I condemn the behavior and security risks the agents and DoD posed to the President and the very unbecoming reflection it taints the Secret Service with. I hold their debauchery in contempt. BUT CONGRESS? Wow, now that's rich!
Monday, April 23, 2012
Congress lecturing Secret Service...really?
I condemn the behavior and security risks the agents and DoD posed to the President and the very unbecoming reflection it taints the Secret Service with. I hold their debauchery in contempt. BUT CONGRESS? Wow, now that's rich!
Tuesday, November 15, 2011
Does God care about the 5th US Supreme Court of Appeals and their Ruling on the US Army Corps of Engineers?
The US Supreme Court 5th Circuit Court of Appeals is currently reviewing oral arguments between the plaintiffs and the US Army Corps of Engineers, that the Corps is liable for its incompetence in managing the levees of New Orleans, that led to the 2005 disaster.
The arguments are not that complex. Did the corps practice competently or not? Is the US Government responsible or not? Can insurance money (which was paid at 70% on the dollar insured by the way in a known and open conspiracy by US insurers) really cover and propitiate the level of disaster, impact on life, loss of life, loss of livelihoods, destruction of a city, and the emotional and mental anguish the citizens of New Orleans endured? The insurance money was a rip-off, there was some federal aid to make up the difference, but did it really "make it right"?
What would God want a government to do if it was liable? Would God want these people made whole and loved after abuse and such suffering? Would God care?
Read on?
Today’s question: When are flood waters not “flood waters”? We New
Orleanians have become fluent in all things subaqueous; last week three
Texans sitting on the Fifth Circuit Court of Appeals took their turn. Yes,
we’re talking about Katrina. Or, more specifically, its flood waters,
which busted federal levees in fifty places, swamped 80% of New Orleans,
and caused 800 deaths in the urban area. It is beyond argument that
federal malfeasance played a key role. But sovereign immunity under the
1928 Flood Control Act (FCA) seemed sure to prevent residents from
pursuing any flood-based claims against their government.
Yet as recent developments suggest, the case for immunity may not be nearly so open and shut.
Back in the 1920s, when the federal government assumed responsibility for levees on the Lower Mississippi, Congress worried that such a mammoth endeavor could expose the country to overwhelming liability. So they wrote into the FCA an immunity provision: “[no] liability of any kind shall attach to . . . the United States for any damage from or by floods or flood waters at any place.” This sweeping language has proved remarkably steadfast, if not occasionally abhorrent. Take, for instance, the time when federal operators idiotically opened floodgates of a recreational reservoir without first warning a group of waterskiers, one of whom was summarily sucked down the vortex and killed. In James v. United States(1986)a majority of the Supreme Court found government immunity too clear to avoid, leaving a trio of dissenting justices wailing about an outcome they called both “perverse” and “barbaric.”
But I digress.
The point is that after Katrina many assumed FCA immunity would shield the Corps from any responsibility for its wrongdoing. That changed in 2009 when federal trial judge Stanwood Duval held that the government’s broad immunity had limits. The case involved claims by residents in the New Orleans area for damages resulting from storm surge allegedly funneled through the Mississippi River Gulf Outlet, a now de-authorized navigation channel that locals called, “Mr. Go.” Plaintiffs assert that the Corps' negligence in design, construction, and maintenance of Mr. Go increased Katrina’s surge and made the levees more vulnerable than they otherwise would have been.
After an endless trial, Judge Duval found that the most important facts alleged by plaintiffs were all essentially true and that the Corps had been serially negligent. On the government’s assertion of FCA immunity, Duval wasn’t buying. Such immunity, the judge explained, did not cover harm caused by negligence unrelated to flood control management. Put another way, flood waters in everyday language are not “flood waters” in FCA language, unless their damage flows from a mishandled flood control project. And because Mr. Go was a navigation project, not a flood control project, the Corps’s immunity was gone.
Judge Duval awarded a total of $720,000 in damages to five plaintiffs, and the government appealed.
And so, last Wednesday a thoughtful Fifth Circuit panel (Judges Jerry Smith, Edward Prado and Jennifer Walker Elrod) pondered once again the fluid meaning of the term, “flood waters.” (Judge Duval had also rejected a second theory of immunity based on agency discretion, but that holding did not seem to interest the panel much.) (You can listen to the panel’s argument here.)
Now, as you have probably already figured out, this case is about way more than $720,000. The Army Corps has already received around half a million administrative claims from flood victims alleging similar facts. If the Fifth Circuit sides with the plaintiffs (and is not reversed on appeal) the precedent could leave the government on the hook for billions of dollars in future damages.
Plaintiffs’ lawyer Pierce O’Donnell reminded the court that FCA immunity has not always proved immovable. The Supreme Court, in Central Green Co. v. United States (2001), distinguished between irrigation water and flood-control water to hold the government liable for flood damage arising from negligent operation of an irrigation project. If you call Mr. Go’s surge “navigation water,” Mr. O’Donnell suggested, the plaintiffs win. Besides, he noted, there’s Graci v. United States(1969), a trial court decision the Fifth Circuit had itself affirmed years ago, that specifically holds that flood damage from the mishandling of a navigation project does not bring immunity.
Justice Department lawyer Mark Stern insisted instead that the statute’s plain meaning must control. But from the bench, hypotheticals came flying. What if federal construction workers accidently weaken a nearby levee and it breaks, does immunity accompany that kind of flood water? What about a naval ship that smashes through a levee? Or an Air Force jet that crashes through a levee? Or a scrap of the Hubble Telescope that sails out of orbit, screams through the atmosphere, and vaporizes a levee? (O.K., I made the last one up, but you see where this is going.)
And, by the way, what does the court do with Graci, that child of the ‘60s, which seems, after all, so directly on point? The court really doesn’t know what to do with Graci. No one even knows how to pronounce it. At one point an exasperated judge asked for a show of hands on whether one should say “GRAY-see” or “GRAS-ee.” Even after that, the parties couldn’t keep it straight.
Robert Verchick's recent book, "Facing Catastrophe: Environmental Action for a Post-Katrina World," will soon be available in paperback.
Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans. Bio.
1
The 5th Circuit CA has not favorably regared joint causation
constructions of insurance policies. So did these people already receive
some flood insurance compensation by private or NFIP policies as flood
damage and is this something that would collaterally estop the USACOE
from arguing against flooding as the cause? Also has the NFIP claimed
subrogation rights over any of the claimants claims? And did the lower
court review and determine factually that no portion of Mr. Go was
justified based on flood control or reduction?
-- William Cumming
The arguments are not that complex. Did the corps practice competently or not? Is the US Government responsible or not? Can insurance money (which was paid at 70% on the dollar insured by the way in a known and open conspiracy by US insurers) really cover and propitiate the level of disaster, impact on life, loss of life, loss of livelihoods, destruction of a city, and the emotional and mental anguish the citizens of New Orleans endured? The insurance money was a rip-off, there was some federal aid to make up the difference, but did it really "make it right"?
What would God want a government to do if it was liable? Would God want these people made whole and loved after abuse and such suffering? Would God care?
Read on?
November 15, 2011
Fifth Circuit Mulls Katrina Flood Ruling
by Robert Verchick
 |
Yet as recent developments suggest, the case for immunity may not be nearly so open and shut.
Back in the 1920s, when the federal government assumed responsibility for levees on the Lower Mississippi, Congress worried that such a mammoth endeavor could expose the country to overwhelming liability. So they wrote into the FCA an immunity provision: “[no] liability of any kind shall attach to . . . the United States for any damage from or by floods or flood waters at any place.” This sweeping language has proved remarkably steadfast, if not occasionally abhorrent. Take, for instance, the time when federal operators idiotically opened floodgates of a recreational reservoir without first warning a group of waterskiers, one of whom was summarily sucked down the vortex and killed. In James v. United States(1986)a majority of the Supreme Court found government immunity too clear to avoid, leaving a trio of dissenting justices wailing about an outcome they called both “perverse” and “barbaric.”
But I digress.
The point is that after Katrina many assumed FCA immunity would shield the Corps from any responsibility for its wrongdoing. That changed in 2009 when federal trial judge Stanwood Duval held that the government’s broad immunity had limits. The case involved claims by residents in the New Orleans area for damages resulting from storm surge allegedly funneled through the Mississippi River Gulf Outlet, a now de-authorized navigation channel that locals called, “Mr. Go.” Plaintiffs assert that the Corps' negligence in design, construction, and maintenance of Mr. Go increased Katrina’s surge and made the levees more vulnerable than they otherwise would have been.
After an endless trial, Judge Duval found that the most important facts alleged by plaintiffs were all essentially true and that the Corps had been serially negligent. On the government’s assertion of FCA immunity, Duval wasn’t buying. Such immunity, the judge explained, did not cover harm caused by negligence unrelated to flood control management. Put another way, flood waters in everyday language are not “flood waters” in FCA language, unless their damage flows from a mishandled flood control project. And because Mr. Go was a navigation project, not a flood control project, the Corps’s immunity was gone.
Judge Duval awarded a total of $720,000 in damages to five plaintiffs, and the government appealed.
And so, last Wednesday a thoughtful Fifth Circuit panel (Judges Jerry Smith, Edward Prado and Jennifer Walker Elrod) pondered once again the fluid meaning of the term, “flood waters.” (Judge Duval had also rejected a second theory of immunity based on agency discretion, but that holding did not seem to interest the panel much.) (You can listen to the panel’s argument here.)
Now, as you have probably already figured out, this case is about way more than $720,000. The Army Corps has already received around half a million administrative claims from flood victims alleging similar facts. If the Fifth Circuit sides with the plaintiffs (and is not reversed on appeal) the precedent could leave the government on the hook for billions of dollars in future damages.
Plaintiffs’ lawyer Pierce O’Donnell reminded the court that FCA immunity has not always proved immovable. The Supreme Court, in Central Green Co. v. United States (2001), distinguished between irrigation water and flood-control water to hold the government liable for flood damage arising from negligent operation of an irrigation project. If you call Mr. Go’s surge “navigation water,” Mr. O’Donnell suggested, the plaintiffs win. Besides, he noted, there’s Graci v. United States(1969), a trial court decision the Fifth Circuit had itself affirmed years ago, that specifically holds that flood damage from the mishandling of a navigation project does not bring immunity.
Justice Department lawyer Mark Stern insisted instead that the statute’s plain meaning must control. But from the bench, hypotheticals came flying. What if federal construction workers accidently weaken a nearby levee and it breaks, does immunity accompany that kind of flood water? What about a naval ship that smashes through a levee? Or an Air Force jet that crashes through a levee? Or a scrap of the Hubble Telescope that sails out of orbit, screams through the atmosphere, and vaporizes a levee? (O.K., I made the last one up, but you see where this is going.)
And, by the way, what does the court do with Graci, that child of the ‘60s, which seems, after all, so directly on point? The court really doesn’t know what to do with Graci. No one even knows how to pronounce it. At one point an exasperated judge asked for a show of hands on whether one should say “GRAY-see” or “GRAS-ee.” Even after that, the parties couldn’t keep it straight.
Robert Verchick's recent book, "Facing Catastrophe: Environmental Action for a Post-Katrina World," will soon be available in paperback.
Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans. Bio.
-- William Cumming
Tuesday, November 01, 2011
Red Letter Christians » Would Jesus Occupy Wall Street?
Would Jesus Occupy Wall Street?
by Dan Martin Monday, October 31st, 2011
The other day, a Facebook friend of mine posted a big caption on his profile: “JESUS Is With the 99%.” Predictably, he got a bunch of “likes” from his liberal buddies, and just as predictably, he got some major push back from his conservative friends. The Christian camp has divided along the usual lines, with one side loudly shouting that Jesus would join the rowdy crowd occupying the parks of our major cities, and the other side decrying the suggestion that Jesus might be even a tiny bit “socialist.” Sadly, if not entirely surprising, the proclamations on either end of the spectrum seem to reflect the political biases of the speaker with little, if any consideration for what Jesus actually said.
Whether or not Jesus would be with the whistle-blowing, bucket-thumping folks camped out in the parks is an interesting thought exercise, and one I’ll address in a bit. Quite apart from this question, any reasonable reading of the gospels and the prophets should make it patently obvious that Jesus would absolutely NOT be defending the Wall Street bankers and financial elite against whom the protesters are shouting.
In this regard, the biases of conservative American Christians have gone unchallenged for far too long. For the most part, I try to stay away from obviously partisan issues on this blog, but sooner or later we have got to face the fact that the Bible message is blunt and troubling: when their interests collide, God sides with the poor and marginalized against the rich and comfortable. When American Christians attempt to wrap a mantle of divine blessing around those in the upper strata of capitalism, they do violence to the clear message of scripture. Let’s take a look at some examples:
Usury Even before they entered the promised land, God explicitly forbade his people from charging interest when they loaned money to each other. Exodus 22:25 is the first such command, and in verses 26-27 it goes further to state that a cloak given in collateral for a loan must be returned at night so the debtor can stay warm. One might be tempted to say this only applies to charging interest to a fellow-believer (Jew in those days) who is poor, but just before in verses 21-24, God forbids other sorts of oppression of the sojourner, the widow, and the orphan. That context suggests to me that God might see anyone who is at economic disadvantage as “my people who are poor.” Leviticus 25:35-37 and Deuteronomy 23:19 reinforce the prohibition against charging interest to “a brother,” although Deut. 23:20 explicitly permits charging interest of a foreigner.
Lest we think this is just an antiquated concept from the Mosaic law, take a look at Ezekiel 18:5-18. Here, Ezekiel repeatedly refers to taking interest as an “abomination” worthy of death right up with robbery, adultery, and idolatry (see verses 8, 13, and 17). These verses echo strongly the Levitical law both in forbidding usury and in criticizing those who fail to return collateral. Nehemiah chapter 5 relates a similar account.
In stark contrast, the “financial services sector” embodied in Wall Street depends heavily upon the charging of interest…often exorbitant interest. While mortgage rates are at historic lows (for those who can qualify, that is), credit card interest is another matter, ranging from 10-14% for normal usage, but jumping as high as 30% for delinquent accounts. Factor in the myriad fees banks are now piling on top of their interest charges, and “usury” is not an unreasonable noun. There was a time when we actually had anti-usury laws in the U.S. More accurately, we still do in State law, but Federal law supersedes it for “National” banks.
What is more, the most usurious of rates and fees are most likely to fall on the poorest and least-educated of borrowers. This is in part due to the fact that they are deemed the highest-risk and most likely to default, and the usual defense of usury on the part of lenders is that the rates are high to compensate lenders for the risk of losing their money to default. I would counter that the recent rates of profit (and compensation packages) posted by the large banking institutions in this country suggest that whatever risk exposure they may have has been more than countered by the rates they charge, and of course mitigated even further by the taxpayer-funded bailout of the banking sector.
Likewise, the foreclosure of homes, cars, and other collateral clearly runs counter to the Biblical injunction to return a man’s cloak to him at night. Again, one may respond that the lender is only carrying out the terms of a loan contract into which the borrower freely entered. But is this true? I actually read the terms of my home mortgage before I signed it…all 30 or 40 pages of fine print. But how many, particularly among the less-educated, could understand those terms even if they did take the time to read them? And how freely have they entered into a contract when they see the loan as the only thing between them and hunger or homelessness?
No, the Biblical injunction is that, at least where the poor are concerned, lending should be done not for the investment benefit of the lender, but for the moral and vital support of the borrower. The world sees otherwise, to be sure. God’s math is different, and no amount of free-enterprise posturing can defend Christians from the fact that we are complicit in an industry that blatantly disregards the law of God.
Interestingly, we could learn a thing or two from Islam in this regard. When American Christians hear the word “Shariah,” they usually think of oppressed women, thieves getting their hands cut off, and all manner of capital offenses including converting from Islam. It is indisputable that some countries do implement Shariah in this manner. However, there’s another side to Shariah that, if Christian Americans knew about it, might scare them even more, and that’s laws guiding finance. I encourage interested readers to check out this article on Shariah-compliant investment to learn more, and even Google “shariah investment” to see how it’s being implemented. While some Christians might get lost in the legalism of the above article, the key elements are:
- Muslims must choose investments only in companies whose business activities do not violate the principles of Islam;
- Muslims may not invest in a company or fund that either charges interest or borrows money on interest;
- If a Muslim invests in a company (for capital growth or operating purposes), he may not do so on terms of a guaranteed return (i.e. interest), rather he must take what amounts to an equity position where he will share in the profit OR LOSS of that company. In other words, a Muslim investor must have “skin in the game.”
Infinite Accumulation A repeated refrain among Christians when they are faced with Biblical challenges to their wealth is to respond that God does not forbid or curse wealth itself, and this is true. The patriarchs were rich. The kings of Israel were rich and at least with David and Solomon, those riches are portrayed in the Bible as God’s blessing…however it’s important to remember that the prophet Samuel warned against the king and his cronies accruing wealth (see 1 Sam. 8:10-18). Some of Jesus’ followers were rich, too.
But the law of Moses has some interesting provisions that would have prevented the permanent creation of a wealthy class such as we see throughout history. I refer, of course, to the laws of sabbatical and Jubilee. Take a look at Deuteronomy 15:1-11. (I mean it. Take a break from this article and go read the law.) God provided in his law that debts (except to foreigners) would be canceled every seven years. He also provided that generous assistance to the poor was a non-negotiable requirement.
Now go read Leviticus 25–the whole chapter. In addition to the Sabbatical year described above, in the fiftieth year, any non-urban real estate that had been acquired over the last 49 years reverted to its familial ownership (and property was to be valued pro-rata by the number of years till Jubilee). Taking interest or profit from the poor is expressly forbidden (Lev. 25:36). (as an aside, have you notice that conservative Christians who advocate lower taxes on the basis of the Mosaic tithe, seem to have collective amnesia about Jubilee? Coincidence? I doubt it…)
Fast forward to Jesus. I have never encountered a Biblical scholar, conservative or liberal, who disputes that the “year of the LORD’s favor” Jesus announced in Luke 4:18-19, refers to the year of Jubilee. They may try to spiritualize it, but they don’t deny the allusion. Jesus himself said very little else about debt, though I can think of no reason “forgive us our debts as we forgive our debtors” somehow excludes debts of the financial sort. Of all the “you have heard it was said/but I say to you” statements Jesus made, however, I can think of none that justifies the infinite pursuit of acquisition –and indifference to the poor– that marks American society today.
WJOW? So…would Jesus occupy Wall Street? Obviously I don’t know. I suspect he would not be camping in the park and thumping drums with the protesters, but I rather think he’d show up there just the same. He’d blast the corruption and greed of the bankers with every bit of the zeal he showed when he cleansed the temple (John 2:13-17) or when he lambasted the Pharisees for their nitpicking on the edges of the law while neglecting justice (Luke 11:39-44). I do think he might encourage the folks who are there to at least be nice to the poor schmucks who will have to clean up the mess, and encourage people to keep the place neat while they’re protesting (after all, he did have his disciples clean up after the crowd in John 6:12).
I do know this…he’d be more likely to be in the park than in the boardroom at Goldman Sachs. If the Goldmans were ever to invite him in, he’d go, but if they listened to him, I think they’d wind up behaving rather like Zacchaeus in Luke 19:8. If you ever see bankers giving half of what they own to the poor, and returning fourfold anything they’ve taken by unjust means, then you’ll know that Jesus has …finally… been to Wall Street.
—-
Dan Martin has worked in health, international development, and information technology, and now lives in Atlanta with his wife and three children. Raised to look back to the source for his faith, Dan has been gripped by the contrast between the life Jesus described, and the practice of the church. Dan blogs on faith and discipleship at http://nailtothedoor.com.
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