A Brief Post to Share The Wonder Of Denali National Park

It rained as we drove up here, but the sky was blue when we woke up this morning with just puffy white clouds.  Lots of animals, a good hike, a little biking on the park road.

From our hike at Savage River.

Denali peeking through the clouds.

Ptarmigan - Alaska's state bird, mostly switched from (white) winter coloring to summer garb.

North Face of Denali.


It's really true about how nature changes one's body rhythms.  I just feel more alive here.  Even on a rainy day, but particularly on a day like today.  This is a brief stop at the visitor center to share this, I've got a campfire and dinner to take care of now.

SF 2: Beaches, Flowers, A Bridge

Part of yesterday's wanderings included the old Sutro Baths where Geary meets the ocean.  This is actually a National Park Service National Recreation Area with an interesting history that I'll let interested parties check out here.

The walk down to the beach area was filled with blooming flowers, birds, and bees.











This seems to be a coastal bush lupine.  The pollinator appears to be a Bombus vosnesenskii or yellow-faced bumblebee.

Part of what remains of the bath, including the two egrets.  

And here's what it looks like in the ocean - which was at high tide when we were there.  

 

Then we wandered some more and got to a point west of the Golden Gate bridge near Baker's Beach.  

From the National Park Service, again:

"Battery Chamberlin holds the last 6-inch "disappearing gun" of its type on the west coast. Built near Baker Beach in 1904, Battery Chamberlin was constructed to accommodate the lighter, stronger, more powerful coastal defense artillery developed in the late nineteenth century."

The trail from the beach to the Golden Gate bridge had lots of stairs.

It was a short, but wonderful time with the grandkids, and in San Francisco.  But it's raining today, time to get back to better weather in Anchorage.  

A note on the state of affairs.  My son, at age four, did not have the word "homeless" in his vocabulary.  But his four year old son uses that word all the time.

SF1: Clement +

After dropping the kids off at pre-school we wandered (foot and bus) around San Francisco.  Most of these pictures are on Clement, except for two on Geary.

A doorway like this ought to make some sort of impression on the kids that go to school here.

These last two are on Geary.

Flowers And Sky And Friends

We're in Oakland with very long time friends and today we go into San Francisco to gramp for a few days.  Our friend has a Tesla with a tinted glass roof.  (Probably they all do, but I have no idea.)  It made the sun in the clouds quite a show.  I'd note this this is the first new car my friend has every bought, but he did build and drive his own electric car over 30 years ago.

We had a great day and also visited other good friends and saw lots of flowers.

A poppy bud.











Another blooming.

And one that is finished blooming.  

Rhododendron.

















And an iris.  Just a small sampling of yesterday.

I'd note it's only about ten degrees warmer here now than it was in Anchorage when we left.

At Least Republicans Don't Have The Supreme Court As An Excuse To Vote For A Madman In 2020

Trying to find some silver linings and it occurred to me that in 2016 there were lots of reports of conservatives holding their nose to vote for Trump with the excuse that it was about the Supreme Court (more often than not, about abortion.)
Well, with a 5-4 majority, that excuse should be off the table.  But then that assumes some modicum of decency and reason.

That's all.  It's Saturday.  Get off your computer and get some fresh air and make the world a better place.  Try smiling or at least nodding as you pass by a stranger.  Add positive energy to the world.

I Didn't See The Falcated Duck, But A Trip To Potter Marsh Is Always A Good Idea

The ADN cover story today on the unusual* visit of a Falcated Duck to Potter Marsh was enough to get me in the car to go look.  A couple of years ago, the stray emperor goose that visited Loussac Library, stayed around long enough for me to see him.

So I thru a bike into the van - in case the small pullouts along the highway were full and I had to park a long ways off - and rode down.  But there was no trouble parking, and no Falcated Duck. (The link above has a picture.  It's a handsome bird.)

In fact it was very windy and the water was very choppy.

The most common birds were gulls.

And geese.  Though I also saw a grebe and some long pale necks with dark heads poking out of the grasses in the distance.

Way in the back I saw, through the binoculars, a couple of sandhill cranes land and disappear in the grasses.  Too far and too fleeting to get a picture.

And the background of the marsh, the greening hillside, was particularly beautiful in the binoculars.

Missing the falcated duck was a little disappointing, but I tried.  And yesterday I didn't even know the bird existed.  No reason to be upset, and I wasn't.  Sitting in the car, which bobbled in the wind at times, scanning the marsh with the binoculars was a great break all by itself.

*I used the word unusual because one report said first ever seen on the Alaska mainland.  But the ADN story says it more precisely - 'the first confirmed report of a falcated duck on mainland Alaska ever.'

It's Spring

It's definitely spring.  Even with mostly cloudy days, it's warmer and the plants are starting to wake up.   I rode over the the Botanical Garden the other day on my new bike.  I was able to trade in my old bike - the one the physical therapist said wasn't good for my knee - after about 35 years.

The peonies are in various stages from not even poking out yet, to just coming in as these in the left,










to looking like a real plant like the ones below.

And this oxlip primrose was actually blooming already.

Back home I knew we had a tulip bud that was well along.  

But I didn't realize we too had something blooming - there was one bleeding heart flower out.






We also had a visitor.  If you look closely you can see that something has dined on these lilies.  The most likely culprit is a moose.

And yesterday these white scuff marks weren't on the cement at the bottom of our front steps.  I wouldn't have figured moose hooves if it weren't for the lily.  There's still a lot left.  Maybe it didn't taste too good.

When The Ignorant Claim Executive Privilege To You

That's a loaded title.  And probably confusing.  Since I don't expect any of my readers to be speaking directly to the president or his immediate staff, I wasn't referring to the president when I said "the ignorant."  Rather I meant people who take the president's position that the Mueller Report and the president's tax returns are protected by Executive Privilege.

But it could also mean you the reader might not have looked closely at this term since 1974, or for younger readers, ever.  And it's also to make sure I'm on reasonably sound footing when I talk about the term.

I started this post thinking about how I understood the term back when the Supreme Court rejected Richard Nixon's claim of Executive Privilege back in 1974.   Back then, Nixon argued that the private conversations he had with his advisors needed to be protected so that he could get honest advice, not colored by the fear that what his advisors told him would be made public.  That they could consider a wide range ideas - some of which might be highly controversial - without fear that their conversations being taken out of context. Without out that bubble of confidentiality, it was argued, he might not get the frank, robust advice and debate he needed to make decisions.  (What we learned was that those discussions were often about covering up Nixon's involvement in the Watergate Burglary.)  


Background On My Thinking On This

My take on this is also tinged by my doctoral dissertation which was a reflection on the concept of privacy.  I disputed the common psychological take on privacy - that we all have some private core that needs to be protected from the world - and focused on privacy really as a power issue.  That covering that core was really about the consequences of revelation.  If they were good, people opened up.  If they were bad, people needed to hide the core.   Privacy is about individuals' power to withhold access to their information and power to gain access to other people's information. (There's also a slightly different but overlapping idea of being able to physically seclude oneself from others.)

By the time Nixon resigned, I had already begun researching my dissertation.  In fact his resignation took place while I was  taking an eight day intensive graduate course on privacy taught by Vince Barabba, Nixon's head of the Census Bureau.  It was during this class that Nixon resigned.


What others say about Executive Privilege 

1.   From the Cornell Law School's Legal Information Institute:

"Executive Privilege
Definition from Nolo’s Plain-English Law Dictionary
The privilege that allows the president and other high officials of the executive branch to keep certain communications private if disclosing those communications would disrupt the functions or decision-making processes of the executive branch. As demonstrated by the Watergate hearings, this privilege does not extend to information germane to a criminal investigation."

2.  From Justin Yang in the Penn Undergraduate Law Journal:

Executive privilege is the presidential claim to a “right to preserve the confidentiality of information and documents in the face of legislative” and judicial demands. [1] Although such a privilege is not an explicit right the Constitution grants to the executive branch, its justification is rooted in the doctrine of separation of powers. The argument is that if the internal communications, deliberations, and actions of one branch can be forced into public scrutiny by the other two co-equal branches of government, it will impair the supremacy of the executive branch over its Constitutional activities. This is because the president benefits from the executive branch’s advice and exchange of ideas , and forcing it all into public scrutiny can harm the integrity of these discussions. Additionally, it undermines the ability of the executive branch to hold sensitive military, diplomatic, and national security information. [2]

Of course, because executive privilege is not explicitly mentioned in the Constitution, its exact scope and extent is ambiguous and disputed. After all, it was not until the Watergate scandal in the 1970s that such a privilege of presidential confidentiality was first judicially established “as a necessary derivative of the President’s status in the U.S. constitutional scheme of separated powers.” [1] 

I'd note that Yang's footnote 2 comes before footnote 1.  But both are worth pursuing for more information on this question. 

Footnote 1 goes to a 2014 Congressional Research Report:   "Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments"

Footnote 2 goes to a Lawfare article "Primer on Executive Privilege and the Executive Branch Approach to Congressional Oversight"

From the Lawfare piece in Footnote 2:  

The [Supreme] Court held [in United States v. Nixon (1974)] that, notwithstanding the Constitution’s silence on the issue, executive privilege had constitutional underpinnings and derived from the nature of the president’s constitutional powers and obligations, presumably the vesting of the executive power in the president and the president’s authority and responsibility to ensure that the law is executed faithfully.  However, the Court rejected Nixon’s argument that the privilege was absolute and therefore precluded enforcement of the grand jury subpoena. Instead, at least when grounded in the president’s generalized interest in the confidentiality of his communications, the Court viewed the privilege as a qualified one, subject to a balancing of the competing interests and legitimate needs of the respective branches—and ordered the production of the tapes.

I don't expect to produce a Law Review ready article here as I explore this topic.  My main objective is to spark readers to look at this concept in more depth and be better prepared to challenge those who use as a safe-word to end further debate.

These quotes (and the articles they come from) should give people a good start.  But it also matters what the Supreme Court thinks, because this may well get there.  Since most of the pieces I saw on Executive Privilege point out the term is not in the Constitution, and because the conservative majority on the Supreme Court claim to be originalists, you might think that the idea should have no standing with them.  But that's only if you believe that originalist is more than a conservative branded anti-dote to the idea of The Living Constitution concept, which allows them to interpret the Constitution to support their own values.  [See an earlier post I did on the concept of Originalism after Justice Scalia died.]

So it seems useful to look at what The Federalist Society says on this topic.  Unfortunately, I can't find a straightforward statement on their website.  However, there is a debate in which Michael Dorf enumerates five reasons given my Democratic members of Congress why Executive Privilege would not apply.   Unfortunately, I can't really say that this debate represents Federalist Society thinking,  But it does give more practical questions that will be raised.  

It's a debate on whether President Bush (W) could use Executive Privilege to stop his "former presidential counsel Harriet Miers and former political director Sara Taylor from testifying before Congressional Committees regarding the firing of certain U.S. Attorneys."  This is law professor Michael Dorf's opening statement:

That memo states five objections to the assertion of executive privilege.  Two of them are highly technical: (1) the President himself must personally assert executive privilege, but he has not; and (2) Harriet Miers must, but did not, submit a "privilege log."
The third objection rests on what strikes me as a faulty understanding of executive privilege: (3) there has been no showing that President Bush himself received advice or was even involved in the underlying decisions regarding the U.S. Attorneys.  I consider this a faulty view because we have a doctrine of "executive" privilege rather than "Presidential" privilege.  Rooted in separation of powers, it protects the confidentiality of communications within the executive branch.  To be sure, in United States v. Nixon, the Supreme Court talked about the "privilege of confidentiality of Presidential communications," but that's because the case itself involved such communications.  InCheney v. United States District Court, although the issue was not directly presented, the Supreme Court appeared to accept that the Vice President could raise a claim of executive privilege.  (VP Cheney had not yet announced that he's a member of the legislative branch.)
Moreover, precedent aside, it makes sense to extend executive privilege beyond communications directly with the President.  In the same way that a claim of "judicial privilege" should protect (at least as a prima facie matter) case-related conversations among lower federal court judges or even their law clerks, rather than just those between Supreme Court Justices and their respective law clerks, so it seems that executive privilege ought to protect some discussions in which the President does not directly participate.  This view may pose problems for those who believe strongly in the unitary executive—including the current occupant of the White House—but that's not a reason for the House of Representatives to adopt a faulty view of the privilege.
The heart of the House case is the fourth objection: (4) Even if the privilege were properly raised and applicable, it would be outweighed by the House's need for information relevant to investigating serious wrongdoing.  As in the Nixon case, so too here, there is no plausible national security justification for keeping the material secret, and prior administrations have declined to assert executive privilege where Congress sought evidence of wrongdoing by the administration itself.  Whether this objection is correct as a matter of case law depends on whether Nixon—with its demanding burden of persuasion on the administration—applies outside the context of a criminal prosecution.  The Cheney case suggests that it may not, but this is an open question: We can grant that executive privilege is entitled to greater protection in civil cases than in criminal cases; it does not follow that it is entitled to less protection in a direct conflict between the House and the President.
The fifth and final objection appears technical: (5) When a private citizen faces a congressional subpoena and the White House asserts executive privilege, the proper course is for her to comply, unless the White House succeeds in obtaining a court order blocking her from doing so.  This is not merely a technical objection, however.  If correct, it would force the administration to go to court as plaintiff seeking a protective order rather than as a defendant against a motion to compel testimony.  It's disadvantageous to be the plaintiff in these cases because a judicial decision to stay out benefits the defendant.

OK, I've already spent way too much time on what was supposed to be a simple short post.



What can we take from this limited look?

Key Points On Executive Privilege

1.  There exists something called Executive Privilege that is not mentioned in the Constitution, but is said to be implied.   "[I]ts justification is rooted in the doctrine of separation of powers. The argument is that if the internal communications, deliberations, and actions of one branch can be forced into public scrutiny by the other two co-equal branches of government, it will impair the supremacy of the executive branch over its Constitutional activities " 2.  Its purpose is to allow :   "the president and other high officials of the executive branch to keep certain communications private if disclosing those communications would disrupt the functions or decision-making processes of the executive branch."  3.  Its limits are not absolute.  From the Congressional Research Report cited, but not quoted, above: "The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need."

This is, of course, a simplification, but I think that at least these points are agreed on by most who use this term honestly and not as a political weapon.

 If one were to be flip, one could argue that #2 is irrelevant in Trump's case, because he's already disrupted the functions and the decision making process of the executive branch himself, way more than any disclosures to Congress might.  The damage to our country could reasonably be argued to be in far more danger from not disclosing the details than from disclosing them.


As an endnote, I should explain the source of my bias on this.   My doctoral dissertation and subsequent experience cause me to believe that when it comes to government, the danger of too much information being released is less of a problem than too little being released.

Let's look at another example of conflict between releasing information versus concealing it. Most of the information that Edward Snowden released was problematic because:

• releasing it was illegal
• it was  embarrassing to the officials involved, rather than because of provable damage it caused.  

That doesn't mean that there was no damage,  but  I would argue that whatever damage there might have been, was the cost of revealing the massive spying the US government was illegally carrying out on US citizens.

The damage seems limited to revealing intelligence techniques to other spy agencies.  And we hear a lot of risking people's lives, but so far there have been no publicly revealed cases of that happening.  Instead we get wringing of hands over what could happen.  Here, for example, is a Chicago Sun Times article titled "Snowden leak costs still being counted five years later."  What costs do they list?  

According to Melstad [Joel Melstad, a spokesman for the counterintelligence center], Snowden-disclosed documents have put U.S. personnel or facilities at risk around the world, damaged intelligence collection efforts, exposed tools used to amass intelligence, destabilized U.S. partnerships abroad, and exposed U.S. intelligence operations, capabilities and priorities.
“With each additional disclosure, the damage is compounded — providing more detail to what our adversaries have already learned,” Melstad said.

The article, despite the title,  has no 'count of losses.'  Just a hypothetical list of potential, conceptual problems.  The hypothetical risk of the death of a CIA informant  suddenly takes on great significance and justifies concealing major illegal governmental action, while the actual deaths of kids in US detention centers on the Mexican border, or of people who couldn't afford the increased price of their insulin are seen as unfortunate collateral damage to upholding anti-government ideology.

Again, secrecy and privacy give these agencies the cover of never having to give specifics.  It's about risks.  Not about specific instances of death or harm.   Snowden's lawyer, also quoted in the article counters Melstad's take:

". . . [Snowden’s lawyer, Ben Wizner] said the government has never produced any public evidence that the released materials have cause “genuine harm” to U.S. national security.
“The mainstream view among intelligence professionals is that every day and every year that has gone by has lessened the value and importance of the Snowden archives,” Wizner said. “The idea that information that was current in 2013 — and a lot of it was much older than that — might still alert somebody to anything in 2018 seems like a stretch.”

The point I'm making is that the secrecy does harm as well - like illegally spying on Americans - that also needs to be weighed in the balance.  We have to weigh whether the argument offered (in this case Executive Privilege)  is being legitimately applied, or is simply a smoke screen to cover up unsavory and illegal practices.   I hope this gives you more depth when people throw Executive Privilege around and stimulates you to find out more than my attempts at understanding allow.

Learning How Tom Clancy Novels Keeping Coming Even Though He Died In 2013

The notice said that the author of the Tom Clancy thriller series was speaking at UAA.  I knew vaguely that this was a best selling author and I even thought I'd read one of the books, but it was hazy and I didn't have time to look it up before I went.  If there's a famous author coming to talk and I can ask questions - and more importantly, I can fit it on my schedule - I try to do it.

That's where my head was when I got to the UAA bookstore.

Marc Cameron started talking.  The talk was basically about writing and publishing - very little
about his books and their characters. As he spoke my mind twisted and turned.  Here was an author telling us about how he wrote books that have a dead author's name in giant letters on the cover and his name, much smaller on the bottom.

Teachers:  He mentioned two teachers who changed his life, making him believe he could be an author. One short story was totally marked up in red ink and had a C- (I think that's what he said), but at the very end, said, "I think this is publishable."  Another teacher - in theater - told him he moved like he had a broomstick up his butt, and this scarred him for life he said.  He still won't get up on the dance floor.

Blurbs - He mentioned one author who, when thanked by an author for whom he'd written a book jacket blurb, said, "I either read 'em or blurb 'em, but not both."   And Cameron said most of his blurbs credited to him were written by the publisher.  I guess that makes sense for someone who writes books that have another author's name.  When asked about the evolution of the Tom Clancy series, he likened it to movies - how many James Bonds have there been with different actors playing Bond?

Writing methods - He has a plan for the whole book and knows how it will end before he starts.  He usually has four or five different plots going and he has to map out how they intersect. Every chapter ends with a major unresolved issue that requires the reader to go to the next one to find out what happens.  The publishers pick the titles based on marketing strategies.  He keeps some of the original author's style - like offering esoteric explanations about items used by the characters - but not the way Clancy did.  Nowadays, he said, we have Google, so readers can easily look things up.  He tries to write the best he can, but he's telling suspenseful stories, not writing art.  Though he sometimes slips in something more 'artful' which may or may not be cut by the editors.

Money - He talked about authors getting something like 8% of the price of each book.  So he has a decent cash flow - given advances, hard back, second publications, paperback editions - but that if he stops writing, that will slowly dry up.  He'd mentioned that the estate of Tom Clancy owns the rights and decide who carries on the series.  When asked if that meant his royalties were less, he said he gets paid a flat fee to write those books.

I found myself reevaluating my stereotypes of 'hack' writers.  Cameron, in answering a question, told an anecdote about Ken Follett who was host for a literary award dinner.  The well known author award recipient said something about not thinking about the reader when he wrote,  and Follett was reported to have said, "That's why you win awards and I'm rich."


The sense I got of Cameron was that

• He wanted to write from an early age.  He mentioned reading Where the Red Ferns Grow and also noting that his teacher loved it too and that it moved her to tears.  He wanted to be able to affect people like that.
• For Cameron, writing is a job.  He likes the writing and being able to have a portable office and the idea that people buy his books and are somehow affected by them.
• He is a story teller, writing stories that pump people with adrenaline, that take them out of their daily and less satisfying lives.  And he has to compete with video games and Netflix binging.  
• He likes that he can earn a good living this way.  

It was good for me to hear him talk.  It's clear he works very hard.  He may be more like a factory worker producing formulaic books than a writer of literature, but he's good at what he does and serves his audience what they want.  And he's totally honest about what he does.  And I've been reminded of one of my unwarranted prejudices and am correcting it.  I may even read one of his books.  If you check the Wikipedia link I put on his name above, you can get a list of his books.  

Sometime during the talk, I realized that the Tom Clancy book I'd read was The Hunt For Red October, a book written by Tom Clancy.   

Nature's Ways

After Vic Fischer's birthday party yesterday we went a little further south to Potter's Marsh.  It was cold and windy with errant raindrops thrown in.  While the birches on the hillside above were showing green, the grasses at the marsh weren't.

Below the end of the boardwalk was a moose carcass.  Don't know who took it down - bear, wolves?  Hunger?  Old age?  But it's the natural cycle when humans are not part of the picture.

I started thinking about this when I read a story in the ADN about the aftermath of the Hawaii volcano eruption last year.  The article talks about the volcano as a  'disaster.'   And sure, it was for the people who lost their houses either to the lava or the toxic gases that make the other houses inhabitable.

But back in 1970 when I worked at a Peace Corps training program in Hilo, Volcano National Park was already there and people nearby lost their houses in an eruption a few years later.  The volcanic eruption is different from other natural disasters the earth is experiencing because it's not, to the best of my knowledge, related to climate change.  This is a natural process that has been happening for millennia.  

Kīlauea started as a submarine volcano, gradually building itself up through underwater eruptions of alkali basalt lava before emerging from the sea with a series of explosive eruptions[20] about 50,000 to 100,000 years ago. Since then, the volcano's activity has likely been as it is now, a continual stream of effusive and explosive eruptions of roughly the same pattern as its activity in the last 200 or 300 years.[21]

The people who bought houses there knew about Pele, it was part of the beauty of the area.

[I've just deleted the rest of this post because it was wandering thoughts and needed more editing.  This is enough for now. Maybe I'll do a Part 2 of this post.  The basic idea was that human existence is hardly necessary for the earth.  In fact humans are wantonly destructive of the paradise they were given.]