Tuesday, June 27, 2017

Good Journalism Requires Clarity, Accuracy – Talking Points Memo

Good Journalism Requires Clarity, Accuracy – Talking Points Memo
by Josh Marshall

Pretending that both parties just have very different approaches to solving a commonly agreed upon problem is really just a lie. It’s not true. One side is looking for ways to increase the number of people who have real health insurance and thus reasonable access to health care and the other is trying to get the government out of the health care provision business with the inevitable result that the opposite will be the case.

If you’re not clear on this fundamental point, the whole thing does get really confusing. How can it be that both sides flatly refuse to work together at all? As Bash puts it, “Why can’t these parties work together on something that is such a huge part of the economy, that is something that is so vital to everybody’s lives, all of their constituents’ lives, [it’s] mind boggling.”

Saturday, June 24, 2017

I Picked Prison Over Fighting in Vietnam - The New York Times

David Harris draft resister:
"I am now 71 and the war that defined my coming of age is deep in my rearview mirror, but the question it raised, “What do I do when my country is wrong?” lives on.
For those looking for an answer today, here are some lessons I learned:
We are all responsible for what our country does. Doing nothing is picking a side.
We are never powerless. Under the worst of circumstances, we control our own behavior.
We are never isolated. We all have a constituency of friends and family who watch us. That is where politics begins.
Reality is made by what we do, not what we talk about. Values that are not embodied in behavior do not exist.
People can change, if we provide them the opportunity to do so. Movements thrive by engaging all comers, not by calling people names, breaking windows or making threats.
Whatever the risks, we cannot lose by standing up for what is right. That’s what allows us to be the people we want to be."
I Picked Prison Over Fighting in Vietnam - The New York Times
by David Harris

Growing up in Fresno, Calif., I believed in “my country, right or wrong,” just like everyone I knew. I could not have anticipated that when I came of age I would realize that my country was wrong and that I would have to do something about it. When I did, everything changed for me.
I went from Fresno High School Boy of the Year 1963, Stanford Class of 1967, to Prisoner 4697-159, C Block, maximum security, La Tuna Federal Correctional Institution, near El Paso.
I was among the quarter-million to half-million men who violated the law that required us to register for military service and face deployment to Vietnam — the draft. About 25,000 of us were indicted for our disobedience, almost 9,000 convicted and 3,250 jailed. I am proud to have been one of the men who, from behind bars, helped pull our country out of its moral quagmire.
I was just 20 when I first stepped outside the law. After months of late-night dorm-room conversations and soul searching, I decided doing so was my duty as a citizen. It was 1966 and draft calls were escalating every month as the American Army in Southeast Asia built up to half a million men, dozens of whom were coming home in coffins every week. I had just been elected Stanford student body president on a “radical” platform calling for an end to the university’s cooperation with the war, and I had already refused to accept a student deferment that would have allowed me to avoid the draft and probably sent a poor person in my stead. But I knew that even such valuable protest was an insufficient response to the moral arithmetic of sending an army thousands of miles from home to kill more than two million people for no good reason.

Friday, June 23, 2017

The Torturers Speak - The New York Times

The Torturers Speak - The New York Times
by The Editorial Board

It’s hard to watch the videotaped depositions of the two former military psychologists who, working as independent contractors, designed, oversaw and helped carry out the “enhanced interrogation” of detainees held at C.I.A. black sites in the months after the Sept. 11 terror attacks.
The men, Bruce Jessen and James Mitchell, strike a professional pose. Dressed in suits and ties, speaking matter-of-factly, they describe the barbaric acts they and others inflicted on the captives, who were swept up indiscriminately and then waterboarded, slammed into walls, locked in coffins and more — all in the hunt for intelligence that few, if any, of them possessed. One died of apparent hypothermia. Many others were ultimately released without charge.
When pushed to confront the horror and uselessness of what they had done, the psychologists fell back on one of the oldest justifications of wartime. “We were soldiers doing what we were instructed to do,” Dr. Jessen said. Perhaps, but they were also soldiers whose contracting business was paid more than $81 million.
The Times on Tuesday published the depositions, taken earlier this year in the course of a federal lawsuit brought against Dr. Jessen and Dr. Mitchell by two former detainees and the family of a third who died in C.I.A. custody in Afghanistan. The psychologists may be the only two people to face any meaningful legal consequences for their role in one of the darkest periods of recent American history. A federal civil trial is set to start Sept. 5 in Spokane, Wash.

Thursday, June 22, 2017

"What have you got to lose?" -- Republicans' latest lie about the ACA | xpostfactoid

"What have you got to lose?" -- Republicans' latest lie about the ACA | xpostfactoid
by Andrew Sprung

AVVO, Rocket Lawyer, Legal Zoom Blocked by New Jersey Supreme Court Ethics Committees

Opinion 732 - AVVO, Legal Zoom, Rocket Lawyer
NJ Supreme Court Committees: Advisory Committee on Professional Ethics, Attorney Advertising, Unauthorized Practice of Law

Responding to an inquiry by the New Jersey State Bar Association, the New Jersey Law Journal reports today that a binding joint Opinion of three New Jersey Supreme Court Committees has found that AVVO Legal Services fee plan violates the Court's Rules of Professional Conduct.  The business model runs afoul of  RPC 5.4 (a) bar on division of fees with non-lawyers and constitutes an impermissible referral fee in violation of RPC 7.2 (c).

New Jersey lawyers are barred from participating in AVVO Legal Services.
The Opinion is binding subject to discretionary review by the Supreme Court itself.

Legal Zoom and Rocket Lawyer were found to be permissible legal services plans, but lawyers may not participate until the plan is properly registered with the Supreme Court.

AVVO asserted a First Amendment defense but the Committees responded:
AVVO asserted that its marketing scheme is commercial speech that must be tested against the intermediate scrutiny standard applied to First Amendment commercial speech. The Committees are not restricting Avvo’s marketing; the focus of this Joint Opinion is on the for-profit lawyer referral program and sharing of a legal fee with a nonlawyer. The First Amendment does not protect lawyers who seek to participate in prohibited attorney referral programs or engage in impermissible fee sharing.

On June 21, 2017, the Advisory Committee on Professional Ethics, Committee on Attorney Advertising, and Committee on the Unauthorized Practice of Law issued a Joint Opinion (ACPE Opinion 732, CAA Opinion 44, UPL Opinion 54) stating that the legal service program operated by Avvo through its website is an impermissible lawyer referral service, in violation of Rules of Professional Conduct 7.2(c) and 7.3(d), and comprises improper fee sharing with a nonlawyer in violation of Rule of Professional Conduct 5.4(a). New Jersey lawyers may not participate in the Avvo legal service program. The Joint Opinion further states that LegalZoom and Rocket Lawyer appear to be offering legal service plans that have not been registered pursuant to Rule of Professional Conduct 7.3(e)(4)(vii). New Jersey lawyers may not participate in the LegalZoom or Rocket Lawyer legal service plans because they are not registered with the New Jersey Supreme Court (Administrative Office of the Courts).
Glenn A. Grant, J.A.D.,
Acting Administrative Director of the Courts

Tuesday, June 20, 2017

Balkinization: SCOTUS blocks Bivens actions by tortured 9/11 detainees

Balkinization: Speaking of Executive Deference
Deborah Pearlstein
The Supreme Court’s decision yesterday in Ziglar v. Abbasi is an abysmal result for those who believe there should be some remedy available when the government violates your constitutional rights – even if Congress has not gotten around to enacting separate legislation creating one.   As others have by now pointed out, it is abysmal as an exercise in legal reasoning as well, whether one agrees with the outcome or not.  What it should not be, as some colleagues have suggested, is fodder for the broader debate – about which I wrote last week in the Trump immigration order context, below – about whether and when the President’s reasoning is entitled to judicial deference in matters of national security. 

 It should perhaps go without saying that the question of executive deference in the immigration order cases – about whether to defer to the executive’s interpretation and application of a statute, or to the executive’s statement of his motive for constitutional purposes – is importantly different from the doctrinal context in which deference arose in Ziglar. Here, in assessing whether or not to imply the existence of a cause of action to sue for money damages for violation of a constitutional right, the Court attended to longstanding (though perhaps not for much longer standing) criteria, including whether “special factors” might counsel hesitation before the courts imply a remedy when Congress had offered none.  Finding such “special factors” present here (more on which anon), the 4-justice majority in Ziglar declined to recognize the availability of a civil remedy for constitutional violations surrounding plaintiffs’ post-9/11 detention.  The result, however wrong, was in no sense surprising.  It has famously been more than three decades since the Court has found a context in which it has thought a judicially implied right to sue for constitutional violations warranted.  Put differently, in the modern Court “special factors,” whatever they may be, have invariably counseled hesitation.  Somewhere in existing canons of judicial prudence, the modern Court has always found a reason why no remedy may be had.

Fair enough, one might respond, but among several reasons Justice Kennedy’s opinion identifies for not recognizing a right to sue here is the argument that plaintiffs’ suit challenged not only the abusive conduct of particular law enforcement officials, but also “elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security.”  The opinion then offers a few boilerplate paragraphs (written as if a clerk had been instructed to hit the “Alt-F7” Executive Deference key) invoking historic (and substantively unrelated) cases in which the Court has recognized (among other things) the President’s entitlement to deference on questions of national security.  Had the opinion left it there, notwithstanding the uniquely disfavored doctrinal context, I might have wondered more whether this language signaled a return to an era of more judicial deference to presidential decision-making.  Happily (in one sense, for no one should welcome a Supreme Court opinion this weakly argued), the very next paragraph hits the “Alt-F8” key, listing cases in which the Court has insisted (in Justice O’Connor’s popular terms) that “[w]hatever power the United States Constitution envisions for the Executive . . . in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Having put the two conflicting canons on the table, even the modestly sage law student exam writer knows the money paragraph must follow. That is, the opinion’s next move must be to explain why the present case more directly implicates the one set of concerns rather than the other.  Herewith, the Ziglar opinion’s money paragraph (on this topic) in its entirety.

Even so, the question is only whether “congressionally uninvited intrusion” is “inappropriate” action for the Judiciary to take. Stanley, 483 U. S., at 683. The factors discussed above all suggest that Congress’ failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker, 487 U. S., at 423. This possibility counsels hesitation “in the absence of affirmative action by Congress.” Bivens, 403 U. S., at 396.

In other words, notwithstanding any question of the executive’s entitlement to deference on questions of national security policy nominally invoked in the preceding paragraphs, what we’re really basing our decision on here is something else entirely – namely, as best I can make out, that it is more reasonable to interpret congressional silence as congressional opposition when it comes to the availability of remedies for unconstitutional government conduct ostensibly carried out for the purpose of protecting national security.  One could set aside I suppose the long list of dangers associated with trying to intuit the intent of a collective body at all, much less a collective body whose relevant action here is to have said nothing one way or another.  One might equally wonder whether precisely the opposite presumption is required about congressional views when it comes to matters of national security – for example, because Congress’ established political incentives against taking any action on any question of national security are by now so apparent, it should be assumed Congress approves of another branch’s conduct (whether the use of force against ISIS or the implication of judicial remedy for a violation of individual rights) unless Congress says otherwise.  One might set all this aside in rejecting the decision’s import for executive deference, because this reasoning has nothing to do with the Executive at all, but rather to how the Court should interpret Congress’ failure to enact a statutory cause of action on which plaintiffs could otherwise rely.  

Ziglar is a bad outcome for judicial enforcement of constitutional rights, no doubt. But grounds for celebration that the Court might look more favorably on Trump’s immigration justification after all?  That I don’t see.

Sunday, June 18, 2017

Explaining Environmental Information Disclosure in China by Alex Wang UCLA :: SSRN

Airpocalypse from my hotel room December 2015
Image result for china ministry of environmental protection
UCLA's Alex Wang, a veteran of ten years as an attorney for an international environmental group based in Beijing has culled that experience.  In a stunning new article in Ecology Law Quarterly he explores the structural contradictions in China's environmental control approach.  Contradictions is always the watchword in looking at legal and political developments in China.  Like any other country there are regional, sectoral, economic, and public health considerations in contention.
China's political system presents particular problems:  effective governance requires environmental controls to protect the public health and productive capacity.  The great expansion of policies favoring openness can be seen as a new method of regulation in which citizens and  civil society organizations can be enlisted.  But China's system is deeply intolerant of independent activity.  The Chinese Communist Party's aspirational  policies create deep socialist expectations for health, prosperity and opportunity.  Engagement of the public serves that purpose.  But it is constrained by the CPC's deep penetration of all social institutions - and the Party's full intention to remain the Party permanently in power.  Wang explores these issues more comprehensively than anyone else has ever done. - gwc
Explaining Environmental Information Disclosure in China by Alex Wang :: SSRN
by Alex Wang (UCLA)
In recent years, China has adopted a range of measures for information disclosure or “open government information.” This comes as a surprise in an authoritarian system known more for secrecy and information control. Why do authoritarian leaders embrace such mechanisms, and how do state and society actors respond? This Article examines in particular the emergence of environmental information disclosure in China, and makes two main contributions to the scholarly debate on Chinese law and governance. First, this Article demonstrates how local demand for legal transplant can arise out of diverse (and sometimes competing) societal interests. State, society and international actors saw in information disclosure law a range of possibilities - the prospect of improved environmental performance, greater accountability to citizens, and strengthened state control. This interest convergence among strange bedfellows has enabled the seemingly paradoxical flowering of disclosure law in China. Second, this Article unpacks the social effects of information disclosure law in China’s authoritarian bureaucratic governance setting. Where interests are compatible in practice, disclosure has enabled state and society advocacy, and catalyzed new channels for public supervision in environmental regulation. It has also provided a powerful rights-based way for advocates to frame their actions. Yet for all its promise, information disclosure creates risks for those involved and reveals deep tensions in Chinese governance – between authoritarian and bottom-up approaches to rule, and the overarching policy objectives of social stability and performance. These tensions limit the utility of disclosure in practice, with serious potential consequences (e.g., weakened state legitimacy and a hobbled environment) for state and society actors alike.

Friday, June 16, 2017

If Rod Rosenstein Recuses: What Happens Next? - Lawfare

Deputy A.G. Rosenstein is in an impossible bind. He is a witness in the matter of the Comey firing.   Rosenstein was a pawn, a dupe, or a collaborator in that.  He is legally charged with overseeing the investigation of that as an obstruction of justice.
If Rod Rosenstein Recuses: What Happens Next? - Lawfare
by Jack Goldsmith (Harvard L.S.) and Benjamin Wittes (Brookings Institution)

ABC News is reporting that Deputy Attorney General Rod Rosenstein “has privately acknowledged to colleagues that he may have to recuse himself from” his role as Acting Attorney General for the Department’s Russia Investigation. (Recall that Rosenstein assumed that role when Attorney General Sessions recused himself earlier.)  Rosenstein’s involvement in the case has grown untenable for many reasons. Most importantly, the substance of the investigation has apparently developed to include a potential obstruction of justice focus on the President in connection with (among other things) the President’s discussions with and firing of James Comey. In that matter, Rosenstein may be a witness because of his role in the firing, and thus he cannot at the same time be the supervisor of the investigation. (Noah Feldman makes a similar argument in BloombergView.) In addition, the President and his surrogates have viciously attacked Rosenstein’s choice of Special Counsel, Robert Mueller. This morning, the President also seemed to say that Rosenstein himself is responsible for what the President sees as a witch hunt against him:
These developments surely suffice to at least require Rosenstein’s recusal.

Executive privilege guide ... Lawfare


Monday, June 12, 2017

OSTAR Race Five Rescued 1,200 miles E of New Foundland


Saturday, June 10, 2017

Galbraith~ Trump's Infrastructure plan Doesn't

The thing about Trump's infrastructure plan is: it doesn't really exist https://www.theguardian.com/commentisfree/2017/jun/09/trumps-infrastructure-plan-doesnt-really-exist?CMP=Share_AndroidApp_Blogger

Friday, June 9, 2017

Wittes the minotaur

The greatest Onion news video ever made parodies the debate over interrogation in the Bush administration. It depicts a panel discussion of whether housing detainees in a labyrinth with a violent minotaur constitutes torture. At one point, the spoof former Bush administration official delivers the immortal line: “Even if the Minotaur did act inappropriately, and I’m not saying it did, the United States cannot be held responsible for its actions, because it is a beastly minotaur and no chains can bind it.”


On the nature of the person Wittes on the Comey testimony


Sargent~ AccountProfileNewsletters & AlertsGift SubscriptionsContact UsHelp Desk gconkLog outAccountProfileNewsletters & AlertsGift SubscriptionsContact UsHelp Desk Home Page  U.S. & World | Regional Politics OpinionsSports LocalNational WorldBusiness TechLifestyle EntertainmentCrosswords VideoNewsletters & Alerts PodcastsPhotography Washington Post LiveLive Chats Real EstateCars JobsClassifieds PartnersWP BrandStudio washingtonpost.com1996-2017 The Washington PostTerms of ServicePrivacy PolicySubmissions and Discussion PolicyRSS Terms of ServiceAd Choices The Plum Line  Opinion Comey just blew apart a leading GOP talking point about Trump and Russia By Greg Sargent June 8 at 12:07 PM  Play Video 1:09 Comey on Trump's comments on Flynn probe: 'I took it as a direction' The former FBI director testifies about his claim that President Trump said he hoped Comey could let the Flynn investigation go. (Photo: Matt McClain / The Washington Post/Reuters) THE MORNING PLUM: Former FBI director James B. Comey’s testimony before the Senate Intelligence Committee has already delivered a devastating blow to one of the GOP’s leading party-wide talking points about the Russia affair. The blow came in two key exchanges. The first came when Sen. James E. Risch (R-Idaho) pressed Comey on his claim, in his written testimony, that President Trump had asked Comey to drop the FBI probe into former national security adviser Michael Flynn. Comey’s written statement quoted Trump saying: “I hope you can see your way clear to letting this go, to letting Flynn go.” Risch then pressed Comey on that: RISCH: He did not direct you to let it go? COMEY: Not in his words, no. RISCH: He did not order you to let it go? COMEY: Again, those words are not an order. … The reason I keep saying “his words” is, I took it as a direction. He’s the President of the United States, with me alone, saying, “I hope this.” I took it as, “this is what he wants me to do.” I didn’t obey that. But that’s the way I took it. Note that Comey refused to acknowledge the premise of Risch’s narrowly drawn (deliberately so) question. Risch wanted Comey to say Trump had not directly commanded him to drop the Flynn probe. Comey would only concede that Trump’s “words” did not superficially do this. He would not allow that Trump did not intend his words as a command. In fact, he said he took it as just that — “a direction.” Then, later, this exchange with Sen. Marco Rubio (R-Fla.) further clarified Comey’s perception of the intention behind Trump’s “request”: RUBIO: You perceived it as an order, given his position, the setting, and some of the circumstances? COMEY: Yes.  Play Video 2:58 James Comey's testimony, in 3 minutes Key moments from the former FBI director's testimony on his interactions with President Trump (Video: Sarah Parnass/Photo: Matt McClain/The Washington Post) Elsewhere in his testimony, Comey flatly confirmed that Flynn was in “legal jeopardy” when Trump made this “request.” Elsewhere still, Comey also addressed the claim, in his written statement, that Trump had demanded his loyalty. In so doing, Comey clarified that he viewed this demand in the “context of asking me to stay.” What Comey seems to have meant by this is that he perceived his ability to stay in the job — in which he serves at the pleasure of the president — as contingent, to some degree or other, on his display of “loyalty” toward the president. [Comey paints a portrait of Trump: ‘Will no one rid me of this meddlesome priest?’] Republicans have widely said that Comey’s written testimony exonerated Trump, because in it, Comey also said several times that he informed Trump that he is not personally under investigation, as Trump had previously claimed. But Comey’s testimony today reveals this to be nothing more than a laughable exercise in misdirection. What’s at issue here is Trump’s broader conduct — his effort to convert his relationship with one of the most powerful law enforcement officials in the country, one who oversees vast investigative machinery, into what Comey termed a “patronage relationship.” The FBI director is supposed to be independent of presidential influence, which is why he is appointed to 10-year terms. But Comey has confirmed that he took Trump’s demand for loyalty as a condition — to some degree or other — of his continued service at Trump’s pleasure. He has confirmed that he took Trump’s “request” that he drop the FBI probe into his former national security adviser — and a former campaign adviser — as a directive, as an “order.” And on top of that, he confirmed elsewhere today that he took detailed notes on all of this because he expected Trump to lie to the American people about what really occurred in these private conversations. This probably ensures that all of the congressional investigations into the Russia affair will have to look at whether the sum total of this presidential conduct adds up to obstruction of justice. It also probably means the special counsel is going to look at this question, too. Whether or not it actually will add up to obstruction is, of course, uncertain. [CNN succumbs to its own Comey hype] But let’s be clear on what Comey is alleging. Comey is claiming that Trump explicitly sought to convert one of the leading law enforcement officials in the country into a personal loyalist. Comey is claiming that Trump demanded, seemingly as a condition for his continued employment, that he voluntarily shed his position’s institutional independence. And Comey is claiming that, after having done all this, Trump told Comey that he “hoped” he would drop the FBI probe into Flynn’s conduct. Comey took this presidential effort as an “order,” which would plainly constitute overt interference in an ongoing FBI investigation into his former national security adviser’s ties to a foreign power that — according to the widely held conclusion of the intelligence community — tried to sabotage our election, in order to tip it to Trump. The only way Republicans can continue to claim this constitutes “exoneration” is to also hold the position that none of the above is cause for concern. Yesterday, Lawfare’s Benjamin Wittes had this to say about the meaning of Comey’s written testimony: Comey is describing here conduct that a society committed to the rule of law simply cannot accept in a president … this document is about a far more important question to the preservation of liberty in a society based on legal norms and rules: the abuse of the core functions of the presidency. It’s about whether we can trust the President — not the President in the abstract, but the particular embodiment of the presidency in the person of Donald J. Trump — to supervise the law enforcement apparatus of the United States in fashion consistent with his oath of office. I challenge anyone to read this document and come away with a confidently affirmative answer to that question. Comey’s spoken testimony today only makes this question harder to answer in the affirmative. But House Speaker Paul Ryan (R-Wis.) is now saying that Trump is “just new to this” and is unfamiliar with protocol. This idea — that Trump only needs to learn what the rules are — elides the much more likely explanation, which is that Trump’s behavior is rooted in a sincerely held belief that our institutions and rules should not represent a check on his power and that he’s willing to actively abuse his power in order to further weaken those constraints. Comey’s testimony today should substantially increase press scrutiny of the widespread refusal of Republicans to acknowledge how serious a problem this has become. * CONGRESS WILL NOW TURN TO POSSIBLE OBSTRUCTION: The Post reports that Comey’s testimony means the congressional probes will now focus on whether Trump’s interactions with Comey were obstruction of justice. One expert sums up the line of inquiry: “I think that the stuff that’s now been put on the record, if you add it all up together, to me it spells obstruction of justice,” Ohlin said. “The pieces are (1) Trump demanding loyalty, (2) Trump telling Comey or directing Comey to end the Flynn or close the Flynn investigation (3) Trump firing Comey when Comey refuses to close the Russia investigation, and then (4) Trump admitting on national television that the reason he fired Comey was because of the Russia investigation and not any of the other reasons cited in the memo.”


Thursday, June 8, 2017

China, not Russia, most helped by Trump


Friday, June 2, 2017

Thursday, June 1, 2017

The Catastrophic Risks of Climate Change: The US Turns Its Back on the World - Lawfare

The Catastrophic Risks of Climate Change: The US Turns Its Back on the World - Lawfare
by Alice Hill (Research Fellow, Hoover Institution, Stanford University)

My business just picked up.  I wish it hadn’t.
I am in the business of finding better ways to prepare for the catastrophic, largely irreversible risks posed by climate change.  The risks are so bad that most of us avoid talking about them at the dinner table. They include ocean acidification, “rain bombs” that cause massive flooding, wildfires that burn up our forests and scorch the dirt that sustains them, droughts that reduce our water supplies, heat waves that ramp up “wet bulb temperature” to heights that can kill humans, and the spread of insect-borne diseases that we wish we had never heard of (Chikungunya) and that we thought would never infect us (Dengue).
These were the emerging threats I was working on before President Trump pulled the plug on the Paris Agreement. My work just increased—big time—because without the Paris Agreement, we are moving ever closer toward climate hell.
Climate change is obviously a global problem, but as the second-largest carbon emitter in the world, the U.S. is a disproportionate contributor to it. The international commitments made in Paris gave us at least a fighting chance of keeping the globe under the line experts agree is too dangerous to cross: a 2-degree Celsius increase from pre-industrial levels. With Trump’s withdrawal from the Paris Agreement, the US has not only bowed out as captain but also dropped its baton in the biggest relay race of all time—the race to cut carbon emissions to avoid the very worst impacts of climate change. In doing so, it has also signaled to the rest of rest of the world that they needn’t stay in the race either.
There is no such thing as American exceptionalism when it comes to climate change impacts, and by shredding the U.S. commitment to cut emissions, Trump has left all of the country in harm’s way. Climate change impacts will affect every speck of American soil and virtually every American and many of the consequences will be negative.  For example, we will suffer increased respiratory issues and heat-related illnesses. More acres of land will burn; more algae will bloom in our lakes; heat will buckle more roads and train tracks and melt the asphalt;  floods will enter more homes, schools, and hospitals; residents along our coasts and rivers will move inland and to higher ground just to escape the waters; and whole coastal communities will start slipping into the ocean. This isn’t the stuff of science fiction. It is happening already, right here in the United States.  It just gets worse—a lot worse—the more carbon we send up into the atmosphere.

Wednesday, May 31, 2017

The Trump Effect on EU-Iran Relations « LobeLog

The Trump Effect on EU-Iran Relations « LobeLog

by Eldar Mamedov
The Committee on Foreign Affairs of the European Parliament has called today to uphold the nuclear agreement between Iran and the UN Security Council members plus Germany as “an important success of international and notably EU diplomacy.” It also called on the EU to “continue applying pressure on the US to fully deliver on the practical implementation” of the Joint Comprehensive Plan of Action (JCPOA).
The relevant clause was tabled by the foreign affairs spokesperson of the Green group, German lawmaker Barbara Lochbihler, to the EP recommendation to the Council of the EU on the bloc’s priorities for the 72nd session of the UN General Assembly. It was backed, apart from the Greens, by the Social Democrats, liberals, and the far left. This coalition prevailed against the opposition of the conservatives, who agreed only to keep the part of the amendment that called to uphold the JCPOA, but voted against the second part related to the pressure on Washington.
Many American experts warned President Trump that his relentless hostility to Iran and the JCPOA, despite Iran’s certified compliance with the agreement, is likely to isolate Washington more than Tehran. In particular, they pointed to the commitment to the deal by the European partners of the United States, as long as Iran continues to abide by it, as has been the case. Tuesday’s vote in the EP’s Foreign Affairs committee proved Trump’s critics right. And it can be only a beginning.
Although the adopted language still has to survive the full floor debate and vote—and, in any case, is not binding for the EU’s executive and the member states—sends a number of strong political signals after Trump’s visits to the Middle East and Europe.
First, the EP puts the onus of the implementation of the JCPOA on the US, not Iran. That an EU body should reckon that yesterday’s “rogue state” is more reliable in upholding the international rule of law than a longstanding trans-Atlantic ally is in itself an extraordinary indictment of Trump’s foreign policy.
Second, by refusing to follow the US in taking a pro-Saudi, anti-Iranian side in Middle Eastern geopolitical power struggles, the EU shows its strategic autonomy and offers an alternative vision for the region: one where legitimate interests of all sides should be accommodated in a system of collective security.
Trump’s bizarre embrace of the Saudi regime raised not a few eyebrows in Europe. The EP has recently and repeatedly criticized Saudi Arabia for human rights abuses, the war in Yemen and the promotion of the ultra-conservative Wahhabi creed, the extreme interpretation of which provides ideological ammunition to groups like the Islamic State and al-Qaeda.
 Although the Islamic Republic of Iran is by no means an exemplar of respect for human rights, the sight of Iranians voting in elections, however imperfect, and handing a decisive victory to a moderate candidate advocating openness towards the West, has generated considerable good will in Europe. The vote in the EP’s committee thus becomes also a way to repudiate Trump’s demonization of Iran.

Monday, May 29, 2017

Ken Burns and Lynn Novick: Vietnam’s Unhealed Wounds - The New York Times

Film maker Ken Burns's history of the Vietnam will come out on PBS in the fall.  We lost five classmates in the Vietnam war.  My memories and thoughts are the same as my classmate and fellow PCV Bill Byrne. I think Ken Burns nails it. The corrosion of trust which plagues us today ~ and which elected the cynic DJT ~ can largely be traced to the catastrophe we inflicted on Vietnam.
The tragedy of Vietnam is not just the 58,000 American dead in  an unnecessary war, but the horrific suffering we inflicted on the Vietnamese.

Same for the Iraq war, which, unlike Vietnam, was not fought by a conscript army.
Ken Burns and Lynn Novick: Vietnam’s Unhealed Wounds - The New York Times
by Ken Burns and Lynn Novick
On April 23, 1975, President Gerald R. Ford delivered an address at Tulane University in New Orleans. As the president spoke, more than 100,000 North Vietnamese troops were approaching Saigon, having overrun almost all of South Vietnam in just three months. Thirty years after the United States first became involved in Southeast Asia and 10 years after the Marines landed at Danang, the ill-fated country for which more than 58,000 Americans had died was on the verge of defeat.
“We, of course, are saddened indeed by the events in Indochina,” the president told the crowd. The United States could soon “regain the sense of pride that existed before Vietnam,” he said, but only if we “stop refighting the battles and the recriminations of the past.” The time had come, the president concluded, “to unify, to bind up the nation’s wounds” and “begin a great national reconciliation.” Just seven days later, North Vietnamese tanks smashed through the gates of the Presidential Palace in Saigon. The Vietnam War was over.
It’s been more than 40 years now, and despite Ford’s optimism, we have been unable to put that war behind us. As one Army veteran, Phil Gioia, told us, “The Vietnam War drove a stake right into the heart of America.”
For more than a generation, instead of forging a path to reconciliation, we have allowed the wounds the war inflicted on our nation, our politics and our families to fester. The troubles that trouble us today — alienation, resentment and cynicism; mistrust of our government and one another; breakdown of civil discourse and civic institutions; conflicts over ethnicity and class; lack of accountability in powerful institutions — so many of these seeds were sown during the Vietnam War.

Sunday, May 28, 2017

Jennifer Rubin in complete despair over the GOP


Mikhail’s Blackstone breakthrough: Emoluments meant private benefits – SHUGERBLOG

Mikhail’s Blackstone breakthrough: Emoluments meant private benefits – SHUGERBLOG
by Prof. Jed Shugerman (Fordham Law School)

For background: The “foreign emoluments” clause of the Constitution states, “[N]o person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Art. I, Sec. 9, cl. 8. The “domestic emoluments” clause states: The President “shall not receive … any other Emolument from the United States, or any of them [any state].”  I have written before about how President Trump is receiving both foreign and state emoluments.  I am working with Mikhail, Jack Rakove, and Gautham Rao on an historians’ amicus brief on the legal meaning and context of the word “emoluments” in the eighteenth century.
Trump’s lawyers have argued in a white paper that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  They suggest a narrow reading excluding the payments to Trump’s businesses for market transactions. I have argued that such market transactions should be considered “office-related,” but Mikhail’s research shows that emoluments are not limited to “office related payments.”  In Blackstone’s Commentaries, the primary usage of the term included private benefits and advantages. As most judges and legal scholars probably know, Blackstone was one of the most important legal sources for the Founding generation. Founding-era Americans cited Blackstone far more than any other English or American legal scholar.  Mikhail also adds a poignant reference to emoluments by the executor of Blackstone’s will, using “emoluments” in reference to the benefits from Blackstone’s estate.
I excerpt Mikhail’s post on the Balkinization blog summarizing his findings:
“Blackstone does not support such a narrow reading [by Trump’s lawyers].  … The majority of Blackstone’s usages of “emolument” involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

Wednesday, May 24, 2017

Sally Yates Tells Harvard Students Why She Defied Trump - The New York Times

Sally Yates Tells Harvard Students Why She Defied Trump - 
The New York Times CAMBRIDGE, Mass. —

In a fierce, sometimes personal speech, Sally Q. Yates, the acting attorney general fired by President Trump for refusing to defend his travel ban, told the graduating class at Harvard Law School on Wednesday that her decision was a surprising but crucial moment when “law and conscience intersected.” Ms. Yates has become a hero to many Democrats for standing up to the president on one of his first and most contentious policy initiatives. Mr. Trump’s supporters regard her as just one of many holdovers from the Obama administration who have publicly and privately tried to sabotage his agenda. Her tenure as acting attorney general was supposed to be uneventful, Ms. Yates said during ceremonies the day before commencement. “Everything was to stay status quo.” Her former chief of staff had jokingly told her there would be time for, in her words, “a lot of long, boozy lunches.” But “the defining moments in our lives often don’t come with advance warning,” she said. “They can arise in scenarios we would have never expected, and don’t come with the luxury of a lot of time for you to go inside yourself for some serious introspection.”

Mitch Landrieu’s Speech on the Removal of Confederate Monuments in New Orleans - The New York Times

Facebook permits Holocaust denial sites

How Facebook flouts Holocaust denial laws except where it fears being sued https://www.theguardian.com/news/2017/may/24/how-facebook-flouts-holocaust-denial-laws-except-where-it-fears-being-sued?CMP=Share_AndroidApp_Blogger

Tuesday, May 23, 2017

Facebook Immune from Liability Based on Third-Party Content - Lawfare

Facebook Immune from Liability Based on Third-Party Content - Lawfare

By Russell Spivak
 Tuesday, May 23, 2017, 1:45 PM

Monday, May 22, 2017

Scapegoating Iran Will Not Resolve Middle East Challenge « LobeLog

Scapegoating Iran Will Not Resolve Middle East Challenge « LobeLog
by Shireen T. Hunter (Georgetown University)
During his Middle East trip, President Donald Trump is reportedly planning to pursue an ambitious list of objectives. Paramount among these is to strengthen regional cooperation in defeating the Islamic State (ISIS or IS) and Islamist terrorism in general. He will also try jump-starting the effort to build peace between Israel and the Palestinians that, if successful, could eliminate a major source of tensions in the region. He wants to convince those Arab states that so far have not established political and trade relations with Israel to do so, to reassure the Persian Gulf Arab states of America’s continued support, and to forge tighter regional military ties that some observers see as a sort of Middle East version of NATO.
Most if not all of these are worthy goals, consonant with US interests. Defeating Islamist terrorism is a common objective. It is also past time that the Israeli-Palestinian conflict were resolved and that all Arab states acknowledged the reality of Israel by establishing diplomatic and trade relations with the Jewish state. There is value in reassuring the Gulf Arab states of continued US commitment to their security—provided that this does not include accepting wholesale their narratives about regional politics or helping them to achieve their own narrow interests where incompatible with US requirements. And the idea of greater Middle East defense cooperation, under the right circumstances, can help to promote regional security and stability.
A key difficulty, however, is that President Trump and leaders of his administration clearly seek to achieve these ambitious goals by (mis)representing Iran as the world’s leading exporter of terrorism and a threat to Israel and Arab states, especially those in the Persian Gulf. Indeed, Washington’s focus on Iran has become a fixation, far beyond anything that evidence of Iran’s actual behavior can support. Furthermore, a major element of this effort is to try building on the current “alliance” between Israel and some of the Sunni Arab states. This effort focuses not only on Iran but on achieving an outcome in the Syrian civil war that marginalizes Iran and, for the Arabs, creates Sunni primacy there over the ruling Alawite minority.
For several reasons, however, making opposition to Iran a mainspring of American efforts in the Middle East, in effect scapegoating it, will not help the US to achieve its regional goals.
Viewing Iran Clearly
The terrorism that deeply concerns the United States and other Western states is Sunni-based, emanating from Arab states, not Iran. Thus, efforts to contain Iran might help meet the political objectives of some regional states, but it will do nothing to defeat IS or al-Qaeda. Likewise, even if Iran were marginalized in Syria and President Bashar al-Assad were deposed, the resulting Sunni primacy over the Alawites would not bring that conflict closer to resolution or offer any promise for broader stability, either in Syria or in the region more broadly.
Moreover, Iran’s impact on the Arab-Israeli conflict is minimal. Stymying its resolution for so many years have been the conflicting aspirations of Israel and the Palestinians. The latter want an independent, even if truncated, state with its capital in East Jerusalem. They want an end to Israel’s settlement-building in the West Bank and permission for the return of at least a symbolic number of Palestinians (or their immediate descendants) who were expelled in the course of Arab-Israeli wars.
But these objectives are precisely what Israel or at least its more hardline politicians do not accept, and that would still be true even if Gaza, dominated by Hamas, were left out of the equation. For example, these hardline Israelis argue that the issue of Jerusalem, as Israel’s undivided capital, is non-negotiable, which also means that there can be no option for two capitals in the one city. Further, Israel’s continued building of settlements in the West Bank makes establishment of an independent Palestinian state politically impossible, since dismantling even some of them would be extremely costly to any Israeli government.
In reality, the best the Palestinians can hope for is some form of autonomous entity, even if it were called a state. It would have a flag and a president, but its disconnected territory would be dotted with Jewish settlements.***

Sunday, May 21, 2017

‘This Wasn’t a Speech About Islam’ - The New York Times

‘This Wasn’t a Speech About Islam’ - The New York Times
Two of our opinion writers, Mustafa Akyol in Istanbul and Wajahat Ali in the Washington, D.C. area, watched President Trump’s speech in Saudi Arabia this morning and discussed what they thought it means for the Middle East, American foreign policy and Muslims around the world.

Thursday, May 18, 2017

Robert Mueller's Mandate is Narrow - Congress still has a role to play

The news of the appointment of Robert Mueller is good.  But his is a criminal investigation: not a commission.  He will not issue a report.  He will not describe the scope of Russian interference. that requires Congress to investigate and report.
- gwc

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and(ii) any matters that arose or may arise directly from the investigation; and(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters. (d) Sections 600.4 through 600. l 0 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

Wednesday, May 17, 2017

The Criminal President? - The New York Times

The Criminal President? - The New York Times
by Richard Painter and Norman Eisner
After the revelations of the past 24 hours, it appears that President Trump’s conduct in and around the firing of the F.B.I. director, James Comey, may have crossed the line into criminality. The combination of what is known and what is credibly alleged would, if fully substantiated, constitute obstruction of justice. It is time for Congress and a special counsel in the executive branch to conduct objective, bipartisan inquiries into these allegations, together with the underlying matters involving Michael Flynn and Russia that gave rise to them.
First, the facts. On Jan. 26, Sally Yates, then the acting attorney general, informed the White House that Mr. Flynn had apparently lied about his conversations with the Russian ambassador. The next day, President Trump hosted Mr. Comey for a private dinner, during which he allegedly asked Mr. Comey repeatedly whether he would pledge his “loyalty” to him, which Mr. Comey declined to do.
On Feb. 14, the day after Mr. Flynn’s resignation as National Security Advisor, President Trump allegedly held Mr. Comey back after a meeting to say that Mr. Flynn had done nothing wrong and that, “He is a good guy. I hope you can let this go.” Mr. Comey declined to drop the investigation, going on in March to confirm before Congress that it was ongoing, and later requesting greater resources from the Department of Justice to pursue it.
Finally, on May 9, President Trump fired Mr. Comey. We were first told he did so because Mr. Comey bungled the F.B.I.’s investigation into Hillary Clinton’s email. Two days later, President Trump changed his story: “In fact, when I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should have won.’” The day after that, President Trump threatened Mr. Comey on Twitter, warning him against leaking to the press.

Monday, May 15, 2017

Lawyerly Integrity in the Trump Administration - Lawfare

Lawyerly Integrity in the Trump Administration - Lawfare
by Professor Jack Goldsmith  (Harvard Law School; Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.)

The New York Times’s story on “What It Means to Work for Trump,” on top of Jim Comey’s firing last week, got me thinking again about how difficult it is for a lawyer who is a political appointee to act with integrity in the Trump administration. (I limit my comments here to government attorneys, and do not analyze the situation of other political appointees.)