Courts, Martial and Otherwise (6/23/10)

Here is where I shall vent my spleen on whatever political topic might cross my mind on a given day. Comments or responses may be posted to whatever forum might be appropriate to that particular topic.

Courts, Martial and Otherwise (6/23/10)

Postby Ferguson Foont » Wed Jun 23, 2010 8:09 am

About Stanley McChrystal:

What Stanley McChrystal did was not forgivable. His resignation should NOT be accepted. He needs not only to be affirmatively removed from his post, even if it includes loss of pension and a dishonorable discharge. He needs to be utterly disgraced and an example must be set of him to discourage such behavior by top military officers in the future. He must never be permitted to hold any office of trust in the United States again throughout his life.

Our liberty absolutely depends on maintaining a supreme and unquestioned civilian control over our military. When that control is diminished we the risk of loss of our liberty and our democracy. Stanley McChrystal's offense is extremely serious in that not only did he express contempt for our civilian officials, he encouraged his subordinates to do so as well.

His actions richly deserve and must receive a court martial on insubordination charges, and he will certainly be found guilty because he is provably guilty. His particularly sensitive position in the military hierarchy and the egregiousness of his offense warrants the severest penalty.

In most nations that have existed throughout the history of the world he would face execution. In some with more developed social institutions, like Rome, he might be given the choice between taking his own life or having the executioner take it from him. We have progressed since those days (well, in some ways anyhow), but if we tolerate Stanley McChrystal's contempt for the civilian authority, an authority he should revere and to whom he owed his position, we risk encouraging bolder departures of our military from civilian control, and we risk the very values on which our nation was founded.

This cannot be borne. Stanley McChrystal must be treated as harshly as our laws, both civilian and military, allow. To do otherwise will be to reveal a weakness in our civilian defense hierarchy and our very institutions of government that rasher men will view as an invitation to seize the moment when decisions go against the military, and attempt a coup.

On The Oil Drilling Moratorium:

Yesterday, Judge Martin L. C. Feldman of United States District Court for the Eastern District of Louisiana, a Reagan appointee, issued a preliminary injunction against the enforcement of Barack Obama's moratorium on offshore exploratory drilling in more than 500 feet of water. Heretofore his most notable decision involved dismissing RICO charges against the owner of a private development, Clipper Estates in New Orleans, charges that had been brought because of the development owner's repeated and systematic conversion of Katrina relief funds to his personal use. The case is subject to appeal but no appeal has yet been filed.

It is interesting to note that Judge Feldman has extensive financial holdings in offshore drilling concerns, including TransOcean, the owner of the Deepwater Horizon drilling rig. Indeed, it appears that Judge Feldman's entire financial portfolio, as claimed in periodic disclosure forms required of our Federal judges, ignores the common advice to diversify and is instead entirely devoted to companies whose purpose is offshore oil drilling, many of which are directly impacted by the moartorium. An honorable judge obviously would have recused himself from this case.

Additionally, this ruling had a number of what I find to be curious aspects to it. First, it seems to be based exclusively on an assessment of the technical justification for such a moratorium. This converts to the judiciary a role in our government that is reserved by statute to the executive regulatory agencies. His ruling denies that the Federal government has the duty to regulate commercial activities on Federally reserved property, despite a long and unquestioned statutory history to the contrary. This, of course, is absurd on its face.

But the technical justification for this ruling relies on grounds that are so bizarre that they would be hilarious if they were not related to such a tragic event as the Deepwater Horizon disaster. First, it contains this notion that ALL deep water drilling concerns are being blamed for the transgressions of only one of their number. This, of course, presumes that the moratorium is some form of punitive action rather than an effort to protect the citizenry and environment from further destruction. It also presumes that all oil producers behave differently, a presumption that is refuted by the similarities in their disaster prevention plans (for example, all of them, regardless of the company in question, contained references to walruses in the Gulf of Mexico). Their technologies, safeguards, and abilities to respond to such crises in deepwater installations are IDENTICAL.

Secondly, it invokes an interesting analogy with the other accident-prone industries. An actual quotation from the decision: "If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy handed and rather overbearing."

Well, it's true, we don't shut down whole industries for a single accident. Nor did this moratorium seek to shut down the entire oil industry, or even offshore drilling, but it only applied to drilling ad depths greater than can be reached by divers.

But, to take the airline portion of the analogy in hand, there are literally MILLIONS of airline flights annually, but very few airline crashes. When airliners do accidentally crash, the damage to anyone except those on board the plane is generally quite limited in scope. And if even a very, VERY small percentage of the same type of airliner is involved in multiple crashes, that model of plane is in fact grounded until the cause of their crashes are discovered and corrected. And we did in fact ground our entire airline industry in response to the deliberate (not accidental) crashing of airliners into the World Trade Center in 2001.

But in contrast to the number of airline flights that take place, there are only 33 deepwater oil rigs in operation today, and one of them has already failed in a manner that has caused damage of a scope far beyond that of all airline crashes throughout history combined. Where airliners experience failure at a rate that requires six zeros to the right of the percentage point to express as a percentage of all flights (i.e. .0000003%), a full 3% -- no decimal point needed -- of all deepwater rigs in operation have failed, and the result of that failure has been damage beyond anything any airliner could possibly wreak.

Furthermore, there is no indication that these companies have any notion how to stop, or even to prevent, such a leak in the future. Should this accident recur, the response to it would not differ from the failed response to the Deepwater Horizon disaster, and the damage would be of similar scope.

The moratorium was well-reasoned, moderate to the point of bending over backwards for the oil industry (remember, it postponed only drilling in over 500 feet of water, which is the limit that divers could reach), and absolutely necessary given the extent of the risk and the absence of sufficient technology to reduce that risk. I would love to be able to trust the Circuit Court to overturn this whimsically bad decision, but with the appeal coming before the archly right-wing Fifth Circuit this is by no means a sure bet despite the obviously invalid nature of Judge Feldman's highly biased and thoroughly irrational decision.

Some people welcome it because some jobs depend on deepwater drilling rigs. Well, some jobs depend on fishing, too. Also, a lot of jobs (a lot more than are dependent on deepwater drilling) depend on the ability to manufacture and market heroin and cocaine with impunity. Are the laws against such activity similarly "heavy handed and rather overbearing?" as Judge Feldman might put it? (Well, maybe so, but...)

Another related and rather disturbing point, although only tangentially related to the moratorium and the decision to overturn it: It seems to me rather clear that BP's focus since the accident occurred was not to plug the well and stop the flow of oil but to place the well into production so that the oil could be harvested and the profits from it collected. Many possible solutions to close the gusher were bypassed in favor of other, riskier, less promising schemes that would permit the oil to continue to flow so it could be collected. This remains the situation to this day.

It is not in the nature of corporations to behave altruistically (although it is frequently in their interests to pretend that they do -- that's why they employ so many clever people in their public relations departments). They are in it solely for the money. To lose a source of profit in the magnitude provided by the amount of oil that this well could produce is not something BP sees as being in its interests, and they will act in their EXCLUSIVE interests, as do all corporations.

These are facts that the Supreme Court seems to have chosen to ignore in its "Citizens United" ruling (among others).

Th-th-th-th-that's all for now, folks.
Republicans whine and Republicans bitch: "Our rich are too poor, and our poor are too rich."
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