In his response, Wittes generally agrees that our use of drones has implications for sovereignty. But he goes further–arguing it has implications for governance–and focuses particularly on the way technology–rather than the increasing importance of transnational entities I focused on–can undermine the nation-state by empowering non-state actors.

I agree emphatically with Wheeler’s focus on sovereignty here–although for reasons somewhat different from the ones she offers. Indeed, I think Wheeler doesn’t go quite far enough. For it isn’t just sovereignty at issue in the long run, it is governance itself. Robotics are one of several technological platforms that we can expect to  greatly enhance the power of individuals and small groups relative to states. The more advanced of these technological areas are networked computers and biotechnology, but robotics is not all that far behind–a point Ken Anderson alludes to at a post over at the Volokh Conspiracy. Right now, the United States is using robotics, as Wheeler points out, in situations that raises issues for other countries’ sovereignty and governance and has a dominant technological advantage in the field. But that’s not going to continue. Eventually, other countries–and other groups, and other individuals–will use robotics in a fashion that has implications for American sovereignty, and, more generally, for the ability of governments in general to protect security. [my emphasis]

Given DOD’s complete inability to protect our computer toys from intrusion, I’ll wager that time will come sooner rather than later. Iraqi insurgents already figured out how to compromise our drones once using off-the-shelf software.

Militants in Iraq have used $26 off-the-shelf software to intercept live video feeds from U.S. Predator drones, potentially providing them with information they need to evade or monitor U.S. military operations.Senior defense and intelligence officials said Iranian-backed insurgents intercepted the video feeds by taking advantage of an unprotected communications link in some of the remotely flown planes’ systems. Shiite fighters in Iraq used software programs such as SkyGrabber — available for as little as $25.95 on the Internet — to regularly capture drone video feeds, according to a person familiar with reports on the matter.

It may not take long, then, for a country like Iran or an entity like a Mexican drug cartel to develop and disseminate a way to hack drones. And given the way other arms proliferate, it won’t be long before drones are available on the private market. (Incidentally, remember how some of the crap intelligence used to trump up a war against Saddam involved a balsa-wood drone? Great times those were!)

So Wittes and I are in pretty close agreement here; he even agrees that the larger issue “ought to be the subject of wider and more serious public debate.”

But shouldn’t it be, then, part of the question whether facilitating this process serves national security or not?

In the interest of fostering some disagreement here–er, um, in an interest in furthering this discussion–I wanted to unpack the thought process in this passage from Wittes’ response to Spencer with what appears to be Wittes’ and my agreement in mind:

The point with merit is the idea that drones enable the waging of war without many of the attendant public costs–including the sort of public accounting that necessarily happens when you deploy large numbers of troops. I have no argument with him on this score, save that he seems to be looking at only one side of a coin that, in fact, has two sides. Ackerman sees that drones make it easy to get involved in wars. But he ignores the fact that for exactly the same reason, they make it easier to limit involvement in wars. How one feels about drones is partly conditioned by what one believes the null hypothesis to be. If one imagines that absent drones, our involvement in certain countries where we now use them would look more like law enforcement operations, one will tend to feel differently, I suspect, that if one thinks our involvement would look more like what happened in Iraq. Drones enable an ongoing, serious, military and intelligence involvement in countries without significant troop commitments.

As I read it, the logic of the passage goes like this:

1. Drones minimize the costs of involvement in wars
2. We will either be involved in these countries in a war or a law enforcement fashion
3. Therefore, we’re better off using drones than large scale military operations

Now, before I get to the implications of this logic, let me point out a few things.

First, note how Wittes uses “what happened in Iraq” as the alternative kind of military deployment? As I said in my last post in this debate, I do think Iraq may end up being what we consider our last traditional nation-state war for some time, so I suppose it’s a fair invocation of an alternative. But Iraq was also characterized, for years, by willfully insufficient planning, and it was an illegal war of choice in any case. If the only option is military intervention, why not compare drones with a more effectively-run more legitimate war, like the first Gulf War? Or why not admit the possibility of what we’ve got in Afghanistan, another incompetently executed war (largely because Bush moved onto Iraq before finishing Afghanistan) which now seems almost to serve as an incredibly expensive excuse to keep drones in the neighborhood.

Also, note the things Wittes doesn’t consider among the possibilities here, such as diplomacy or non-involvement. We’re not using drones (not yet, anyway) against Syria, Bahrain, or Ivory Coast, all of which share some similarities with Libya. So why–aside from the oil–should we assume we have to get involved in any case? Shouldn’t we first consider using tools that don’t create more failed states?

And even if we’re going to be involved militarily, there’s the additional choice of using just special forces, which has the same kind of small footprint and low cost, but–up until the point you use them to kill Osama bin Laden–slightly different legal and strategic implications than drones (though ultimately someone is going to capture members of our special forces and treat them as unlawful enemy combatants).

Mind you, I’m not saying these alternative tools necessarily are the ones we should be using, but we ought to remember the choice isn’t as simple as war versus law enforcement.

That said, Wittes is coming to this–and to the larger question of counterterrorism–from a perspective supporting significant (though not complete) use of a war framework. For those who do, doesn’t that make the logic I laid out above–added to the seeming agreement that drones are one new development undermining the nation-state–look something like this (the additions are in bold)?

1. Drones minimize the costs of involvement in wars but undermine nation-states
2. We will either be involved in these countries in a war or a law enforcement fashion
3. Given that binary choice, we favor a military involvement in these countries
4. Therefore, we’re better off using drones than large scale military operations
5. A consequence of that choice will be popularizing a technology that will undermine nation-states, including our own
   

Admittedly, I may be pushing the logic here, as well as the extent to which Wittes and I agree about the implications of drones. Nevertheless, this logic summarizes the reason we need more debate here–partly because we’re using tools without consent, partly because we’re not considering potential unintended consequences–particularly in the form of more failed states–of our choices. But also because, in the name of “national security,” we seem to be pursuing policies that will weaken our own nation-state. (Compare this with cyberwar, where, after we ratcheted up the strategy with Stuxnet, we are at least now–perhaps cynically–trying to establish an international regime to cover the new strategy.)

Now consider what’s happening at the same time, in the absence of a real debate about whether we need to launch drones against another country. We had 159 and 238 Americans die in tornadoes this year that were almost certainly an early example of the kinds of severe natural disasters we can expect from climate change; but we’re doing nothing as a country to prepare for more such events (including the historical flooding and its significant economic cost), much less to try to prevent climate change. We continue to let multinational banks guide our national policy choices, in spite of warnings that such an approach will bring about another crash. And no matter how relatively inexpensive drones are, we are spending billions on them, even while we’re firing the teachers that should be educating our next generation of engineers–eating our national security seed corn, if you will–because of budget woes.

In short, in a push to address one diminishing threat using the least costly military means, we may be hurting the viability of our nation-state. We’re fighting a transnational threat by empowering transnational threats. Meanwhile, the US is betraying its responsibility to provide its citizens security in the face of a number of much more urgent threats.

If the state is crumbling–and ours seems to be, literally, politically, and legally–then what becomes of the responsibility for national security? And how do you define the nation that national security must serve?

Update: Balsa for balsam fixed per Synoia.

Check out the 2009 Report Card from the American Society of Civil Engineers:Aviation D

Bridges C

Dams D

Drinking Water D-

Energy D+

Hazardous Waste D

Inland Waterways D-

Levees D-

Public Parks and Recreation C-

Rail C-

Roads D-

Schools D

Solid Waste C+

Transit D

Wastewater D-

America’s Infrastructure GPA: D
Estimated 5 Year Investment Need: $2.2 Trillion

Bernstein’s take (channeling Atrios) is that fixing all this infrastructure ought to be a good way to get 20 million people back to work.

But fixing just about every single one of these infrastructure problems is also a way to make our country more resilient to terrorism. Bridges? Dams? They make attractive terrorist targets, particularly if they’re already crumbling. Drinking water? Another vulnerability to terrorist attacks. Rails? We know Osama bin Laden was reviewing plans to derail trains (as it crossed a bridge–this one’s a twofer).

So can’t we start fixing this stuff and, rather than calling it stimulus, call it “counter-terrorism preparedness”? There’s no way, of course, the idiots in DC would support 2 trillion of stimulus, but their willingness to keep funding multiple wars in the name of terrorism–to the tune of trillions–show they might do so if we can give it a national security spin.

And between us? If we fixed things like levees and energy plants, we’d also be more resilient to things like earthquakes and climate change. Mind you, if Republicans found out about that, it’d be enough reason to defund it. So we’ll just keep that part a secret between us.

Yet Eric Cantor wants to hold disaster relief hostage to debt hysteria. (h/t Steve Benen)

The No. 2 House Republican said that if Congress doles out additional money to assist in the aftermath of natural disasters across the country, the spending may need to be offset.

House Majority Leader Eric Cantor (R-Va.) said “if there is support for a supplemental, it would be accompanied by support for having pay-fors to that supplemental.”

The stance is all the more heartless given that most rational people believe there’s a tie between the increasingly volatile weather and climate change. That is, it’s not just that Eric Cantor wants to deprive fly-over country of any government assistance in the face of freak natural disaster, he’s demanding that communities suffering the consequences of climate change also pay the bill to clean up after climate change-caused disaster. He’s asking already-devastated communities to pay for our collective addiction to oil (and coal).

One obvious solution might be to impose a carbon tax at least big enough to pay for such disasters, which are likely to become more and more common.

But these same Republicans that want Joplin to pay the price of getting flattened by tornadoes are also heading in the wrong direction. They want debt reduction, they claim. But they also refuse to cut subsidies to the same carbon industry contributing so much to climate change.

We have enough money, apparently, to keep paying off the most profitable corporations in the world. But not enough to help our neighbors who pay the physical, emotional, and economic price for those corporations’ profits.

Rather, it was that he planned to use it as an urgent call to action on the day that Carol Browner announced her resignation. The only way calling this a Sputnik moment makes sense, IMO, is if you can paint in very concrete terms the security threat that demands such urgency. And the urgent threat facing us–one badly exacerbated because of the particular industries where China is kicking our ass–is climate change. But with Browner’s departure also goes Obama’s focus on climate change, replaced instead by a vaguely defined clean energy race.

As David Roberts lays out,

[C]onsider the larger analogy at the heart of Obama’s speech: America is at a “Sputnik moment.” Well, why was Sputnik a Sputnik moment? Not because Americans said, “Wow, the USSR is getting really good at technology! We’re getting outcompeted!” No, what the public said was, “Holy sh*t! Our mortal enemy is putting stuff in space! They’re going to rain rockets down on us and we’re all going to die!” In other words, Sputnik was not some friendly challenge to see who can win the race to the future (or whatever). It was a threat. That’s what lit a fire under America’s ass and that’s why America rose to the challenge.Obama wants to launch a clean energy race. And good for him. But what are the stakes? What is the threat? Where is the urgency? If it’s just about international competition, why not focus on good macroeconomic policy — why go to such lengths to build up this economic sector, these technologies? Why not just leave it to the market?

Here’s why: The U.S. needs to get at or close to zero carbon emissions by the middle of this century or there will be severe and possibly irreversible changes in the climate, leading to massive, widespread human suffering. That’s why we don’t have time to wait for the invisible hand of the market. That’s why we need massive investments, tighter regulations, and a price on climate pollution. That’s the threat. Without it, a push for clean energy is a nice slogan that can easily be shunted aside when, oh, gas prices are rising, or there’s a recession, or Joe Manchin need to get reelected.

The threat of climate change is what justifies and animates the clean energy race. That’s the substantive need. [DR's emphasis]

A Sputnik moment only works if you’ve laid out a compelling threat that demands the country work together to solve it. We are facing such a moment. But Obama won’t even name that threat by name.

“It is not our intention to govern or to nation-build,” Mr Biden said. “As President Karzai often points out, this is the responsibility of the Afghan people, and they are fully capable of it.”

But he stressed that the United States would continue to assist the Afghan government.

“If the Afghan people want it, we won’t leave in 2014,” Mr Biden said.

Meanwhile, Lester Brown uses the last paragraph of a piece on the coming food riots to point out how out-dated our empire–the decision-making that will lead us to stay in Afghanistan until we go broke–is.

As the new year begins, the price of wheat is setting an all-time high in the United Kingdom. Food riots are spreading across Algeria. Russia is importing grain to sustain its cattle herds until spring grazing begins. India is wrestling with an 18-percent annual food inflation rate, sparking protests. China is looking abroad for potentially massive quantities of wheat and corn. The Mexican government is buying corn futures to avoid unmanageable tortilla price rises. And on January 5, the U.N. Food and Agricultural organization announced that its food price index for December hit an all-time high.

But whereas in years past, it’s been weather that has caused a spike in commodities prices, now it’s trends on both sides of the food supply/demand equation that are driving up prices. On the demand side, the culprits are population growth, rising affluence, and the use of grain to fuel cars. On the supply side: soil erosion, aquifer depletion, the loss of cropland to nonfarm uses, the diversion of irrigation water to cities, the plateauing of crop yields in agriculturally advanced countries, and — due to climate change — crop-withering heat waves and melting mountain glaciers and ice sheets. These climate-related trends seem destined to take a far greater toll in the future.

[snip]

The unrest of these past few weeks is just the beginning. It is no longer conflict between heavily armed superpowers, but rather spreading food shortages and rising food prices — and the political turmoil this would lead to — that threatens our global future. Unless governments quickly redefine security and shift expenditures from military uses to investing in climate change mitigation, water efficiency, soil conservation, and population stabilization, the world will in all likelihood be facing a future with both more climate instability and food price volatility. If business as usual continues, food prices will only trend upward.

Note, I think Brown misses one cause of the food shortages: the treatment of food and commodities used in its production as one more thing our banksters can bet on at their casino.

But his point stands: probably the two biggest threats to our country are–first–climate change and–second–the refusal to fix the global economy the banksters broke. Yet we’re continuing to pour our dollars into Afghanistan, and to pour it into efforts that may well just exacerbate the violence.

A McClatchy story written by Medill graduate students shows how badly our own “security” establishment responds to such non-military threats.

Yet the U.S. government is ill-prepared to act on climate changes that are coming faster than anticipated and threaten to bring instability to places of U.S. national interest, interviews with several dozen current and former officials and outside experts and a review of two decades’ worth of government reports indicate.

Climate projections lack crucial detail, they say, and information about how people react to changes — for instance, by migrating — is sparse. Military officials say they don’t yet have the intelligence they need in order to prepare for what might come.

Rolf Mowatt-Larssen, a 23-year veteran of the CIA who led the Department of Energy’s intelligence unit from 2005 to 2008, said the intelligence community simply wasn’t set up to deal with a problem such as climate change that wasn’t about stealing secrets.

[snip]

In 2007, Department of Energy intelligence chief Mowatt-Larssen built an experimental program called Global Energy & Environment Strategic Ecosystem, or Global EESE. He tapped Carol Dumaine, a CIA foresight strategist known around the agency as a creative visionary, to lead the program.

“Our modern intelligence evolved for a different type of threat: monolithic, top-down, incrementally changing,” Dumaine, who has since returned to the CIA, said in a recent interview. She, on the other hand, was “trying to grow a garden of intelligence genius.”

The program brought together more than 200 of the brightest minds from around the world to explore the impact of issues such as abrupt climate change, energy infrastructure and environmental stresses in Afghanistan.

But after only two years, the program was shuttered. Former members say it was brought down by bureaucratic infighting, political pressure from Congress and the Bush White House, and concerns about including foreign nationals in the intelligence arena.

“The most important thing we lost is data. We lost the data that accompanies new ways of conducting intelligence and for getting it right with environmental problems,” Mowatt-Larssen said. [my emphasis]

We can’t prepare for issues that involve science that has been attacked by a well-funded lobby; we can’t prepare for issues that require open sharing with foreign nationals; we can’t prepare for events that don’t involve stealing secrets; we can’t protect national security programs that don’t fit Republicans’ narrowly defined understanding of it; we can’t prepare for problems not caused by nation-states.

And one thing this article doesn’t say is that if can’t prepare to deal with the changes climate change will bring, we sure as hell can’t prevent or mitigate its effects.

The US empire is in decline on many levels. Its time of economic hegemony is passing; its too-big military is not designed to fight the threats against our country; its government has been rendered dysfunctional by corporate money.

But one of the biggest problems with the US empire is that it chose not to–or was unable to–use its twilight period to prepare for the challenges ahead.

Debbie Stabenow has been selected to replace the outgoing Blanche Lincoln as Chair of the Senate Agriculture Committee. (There had been some concern that Big Ag would oppose someone like Stabenow and instead push Kent Conrad to take the position.)

As I’ve explained before, this means that a Senator from a state with diverse, smaller-scale agriculture will take over and preside over 2012′s Agriculture Bill. Hopefully, this will present an opportunity to refocus our Ag policy on smaller scale, more healthy agriculture.

She’s got some statements from leaders of MI’s Ag community posted; the describe some of her past focus on specialty crops, food safety, and research.

“Senator Stabenow and her staff worked very hard on the 2008 farm bill to make sure there were new provisions that are specific to specialty crop farmers in Michigan and throughout the United States. She has been a champion for food safety programs, conservation, energy and research. We need an elected official like Senator Stabenow who is interested in Michigan agriculture, and working to grow and expand the economic engine in the state that creates jobs and keeps our food supply safe.” – Phillip J. Korson II, President of The Cherry Marketing Institute.

[snip]

“Sen. Debbie Stabenow has been a friend of agriculture and farms, large and small, serving the Michigan State House, U.S. House, and U.S. Senate Agriculture Committees and been an advocate for strong Michigan food systems. She really listens to farmers, both commodity crop and specialty crop growers, regarding their concerns about federal policy.” – Elaine Brown, Executive Director of the Michigan Food and Farming Systems.

“We are very appreciative of Senator Stabenow’s tireless efforts in support of the International Food Protection Training Institute’s mission to improve food safety nationwide. As Chairwoman, we expect that Senator Stabenow will continue to build on her strong track record in agriculture and food safety.” – Gerald Wojtala, Executive Director of the International Food Protection Training Institute.

“Senator Stabenow filled a leading role in the writing and passage of the 2008 Farm Bill. Senator Stabenow authored the first ever Specialty Crops title, which recognized the importance of these crops to our country’s agriculture. She also helped in many other provisions of the bill, particularly support for agricultural research and conservation programs.”- Dave Smith, Executive Director of the Michigan Vegetable Council.

Congratulations Senator Stabenow.

As of his last calculation, Nate Silver gives the Democrats an 84% chance of keeping the Senate. But they’ll keep it without Blanche Lincoln, whom Nate gives a 100% chance of losing to John Boozman. And that’ll open up the Chairmanship on Ag.

The Politico reports that, in spite of the fact that four people have more seniority on the committee, Stabenow stands a decent chance of getting the post, though Bad Nelson might demand it as his reward for staying in the caucus.

Michigan’s Debbie Stabenow is seen as the front-runner to replace Lincoln, but that’s not a given. Nebraska moderate Ben Nelson might win the post as a consolation prize for staying in the Democratic Party, or Kent Conrad of North Dakota could abandon his budget chairmanship to take the helm.

[snip]

“Everybody in town seems to think that she is most likely going to be the next chairman,” said one lobbyist who tracks the committee.

Sources close to the panel say the Michigan Democrat is well-liked by her colleagues and earned their respect during the last round of farm bill negotiations by bridging the interests of states with commodity crops and those with specialty fruit and vegetables.

But because Michigan isn’t your typical Big Ag state, some observers say Stabenow might face opposition from powerful industry lobbies. “There would probably be fear among some of the industry leaders of the cotton people and the wheat people and the barley people if they saw Stabenow take the helm,” said an industry source close to the committee.

Now, Stabenow isn’t always the most hardnosed leader. And on occasions (notably, the bankruptcy bill) she has put corporate interests ahead of her constituents.

But as the Politico article suggests, she would make a very interesting Ag Chair because of the nature of our Ag industry in MI. That’s because MI’s Ag industry has a diversity second only to CA, but (because of the scale) much less dominated by big players. Here’s a snapshot:

• Michigan is the national leader in the production of tart cherries, having grown 196 million pounds or 77% of the U.S. total in 2007.
• Michigan also ranks first nationally for the production of pickling cucumbers, geraniums, petunias, squash and vegetable-type bedding plants.
• Michigan ranks 3rd in the nation in apple production with over 770 million bushels produced in 2007. The estimated farm-level value was $97.1 million.
• Michigan is 2nd nationally for beans, carrots, celery, plums and 3rd in asparagus production.
• Over 887,560 tons of fresh market and processing vegetables were grown in Michigan in 2007. The state ranks 8th in fresh market and 5th in processed vegetable production nationally.
• Michigan ranks 3rd nationally in value of wholesale sales of floriculture products.
• In 2007, Michigan led the nation in the value of sales for 13 crops, including: Potted Easter Lilies, Potted Spring Flowering Bulbs, Potted Geraniums (seed), Potted Petunias, Potted New Guinea Impatiens, New Guinea Impatiens Hanging Baskets, Geraniums, Impatiens, Begonia and Petunia Hanging Baskets, Impatiens and New Guinea Impatiens (flats) and Potted Geraniums (cuttings).
• About 335,000 dairy cows produced 7,598 million pounds of milk in 2007. Michigan ranks 7th nationally for milk production
• Michigan’s hog production totaled 556 million pounds in 2007. Michigan ranks fourteenth in the
  nation in terms of inventory.
• There were over 1 million head of cattle in the state in 2007 with an estimated value of $1.42 billion.

(Somehow, that list neglected to mention blueberries, where we also lead the nation). MI farms are, on average, smaller than the national average, though they are more profitable per acre. There’s a very healthy farmers market culture here, and also some proactive efforts to develop locally-branded processed food from our harvest, such as the soy processing plant 10 miles from here that offers a non-GMO soy oil. Our local big grocery chains do a pretty good job of promoting locally produced products.

And then there’s Tony the Tiger, which is about as Big Ag culture as we get.

In other words, if Stabenow gets the Chair it’ll put someone who is not beholden to Big Ag the way the Ag Chairmen typically are. At a time when the local Ag movement is picking up steam, we might have someone whose constituency would support such an effort.

Compare that with the most likely alternative: Ben Nelson. Who represents, among other corporations, Con Agra. As big as Big Ag gets.

Mind you, the decision may be made by the margin with which the Democrats keep the Senate. If we keep it by just two votes, I imagine we’ll see Con Agra continue to rule. But if we can eke out a few more seats, it’ll give Bad Nelson much less leverage to demand this Chairmanship.

(Cherry Orchard image by jsorbieus)

A BP official said oil stopped flowing from a well in the Gulf of Mexico at 2:25 p.m. today as testing began on a cap over the leak.

It’s the first time oil has not leaked from the well since April.

In a technical briefing, BP Senior Vice President Kent Wells said “it felt very good not to see any oil going into the Gulf of Mexico.”

“What I’m trying to do is maintain my emotions,” Wells said. “Remember, this is the start of our test.”

The procedure — known as a well integrity test — should determine whether the oil can be blocked without damaging the well.

Officials have said the cap could be used to either block the oil or move the oil to containment ships floating on the surface, until a relief well can be completed.

This is indeed positive. And if Macondo really is shut in with no leakage and integrity issues evidencing themselves, BP is, for once, due some congratulations.

Still, I have a nagging question on the integrity of the well that has neither been answered to date nor put to rest by the seemingly joyous news today. Namely, it is a given from the way it occurred, not to mention subsequently admitted by Thad Allen and BP, that the “Top Kill” process was cut quite short due to inexplicable loss of mud in process indicating a lack of well integrity at some point (or multiple points) in the bore length. There is no reason to believe whatever caused said leakage, and fear leading to the termination of Top Kill, has magically corrected or repaired itself.

As BP’s Kent Wells properly noted, the news is good so far, but the test is not complete and the conclusion not yet drawn with finality. So, for now, let us hope and wish the well to be sealed and stable. Consider this thread to be open to any and all discussion on the Macondo experience and anything else for that matter.

[Graphic - BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

With this knowledge in the public sphere at least substantially by the night after Feldman’s decision, the government nevertheless did not even mention it as a ground in their attempt to stay Feldman’s ruling at the district court level when they filed their motion to stay at the district court level late the following day. That motion was in front of Feldman himself, so maybe you could rationalize the government not raising it at that point (although I would have posed the motion to stay to the chief judge for the district and included the conflict as grounds for relief were it me).

Having predictably received no relief in their lame request for stay from Feldman, the judge who had just hammered them (not surprising), the government put their tails between their legs and made preparations to seek a stay from the 5th Circuit. Surely the government would forcefully argue the glaringly obvious egregious appearance of both conflict and lack of impartiality once they were free of Feldman and in the Fifth Circuit, right? No, no they didn’t.

When the government filed their motion for stay in the 5th Circuit mid to late day Friday June 25, a full three days after getting hammered by oiled up Judge Feldman, and after Feldman’s most recent 2009 financial disclosure had even started being released to the general public (as evidenced by the literally damning piece on it Rachel Maddow did Friday night), the government STILL did not avail themselves of the glaringly obvious argument of conflict by Feldman. Nary a peep from the fine lawyers at the DOJ on one of the most stunningly obvious arguments of judicial bias in recent memory.

Another week later, and there STILL is no peep from the government on an issue that would be critical to reinstating their moratorium if they really wanted to. But while the government lawyers refuse to zealously litigate the position they claim to support, intervenors represented a by law school clinic professor and two lawyers for environmental groups have done the work the government should have done. On Friday June 2, Defendant-Intervenors filed a Motion to Disqualify Feldman in the district trial court and properly noticed the record at the 5th Circuit.

From the D-I Motion to Disqualify:

Pursuant to 28 U.S.C. § 455, Defendant-Intervenors Defenders of Wildlife, Sierra Club, Florida Wildlife Federation, Center for Biological Diversity, and Natural Resources Defense Council (collectively “Defenders”) respectfully move this Court to disqualify itself from proceedings in this case.

As detailed more fully in Defenders’ memorandum in support of this motion, the Court must recuse itself for two distinct and independent reasons. First, the Court’s financial holdings in various companies involved in oil and gas drilling raise in an objective mind a reasonable question concerning the Court’s impartiality in these proceedings, triggering the obligation under 28 U.S.C. § 455(a) for the court to disqualify itself. This obligation is not mitigated by the Court’s sale of some of this stock prior to the issuance of the preliminary injunction on June 22, 2010 since, prior to that time the Court must have formed substantive opinions about the case from both the briefs filed by the parties and the hearing on June 21. The Court owns and/or recently has owned an interest in several companies that comprise part of the network that supports the Gulf’s oil and gas industry. To rule that the moratorium would injure irreparably a network in which the Court was financially invested creates an impermissible appearance of partiality in the mind of a reasonable observer, which is enough to trigger the duty to recuse under § 455(a).

So, hats off to attorney Catherine Wannamaker and her clients the Center for Biological Diversity and Defenders of Wildlife, David Guest of Earthjustice for Florida Wildlife Federation and the Sierra Club and Professor Adam Babich of Tulane Law School’s Environmental Law Center also for the Sierra Club. These intrepid intervenors are doing the job the government lawyers should be doing, but curiously refuse to do.

But this is not the only instance of highly suspect lawyering by the DOJ and DOI attorneys handling the Hornbeck litigation on the six month moratorium. There is also the government’s failure to meaningfully address the critical case Feldman used to craft his contorted ruling. As I said a week ago:

Furthermore, the legal eagles at the DOJ and DOI failed to effectively address and contradict Judge Feldman’s reliance on the case of Motor Vehicle Manufacturers Association V. State Farm Insurance, 463 U. S. 29 (1983), which Feldman contorted and misapplied to wrongfully reach his result.

Here is Feldman’s opinion/order staying the Administration’s six month moratorium. Here is the decision in Motor Vehicle Manufacturers Association v. State Farm that Feldman used to contort the playing field in the direction he wanted. A reading of Feldman’s decision coupled with a close reading of State Farm reveals the clear distinction and contrast between the two situations and why the State Farm decision does not operate in the fashion Feldman claims.

State Farm is remarkably ill applied by Feldman. First off, and most obviously, State Farm reaffirms the proper standard of review, namely that any competent evidence in the agency record mandates upholding the agency determination (in this case the moratorium). Feldman, of course, did a complete end run of this standard. The government, in their respective motions for stay at the district and 5th Circuit, did at least make a halfhearted argument on Feldman violating the standard of review, although they completely fail to use his own linchpin State Farm case against him as would have been appropriate under the circumstances.

Beyond that though, and much more significantly, State Farm delves into a situation where the agency in question there (NHTSA) completely rescinded a rule deemed by the court to be in the interest of protecting the public, and did so without an arguable basis for completely removing the protection to the public. Put more plainly, the government agency in the State Farm situation was harming the public with no viable explanation for the action.

The Court in State Farm found such action – harming the public sector the agency was tasked with protecting instead of helping it – to be directly contrary to the mission and task of the that agency. That logic and framing certainly does NOT apply in the least to the Interior Department’s action in the instant case to impose a six month moratorium where it is crystal clear that the regulatory structure and practices of the oil and gas extraction industry are incapable of protecting the public and environmental welfare. Not to mention that the Department has asserted that their entire array of resources is being consumed entirely by the BP Macondo leak and it is an emergency scenario they are operating under.

In the instant case, Interior was acting exactly within their mission and task to protect the public in relation to mineral exploration and removal, and was not rescinding a rule to protect the public, it enacting a rule – a temporary delay – in order to immediately protect the environment and public, and determine how to better protect the public in the future. There is simply no way to read State Farm as being consistent with the way Feldman applied it to the instant case; in fact a proper scrutiny of State Farm demonstrates that it quite arguable actually supports the government’s agency decision on the moratorium.

But if you review the subsequent motions by the government by and through their attorneys at the DOJ and DOI linked above (and here and here for convenience), they barely address the State Farm decision Feldman used to leverage his entire decision. It is almost beyond belief that a competent lawyer truly zealously and appropriately fighting to restore the moratorium would fail to attack Feldman’s use and abuse of State Farm.

So, if the Obama Administration and Interior Department Secretary Ken Salazar truly believe in the propriety of their six month moratorium, and are dedicated to fighting through appeal for it, why are their lawyers not acting like it? Are they really not trying because they really don’t care, or are they just sloppy and incompetent? It is one or the other.

Oh, and the 5th Circuit is moving things right along. The 5th Circuit told the Hornbeck and related moratorium challengers to file briefs on the stay issue by Friday July 2. Hornbeck filed a brief, as did, quite astoundingly, Senator Mary Landrieu against the government and in favor of oil companies. The government must reply by July 6, if it wishes. The Court set a one-hour hearing for the afternoon of July 8, in New Orleans and said no delays will be granted.

The Senate Energy and Natural Resources Committee voted Wednesday to create a congressional bipartisan commission to investigate the spill, with Sen. Mary Landrieu, D-La., and others saying a separate panel is needed because the White House commission has four environmental advocates — three members and the executive staff director — but no oil industry representation.

“Maybe the commission that the Congress sets up, in a more balanced fashion, with both very strong environmental views and very strong industry views, could actually come up with something that really might work for the dilemma and the challenge that this nation faces, which briefly is this: We use 20 million barrels of oil a day,” Landrieu said. “That was true the day before the Deepwater Horizon blew up. It is true today. And we need to get that oil from somewhere.”

Aside from the problem of the oil industry investigating the oil industry, there’s another problem with Landrieu’s complaint.

Bill Reilly, the Republican Co-Chair and one of the people Landrieu’s calling an “environmental advocate”? He serves on ConocoPhillips’ board. ConocoPhillips is a much smaller player in deepwater drilling than, say, BP. But it’s still the sixth largest driller.

But I guess that kind of obvious conflict isn’t enough to reassure Landrieu.