Here Come De Conservative Judges - 15

The New Exceptionalism

Our protection from domestic enemies now applies to the DOJ ("department of just us").

If we are "accidentally" scooped up ...

at church ... 

at school ...

at work ... 

or just while walking the dog down our local street, we better hope that no "golden age of America" event ("such as an administrative mistake") happens. 

Because without any due process, if we are secretly and quickly sent to a vermin infested prison in a "sh*thole country", our lives then depend on the meaning or the lack thereof, of the words "facilitate" and "effectuate".

I can't find either of those words in a strict textual reading of the constitution.

Lawyers discussed this foreboding development last night on The Last Word

... Well the breaking news in this country became the
fact that the United States Supreme Court ruled that Donald
Trump's deportation of Kilmar Armando Abrego Garcia was and
is illegal. In the second sentence of a Supreme Court ruling
on the case Chief Justice John Roberts wrote "Abrego Garcia
was subject to a withholding order forbidding his removal
to El Salvador and that the removal to El Salvador was
therefore illegal." The court sent the case back to the
federal district court judge in Maryland where the case
began, saying that that judge's order quote properly
requires the government to facilitate Abrego Garcia's
release from custody in El Salvador and to ensure that his
case is handled as it would have been had he not been
improperly sent to El Salvador. The intended scope of the
term effectuate in the district court's order is however
unclear and may exceed the district court's authority. The
district court should clarify its directive with due regard
for the difference owed to the executive branch in the
conduct of foreign affairs. For its part the government
should be prepared to share what it can concerning the
steps it has taken and the prospect of further steps. Donald
Trump's solicitor general John Sauer who served as one of
Donald Trump's criminal defense attorneys and argued Donald
Trump's criminal case to the Supreme Court last year had
told the court that the original order by the district
court judge was beyond that court's authority because it
meant that judge was engaging in quote district court
diplomacy. While the United States concedes that the removal
to El Salvador was an administrative error that does not
license district courts to seize control over foreign
relations treat the executive branch as a subordinate
diplomat and demand that the United States let a member of
a foreign terrorist organization into America. Tonight
Arrego Garcia's lawyers told the court "The district
court's order instructing the government to facilitate
Abrego Garcia's return is routine. It does not implicate
foreign policy or even domestic immigration policy in any
case. Mr Obrego Garcia is 29 years old has been living in
the United States since he was 16 is married and has three
children. He's married to an American citizen. He was driving
with his five-year-old son who is autistic and cannot speak
when he was apprehended by Donald Trump's gang hunters who
according to 60 Minutes reporting have filled a Salvador
prison with people who have no known or provable or
findable connection to any gang anywhere. 60 Minutes noted
that 75% of the people Donald Trump has sent to the prison
claiming that they are gang members have shown no evidence
whatsoever of ever having committed crimes of any kind or
being associated with any gang. Mr Obrego Garcia has no
criminal record and is married to an American citizen.
Justice Sonia Solomayor was joined by Justice Elena Kagan
and Justice Katanji Brown Jackson. In a statement she added
to the chief justice's ruling saying "The government now
requests an order from this court permitting it to leave
Abrego Garcia a husband and father without a criminal
record in a Salvadorian prison for no reason recognized by
the law. The only argument the government offers in support
of its request that the United States courts cannot grant
relief once a deportee crosses the border is plainly wrong.
The government's argument, moreover, implies that it
could deport and incarcerate any person including US
citizens. Let me say that again including US citizens
without legal consequence so long as it does so before a
court can intervene. That is exactly what Donald Trump's
former criminal defense lawyer is telling the Supreme Court.
The Trump position at the Supreme Court is: no matter how
wrong or illegal an arrest may be if we get that person
outside the borders of the United States of America no
judge anywhere can order the return of that person even if
that person is a United States citizen. The argument that
Donald Trump's team is making to the Supreme Court is that
the mistake doesn't matter. The fact that it was a mistake
it could be any mistake. It could be the mistake of doing
that to a United States citizen. The Trump argument is we
can seize anyone at any time including American citizens
put that person on a plane sending them to another country
and once that plane leaves American airspace there's not a
single thing anyone in the world can do about it. And so yes
according to the Trump argument to the Supreme Court what
happened to Kilmar Armando Arbrego Garcia who has now been
detained for 26 days in El Salvador could happen to any one
of us. The lawyer who made that argument to the Supreme
Court is the very same lawyer who said last year that
Donald Trump as president of the United States had every
right to order Seal Team Six to assassinate any political
rival of his or anyone anywhere in the world. He actually
made that argument in court in the appeals process leading
up to the Supreme Court for Donald Trump to get immunity
for Donald Trump. And that argument worked in the Supreme
Court. That would include Donald Trump allowing that or
deciding to have anyone in the news media who says
something Donald Trump doesn't like sent off in one of
those planes to El Salvador never to return. And I have to
confess I did not fully understand until tonight what
Donald Trump and his former criminal defense lawyer were
arguing to the courts about this case. I have been drowning
in tariff news and other news other Trump news. And it is
only now very clear to me since I had not read the specific
pleadings in this case until tonight it is only now clear
to me that this case does not just increase the risk of
being seized and deported just for people who are in this
country without documentation or for people who are in this
country on student visas or visas of any kind including a
green card. I knew that I did not know that the argument
made by Donald Trump in this case is a threat to every
single person in the United States every citizen every
noncitizen every single one of us. And it was not until I
read Justice Sotomayor's clarification of that very point
tonight that I finally understood where we all stand
tonight in Donald Trump's eyes. He believes and his former
criminal defense lawyers in the Justice Department are
telling him or certainly telling the court and they must be
telling him what they're telling the court that he has a
right to deport anyone from this country including citizens
and deport is not the correct word to use because that is a
legal term that can apply legally in some procedures with
non-citizens. Deportation has nothing to do with American
citizens. That's not the word for what we're talking about
here. And so to clarify the language of this this is how
broad this is What Donald Trump's former criminal defense
lawyer is saying to the Supreme Court in effect is that
Donald Trump can now have any person seized at any time
anywhere in their homes anywhere throw them onto an
airplane send them to El Salvador put them in the prison
that Donald Trump is renting down there and leave them
there forever. That is the actual Trump argument to the
Supreme Court. And so the stakes in the Abrego Garcia case
could not possibly be higher for him for his family and for
everyone of us every one of us. In a separate ruling in a
separate case the Supreme Court has said that legal
deportations cannot be carried out without proper due
process in each case with each person threatened with
deportation being allowed to present their case and be
heard before they are deported. Justice Solomayor said that
there is nothing unusual about a judge requiring someone to
be returned to the United States. She wrote quote "It has
been the government's own well established policy to
facilitate an alien's return to the United States if the
alien's presence is necessary for continued administrative
removal proceedings." So no it is not an intrusion into
foreign policy to return Mr Obrego Garcia to the United
States. It is according to Justice Sonia Sotomayor routine.
Leading off our discussion tonight is Andrew Weissman
former FBI general counsel former chief of the criminal
division in the Eastern District of New York. He's also an
MSNBC legal analyst. Andrew thank you very much for joining
us tonight on this important breaking news case and I have
to say as you've just heard that I really didn't realize
until I saw Justice Sotomayor laying it out in her
supplementary finding to the Chief Justice's ruling today
that what they're arguing is that they can do this to any
one of us. So you know a lot of times people accuse the
media of hyperbole. There is no hyperbole here. It is
everything that you said and it's actually more because in
the case of Mr Garcia he actually had a court ruling that
he could stay here. That had been adjudicated and so this
was in violation of that court order. So yes it's
absolutely true that the position is that but if you put
the two cases together the government was arguing they
could snatch anyone, anyone in this country remove them
without due process. And even if it's a mistake. This is the
callousness even where it's a conceded mistake that person
can rot in jail as a result of the United States making
mistake. And they would have no obligation to lift a finger.
So this is both as we now know from the Supreme Court in
two unanimous losses for the Trump administration that that
is not the law of this country. These people are and
anyone is entitled to due process to a hearing. And in this
case if you make the mistake you have to facilitate of
course. What any decent human being would automatically
think to themselves, which is how do you rectify that. I
can't get over that this is beyond just the law point which
is what kind of human being sits in their office realizes
this mistake happened, and remember Mr Garcia is still in
jail in El Salvador, because of our mistake and the
Department of Justice's position is we're not lifting a
finger unless the court actually requires us to. That
is what is so remarkable when you think about what it means
to be an American in this country. Well yes, nd what we
don't know is if in the end of this process the court
backed by the Supreme Court orders the return of this one
person we don't know that the Trump government will follow
that order. And there will be absolutely nothing nothing
that any judge in this country can do to force Donald Trump
to get that person out of that prison. Well this is what I
would say with respect to that eventuality. This
administration wants to say that they are all powerful and
they have so much clout around the world but they can't get
this person back from El Salvador. We're paying that prison
to house these people. They're going to actually take the
position in front of a court that they the almighty Trump
administration doesn't have the power to effectuate his
return. I mean that seems pretty laughable you know.
Let's wait and see but it that's going to have to be their
position if they don't want to return him. So what do you
make of the chief justice's remand his his specific
instructions in effect to the district court judge so you
know one of the things that a district court judge can do
here um in light of that is ... remember the district court
judge didn't have a factual hearing. And the district judge
can say I want to have a factual hearing If you are saying
I can only take these steps and not more let's have a
factual hearing. Let's hear from the people Let's hear from
Marco Rubio. Let's hear about the ex all the like why it
is that Christine Gnome could go there what kind of
contract do you have with them i mean all of the things
that are very public that don't get into foreign relations
and have a hearing about it I mean this is one where it
it's so unbelievable that you wouldn't think that a humane
person and an adult in the room wouldn't say "Somebody is
in jail because of my mistake. How do you fix it?" But also
I think at this point they'd really have to lie through
their teeth um in order to try and convince a judge that
they don't have the power to effectuate his return. And so
you know I'm what I would say is cautiously optimistic that
it would be quite a hard road. It's not that I won't put it past
them but I think it would be very very hard not to say, you
know unconscionable, to take the position that you
couldn't effectuate his return We're seeing one of the
differences here between the first Trump presidency and the
second Trump presidency. In the first Trump presidency there
were people down the chain of the command from the
president including frequently in the White House chief of
staff's desk who would not do what he wanted them to do He
they absolutely would not do it. And here you have
apparently straight down the line people who will do
exactly what he wants to do. And one of the Trump principles
is you never admit you were wrong. You never admit it was a
mistake. In fact they have fired the Justice Department
lawyer who admitted in an earlier proceeding that this was
a mistake. You get fired for that.

(The Last Word, transcript, emphasis added, Youtube link below). 

The previous post in this series is here.

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The Saturation Chronicles - 8

Mesopelagic

I. A Short History of Instruments

Analysis results in oceanography research vary depending on the instruments used to measure temperature, salinity, and depth.

The World Ocean Database (WOD) contains records collected using several types of research instruments (Access to World Ocean Database Time Sorted Data). 

Today's graphs calculate saturation data taken from gld, osd, apb, uor, pfl, drb, and ctd instrument types (xbt, mrb, and mbt were not used).

Note that there are variations in accuracy among the different instrument types:

Epipelagic

"Nansen bottle casts served as the main oceanographic instrumentation type for more than a century since the establishing of the technique in the late 1890s. Between the end of the 1960s and the end of the 1990s Nansen cast technique has been gradually replaced by electronic sensor profilers (CTD). Both instrumentation types are considered as the most accurate among other oceanographic instruments and are often used as the unbiased reference." 

(On the Consistency of the Bottle and CTD Profile Data). The authors cite to Improved estimates of ocean heat content from 1960 to 2015 as an attempt to improve upon in situ measurements they estimate could be made slightly more accurate.

II. A short History of Miscalculations Of Instrument Data

But their paper and the ones cited in it do not even mention the official oceanographic standard method of calculating ocean heat content (OHC).

From the data produced and placed into the WOD, we should calculate OHC using the TEOS-10 official methods:

 "This site is the official source of information about the Thermodynamic Equation Of Seawater - 2010 (TEOS-10), and the way in which it should be used.

TEOS-10 is based on a Gibbs function formulation from which all thermodynamic properties of seawater (density, enthalpy, entropy sound speed, etc.) can be derived in a thermodynamically consistent manner. TEOS-10 was adopted by the Intergovernmental Oceanographic Commission at its 25th Assembly in June 2009 to replace EOS-80 as the official description of seawater and ice properties in marine science.

A significant change compared with past practice is that TEOS-10 uses Absolute Salinity SA (mass fraction of salt in seawater) as opposed to Practical Salinity SP (which is essentially a measure of the conductivity of seawater) to describe the salt content of seawater. Ocean salinities now have units of g/kg."

(TEOS-10, emphasis added). Or as Wikipedia puts it:

Bathypelagic

"TEOS-10 (Thermodynamic Equation of Seawater - 2010) is the international standard for the use and calculation of the thermodynamic properties of seawater, humid air and ice. It supersedes the former standard EOS-80 (Equation of State of Seawater 1980). TEOS-10 is used by oceanographers and climate scientists to calculate and model properties of the oceans such as heat content in an internationally comparable way. "

(Wikipedia, emphasis added). The reason for the new TEOS-10 standard is and was the inaccuracies that were prevalent in calculations using the antiquated EOS-80 standard.

III. If We Don't Know What OHC Is We Are Not Likely To Find It

Multiple Depth Layers

The old EOS-80 was two orders of magnitude off concerning OHC, which is now, in the modern TEOS-10 nomenclature, called "potential enthalpy":

It is usually the case that when you don't know what you are looking for you are not likely to find it.

So, here is a link and a quote from it that has been posted here previously:

 "Potential temperature is used in oceanography as though it is a conservative variable like salinity; however, turbulent mixing processes conserve enthalpy and usually destroy potential temperature. This negative production of potential temperature is similar in magnitude to the well-known production of entropy that always occurs during mixing processes. Here it is shown that potential enthalpy—the enthalpy that a water parcel would have if raised adiabatically and without exchange of salt to the sea surface—is more conservative than potential temperature by two orders of magnitude. Furthermore, it is shown that a flux of potential enthalpy can be called “the heat flux” even though potential enthalpy is undefined up to a linear function of salinity. The exchange of heat across the sea surface is identically the flux of potential enthalpy. This same flux is not proportional to the flux of potential temperature because of variations in heat capacity of up to 5%. The geothermal heat flux across the ocean floor is also approximately the flux of potential enthalpy with an error of no more that 0.15%. These results prove that potential enthalpy is the quantity whose advection and diffusion is equivalent to advection and diffusion of “heat” in the ocean. That is, it is proven that to very high accuracy, the first law of thermodynamics in the ocean is the conservation equation of potential enthalpy. It is shown that potential enthalpy is to be preferred over the Bernoulli function. A new temperature variable called “conservative temperature” is advanced that is simply proportional to potential enthalpy. It is shown that present ocean models contain typical errors of 0.1°C and maximum errors of 1.4°C in their temperature because of the neglect of the nonconservative production of potential temperature ... and potential temperature, rests on an incorrect theoretical foundation ... it is perfectly valid to talk of potential enthalpy, h⁰,as the 'heat content' ..."

(Potential Enthalpy: Trevor J. McDougall, 2003, emphasis added). Two decades later the science is still there:

Abyssopelagic

"While in situ temperature is an observed variable, its dependence on pressure (even for adiabatic variations of pressure at constant salinity) and its non-conservative nature under turbulent mixing processes have led to the adoption of Conservative Temperature in order to approximate the 'heat content' per unit mass of seawater."

(McDougall, T. J., Barker, P. M., Feistel, R., and Roquet, F.: A thermodynamic potential of seawater in terms of Absolute Salinity, Conservative Temperature, and in situ pressure, Ocean Sci., 19, 1719–1741, 2023).

(In Search Of Ocean Heat - 15). Using EOS-80 concepts to improve upon instrument measurements is a faulty endeavor.

IV. Saturation Hypothesis Estimates 

This Dredd Blog series has focused on degree of "saturation" based on the WOD maximum and minimum temperature and salinity tables detailing maximum and minimum values at various depths (The Saturation Chronicles).

Previous saturation analysis was also based upon 19 ocean areas without regard to the in situ measurement collection instruments.

I noticed that the graphs from these instruments show that the Abyssopelagic depth level is becoming more saturated than the Bathypelagic level above it.

This is to be expected when using modern concepts of quantum oceanography that includes photon science and TEOS-10.

Camera instruments can take snapshots of limited events in a movie, but since the movie is more complex than that, analysis using snap-shot photographs is immature.

Analyzing the "photos" of oceanographic instruments that only take snapshots of the ocean "movie" is haphazard too because OHC is constantly on the move from warmer seawater to colder seawater (second law of thermodynamics ... "warm flows spontaneously to cold").

The trend line of graphs tells the more accurate plot of the movement of OHC, so, "get the picture" is less accurate than "get the plot" in constant movement and change environments (The Photon Current, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 , 17, 18, 19, 20, 21).

We can't find the photons using science of the days when photons hadn't been discovered yet.

But, worst of all the authors write:

"The first efforts to construct global ocean heat content (OHC) time series from ocean profile data revealed the impact of the systematic errors in the data from expendable bathythermographs (XBT) (Gouretski and Koltermann 2007)" 

(On the Consistency of the Bottle and CTD Profile Data, link above, p 1869). This is patently false for OHC purposes because the XBT does not measure salinity, which is required for OHC calculations.

The paper cites papers authored by Viktor Gouretski who points out that XBT cannot be used because it does not measure or record salinity:

"... data types normally report both temperature and salinity ... As both of these parameters are required for the spatial interpolation on isopycnal surfaces, the expendable (XBT) and mechanical (MBT) bathythermograph data were not used." 

(Gouretski, V.: World Ocean Circulation Experiment, Ocean Sci., 14, 1127–1146, 2018). And note "An XBT probe is a less sophisticated instrument ... only measuring temperature as it descends through the water column" (Comparison of XBT vs CTD Data, PDF).

V. Closing Comments

The graphs today do not contain updates of recent years  or of 19 ocean areas like these do, so I am adding three additional graphs (see Appendix below).

These show that saturation has increased in the Epipelagic and Mesopelagic depth levels in recent years.

Nevertheless the authors of the paper I am criticizing have shown that using EOS-80 ideology is backwards thinking of the useless kind.

The previous post in this series is here.

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APPENDIX 

(new files are data added since the release of WOD18)

Updated (using 2018-2023)

Updated (using 2018-2023)

Updated (using 2018-2023)

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