support products to the CIA for the extraordinary rendition and interrogation programs, or any other alleged intelligence operation. Judge Raymond C. Fisher wrote for the court and concluded, “[W]e hold that the government’s valid assertion of the state secrets privilege warrants dismissal of the litigation, and affirm the judgment of the district court.” The dissent did not object to the government’s invocation of the states secrets doctrine rather the timing of the court’s judgment. Judge Michael Daly Hawkins, writing for the dissent, observed, “[The plaintiffs] are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties.” He concluded, “I would remand to the district court to determine whether Plaintiffs can establish the prima facie elements of their claims or whether Jeppesen could defend against those claims without resort to state secrets evidence.” To be frank, having read the entire ruling, I remained neutral; I could accept either argument; and for the record, I objected to the case at the outset [289]. Yet, footnote 5 to Judge Hawkins’ dissent ultimately turned me to the dissenting opinion. He noted from a sworn declaration that Bob Overby, Director of Jeppesen International Trip Planning Services, stated to other employees, “We do all the extraordinary rendition flights.” He also referred to those flights as “the torture flights” or “spook flights.” We do not know the contractual relationship between Jeppesen and the CIA. We do not know if Overby’s comments were just ill-advised, ill-informed, idle, water-cooler chat or juvenile bravado supposition, or a direct violation of a classified national intelligence program. What is it about secret that so many folks do not understand? At the end of the day, I suspect the Supremes will hear an appeal and will side with the 9th Circuit’s dissent, and will reverse and remand for the district court to review and render judgment regarding the plaintiffs’ case without classified material.

The Press assessment of the Supreme Court’s ruling for Skilling v. United States [560 U.S. ___ (2010); no.08-1394] peaked my interest for a case I did not hold much interest in reading . . . just did not want to waste my time with yet another greedy corporate crook. Jeffrey Keith “Jeff” Skilling is the disgraced former CEO of now defunct Enron. A jury of our peers found Skilling guilty of conspiracy, 12 counts of securities fraud, 5 counts of making false representations to auditors, and 1 count of insider trading; it acquitted on 9 insider trading counts. The Supremes decided two points of Skilling’s appeal. The majority affirmed the rulings of the district and appeals courts that pre-trial Press coverage did not prejudice the jury pool in Houston, that a change of venue was not warranted, and Skilling received a fair trial. However, the Court overturned Skilling’s conspiracy conviction for violation of the “honest services” statute -- actually, 18 USC §1346. The statute at issue was 28 words:
“For the purposes of this chapter, the term, scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.”
The law was created by: Title VII: Death Penalty and Other Criminal and Law Enforcement Matters; Subtitle O: Miscellaneous, of the huge Anti-Drug Abuse Act of 1988 [PL 100-690]. Associate Justice Ruth Joan Bader Ginsburg wrote for the majority and constrained the §1346 “honest services” law to “only the bribe-and-kickback” portion of the broadly accepted wider interpretation utilized by prosecutors to convict corporate criminals like Skilling. She concluded, “It is therefore clear that, as we read §1346, Skilling did not commit honest-services fraud.” While it would be easy to add this case to the growing list of pro-corporate rulings like Citizens United [424] and Hemi Group [425], it appears this decision is more a statement by the Supremes seeking to reign in overzealous prosecutors. Regardless, Skilling was the quasi-beneficiary of the Court’s retrenchment; yet, he is still Inmate no. 29296-179 at the Englewood Federal Correctional Institution in Littleton, Colorado, four years into his 28+ year prison sentence. The conspiracy conviction was remanded to the district court for re-trial. Jeffie’s request for bail was denied. We have yet to hear whether the State will retry him on the conspiracy charge; I suspect not in the shadow of this ruling and the standing sentence.

News from the economic front:
-- The Wall Street Journal’s monthly survey of economists showed continuing erosion in their growth forecasts for the remainder of 2010 and into 2011, and three in five economists expect the U.S. Federal Reserve to resume large-scale purchases of securities in the face of a deteriorating economic outlook—but, by a 3-to-2 margin, most of them also think that would be a mistake.
-- The Commerce Department reported U.S. retail sales rose 0.4% in August – the second consecutive month – driven by purchases of clothing, gasoline and groceries, while sales of autos and parts slipped 0.7%. Excluding automobile associated sales, all other retail sales rose 0.6%.
-- The Labor Department reported the seasonally-adjusted Consumer Price Index (CPI) for August rose by 0.3% from July. Meanwhile, core consumer prices, which exclude energy and food, were unchanged, which means inflation pressure remains low.

Comments and contributions from Update no.456:
Comment from the Blog:
“The reason for hammering over and over on 9-11 is simple, but does not involve academic considerations. The marketing of 9-11 keeps the American public angry and afraid and avoids any issues other than the horror of that day. Examining the failures of intelligence agencies, the apparent inability to capture one fugitive in nine years or anything else might endanger nice salaries and nicer profits for those who keep this going.
“Cheap labor is not comparable to a military invasion. Indeed, it is the American way. How do you think the railroads were built? the textile industry? American agriculture? Immigration was unregulated when those occurred, but otherwise the situation was very similar. Foreigners came here to take jobs Americans did not want. Farmers, restaurateurs, construction companies and those who hire domestic workers will continue to hire at illegally low wages for work that sometimes is under horrendous condition, and those jobs will be filled. The only immigrants who take desirable American jobs are in the information technology industry, and they come mainly from India and Russia, not Latin American. And somehow, I doubt that people who cannot produce ID can register to vote.
“Cap, I think you are stuck in your engineer box on the Macondo Well issue. None of the technical considerations outweighs the fact that BP and others are facing tens of billions of dollars in liability at the very least. Why would you tie the hands of the Justice Department in favor of letting BP produce a self-serving statement?”
My reply to the Blog:
The “marketing of 9-11” . . . interesting concept . . . with some merit I should think. However, such a notion does seem rather cynical, if you don’t mind me saying so.
So, using the rationale you offered, we should forget the notion of border protection and immigration control . . . correct? IMHO, only the truly xenophobic and racists among us would argue no immigrants. Since I know you are not xenophobic or racist, we are debating where the balance point lays between fully open and completely closed borders, as well as the associate immigration control. I thought I stated my position . . . perhaps too succinctly. I agree with you that this Grand Republic was built upon immigration, assimilation and growth. We need immigrants who want to become Americans, who enter this country by a legal vetting process. We also need manual labors who are generally under or uneducated; thus, we need a guest-worker or migrant worker program, whereby a person’s legal status from citizen to transient, migrant, farm worker can be openly checked and readily established, without reprisal or recrimination. Like so many of our societal ills, we don’t like certain behaviors, e.g., drug use, prostitution, gambling, temporary workers, et cetera, so we make them illegal, force them underground, and create an entire criminal subculture that feeds off those illegal behaviors. I would prefer we recognize and in fact honor those who seek to come to this country for harvest season, make a fair wage, and return home to their families when the harvest is done. I advocate for a guest worker program. That said, I still believe my analogy is valid . . . illegal penetration of our national borders and society is wrong whether the person carries a shovel, a rifle or a package of heroin.
You are entitled to think of me as you will. Regardless, I try (not entirely successfully I must add) to confine my reactions and opinions to facts. I read the BP Macondo Well report with interest, a fair amount of critical and skeptical observation, and where possible, sought collateral comparative information. Quite a few talking heads have condemned the BP report as self-serving since they identified companies responsible for certain sub-systems. I did not read the report that way. To be frank, I think BP went to extraordinary lengths to explain the equipment, operation and failures. This is not to say that the BP report was the exhaustive, definitive and conclusive examination we all seek; I’m afraid we shall not have such a report for many years, until the litigation is done (very sad, to my engineering brain). Nonetheless, it was an excellent preliminary report. As I noted, the BP investigation team acknowledged that certain critical elements of information were denied them (because of the government’s criminal investigation [I deduced]). Yes, BP is facing billions of dollars in liability, and to my knowledge, they have made no attempt to pass that liability to anyone else, including their partners; I should think they deserve credit for standing up to the mark. We do not find very many companies that volunteer their deficiencies. While I may well be buried in my little engineering box and unable to see the malfeasance of corporate greed, I stand before my critical brethren to say BP has risen above the early public perception in the aftermath. I believe BP is a company that is trying to do the right things in the wake of a tragic accident.
. . . follow-up comment:
“‘The “marketing of 9-11’ . . . interesting concept . . . with some merit I should think. However, such a notion does seem rather cynical, if you don’t mind me saying so." Certainly my idea will be unwelcome to idealists. All the same, cynics are proven right by historians much more often than idealists.
“I did not advocate for totally open borders, but I would certainly like to decrease the ethnically-based hysteria pervading the current discussion. I have Irish ancestors. Any study of 1850s America will tell you that they faced similar attitudes. Totally open borders are inadvisable due to the fact that criminals would generally like to move their operations to another country when their home nation seeks to jail them. A guest worker program is one of the more rational proposals, but it's a reasonable assumption that some of our "guests" would outstay their official welcome.
“Interesting sidelight: you stated, ‘. . .we don’t like certain behaviors, e.g., drug use, prostitution, gambling, temporary workers, et cetera, so we make them illegal . . .’ Temporary workers? I did that through most of the 1990s; it's legal here.
My point about the BP report is that the details of the equipment are not especially relevant; the actions of the people on that drilling platform and the official or unofficial policies upon which they were based will be the central issues. We can believe that the equipment specifications were reasonable, but then we must follow through the purchasing process, installation, and, most importantly, whether the equipment was used in a reasonable and safe manner. Those, in the end, are human behavior issues rather than engineering issues.
“I do not understand your statement that ‘. . . BP is a company that is trying to do the right things . . .’ They have a history of doing the greedy things, not the ‘right’ things. My statement comes not from cynicism but from readily available sources. The easiest way to study BP is to go to wikipedia.com and enter ‘BP’ in the search box. The sections called ‘Environmental Record,’ ‘Safety Record,’ and ‘Political Record’ are particularly illuminating. Wikipedia is not a recognized academic source, but many of the references at the end of the article work in that context.”
. . . my follow-up reply:
We shall see how history treats 9/11.
There have been many wrongs, abuses and violations in the past, but we do not live in the past. I freely acknowledge that previous generations of Americans did really bad things to immigrants – Irish, Chinese, Italians, Poles, Africans, ad infinitum. I will also acknowledge there are mindless xenophobes among us today, who garner a disproportionate voice due to the penchant of the Press for sensationalism. OK, then, we agree we need some level of border protection AND immigration control. If so, then how much? To my thinking, border protection means no one crosses the border without a proper visa; and if they do manage to get through, they can readily be discovered, captured and deported. Which means proper ID required everywhere. Counterfeits can be easily identified, and everyone is part of the reporting process. It also means we have an easy, controllable, interlinked visa process, so that consulates can rapidly issue work permits to fill demand.
I did not mean “temporary workers” in the normal employment context. I meant they are temporary “migrant or transient, foreign” workers, who possess a valid, legal, work permit.
Re: BP DH disaster: I interpret your words to mean that you have already established the cause as human error – neglect, complacency or criminal malfeasance. If we assume any accident involving a human being is by definition human error, then I suppose you are correct. I do not share that opinion, however. For example, if data being provided to the operator does not clearly define the situation, those data can be misinterpreted (in good faith), and subsequent actions may ultimately prove to be erroneous not because the operator did the wrong thing, but because the data did not properly establish the condition. As the BP report notes, human mistakes were made, but the report also clearly establishes that deepwater drilling is not precision operation. The comparison can be made to flying in the 1960’s versus flying with today’s technology; contemporary pilots have far more situational awareness than their predecessors, yet they still make mistakes. We will learn from this accident.
I am not judging BP by its prior history. My opinion is based upon what I have learned about deepwater drilling, what has been reported in the Press, and the BP report. Eventually, we will have an independent government report, presumably. For a corporation under the threat of massive liability, the public release of that report took no small amount of grit. Yes, the company was/is driven by the profit motive, as it should be. Yes, the decision-makers on that rig that day made mistakes. Yes, they made the wrong choices at time-critical moments in the sequence of events that led to the explosion and fire. Based on what we know so far, I am not ready to indict those folks. For the record, I respectfully disagree; sometimes the design is the problem. In the Macondo Well event, the design is certainly implicated, i.e., the information the system was giving them was not definitive, which led to the hesitation and erroneous decision(s).
After reading the BP report, I cannot discount the “get ‘er done” culture. Would another company have made the same mistakes given the conflicting information available at decision time that night? I suspect so, but I don’t have sufficient facts to emphatically make that judgment. Pilots still make mistakes, just as oil rig operators make mistakes. The task of the industry now is to figure out how to eliminate the confusion at time-critical moments in the well development.

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