We haven’t *completely* gone round the bend just yet
by digby
The Supreme Court at least acknowledged that making doctors compel their patients to look at ultrasounds is a violation of their free speech (which one would have thought was a big duh) No word on whether it’s a violation of women’s basic human rights to be forced to look at anything… Dahlia Lithwick breaks it down:
This morning the U.S. Supreme Court declined to hear an appeal from North Carolina, seeking to revive a controversial ultrasound requirement before a woman may obtain an abortion. The court’s refusal to hear the case thus leaves intact a decision from the lower federal appeals court, finding that the 2011 North Carolina law was “ideological in intent” and violated doctors’ free-speech rights.
The law, versions of which have been passed in 23 other states, required doctors and technicians to perform an ultrasound, display the image of the sonogram, and specifically describe the fetus to any pregnant woman seeking an abortion, even if the woman actively “averts her eyes” and “refuses to hear.” The American Civil Liberties Union, the Center for Reproductive Rights, Planned Parenthood Federation of America, and other groups challenged the law, which was enjoined by a lower federal court and then struck down by the Fourth Circuit Court of Appeals last winter.
Federal appeals courts have upheld similar laws from Texas and South Dakota, creating a split in the courts that sometimes leads the high court to weigh in. But not this time. The one-sentence order, as is the custom, offered no reasoning. Justice Antonin Scalia voted to hear the appeal. The refusal to hear the appeal does not impact any other state laws beyond North Carolina’s, which remains invalid.
Washingtonian reports that the county of Arlington, Virginia recently voted to increase “penalties for public intoxication and blue language from $100 to $250.” This new ordinance actually mirrors a statewide law, which subjects “any person [who] profanely curses or swears or is intoxicated in public” to a similar fine.
In 2014, Arlington police reportedly made 664 arrests for violations of the ban on profanity or public drunkenness, although it is unclear if any of these were made purely because someone cursed.
Arlington’s decision to increase its own penalties for cursing is somewhat strange, however, as such a ban is almost certainly unconstitutional. In Gooding v. Wilson, the Supreme Court struck down a Georgia law that prohibited “opprobrious words or abusive language, tending to cause a breach of the peace.” Though the Court explained that a narrower law prohibiting so-called “fighting words” may be permissible, this law swept too broadly. “Vulgar or offensive” speech, Justice William Brennan explained in his opinion for the Court, may still be protected by the First Amendment.
According to The Gazette, Alex Kozak was taken into custody after shooting 20-year-old Andrea Farrington three times in the back while she was at work at the Iowa Children’s Museum in the Coral Ridge Mall in Coralville, Iowa.
Police say that the 22-year-old Kozak left the mall and went to his home and retrieved a 9mm Glock handgun before retuning and shooting Farrington late Friday night..
KCJJ reports that a cousin of Farrington’s said that Kozak had been harassing the victim for at least six weeks and that she had complained to his superiors about unwanted advances he had made toward her. A later report stated that Kozak was fired from his job before the shooting took place.
“They both worked at the Coral Ridge Mall and knew each other through the Coral Ridge Mall,” Johnson County Attorney Janet Lyness said. Kozak had worked at the mall since 2014.
After shooting Farrington, Kozak fled the mall in his car but was later pulled over without incident.
Here’s a sampling of the guy’s Facebook page:
I’m not saying this swaggering, aggressive gun culture might lead this fine young fellow to feel a certain sense of “entitlement”. This is just one young man out of millions of law abiding gun owners. But it probably fair to point a finger at the movement when people who take on gun rights as their identity start shooting people who fail to give them what they want.
This quote from the New York Times article on Bush’s announcement sums up the general feeling about Bush and his mighty gravitas:
Despite Mr. Bush’s stumbles so far, his friends and allies said his biggest asset was his unwillingness to transform himself into something he is not.
“I think he needs to put aside the last few months and continue to calmly show a grown-up attitude,” said Barry Wynn, a prominent South Carolina Republican and donor. “The two things that will distinguish him are his stature, that he is a grown-up ready for the presidency, and his consistency, that he’s not changing to make everyone happy.”
“The worst thing for Jeb to do,” Mr. Wynn said, “is give his opponents any opportunity to close the stature gap he enjoys.”
Maturity, stature, record of governance, unwillingness to change into something he’s not. It’s clear that many people find these to be winning attributes. When in comes to Bush anyway. Clinton, not so much. Chris Cilizza probably speaks for everyone who’s anyone in the Village when he puts it this way:
Hillary’s problem is that so much of who she is — and so much of the strengths she carries as a candidate — are rooted in the past.If and when she, at 67 and having spent the last two decades in the national spotlight, has to run against someone like Marco Rubio (age 43), it is going to be a real challenge for her to win the “future vs. past” argument.
That’s a polite way of saying she’s “mature”. And it’s definitely seen as a “problem” she needs to overcome if she hopes to win.
Far be it from to suspect that her gender might play into that calculation in a way it doesn’t for Jeb who,for the record, would be eligible for Social Security when he takes the oath of office if he wins. But in one of the most hilarious examples of mansplaining ever, Cilizza’s claim about her being “rooted in the past” is in the midst of a post telling us that Hillary Clinton has finally learned how to be a woman and explaining how it will help her in the race since she will be the first woman presidential nominee of one of the two major parties if she wins. He actually wrote this down:
Unless, that is, Clinton can show voters how electing her would be the biggest change the presidency has ever seen: After 43 men in the job, she would be the first woman.
“If the question is, is she going to get plenty of people to vote for her such that she wins the Democratic primary, the answer is yes, there’s sufficient enthusiasm,” says former Clinton administration official Jonathan Cowan, now president of the moderate Third Way think tank.
“Is she going to generate the exact same feelings as the first person to become president of the U.S. who is African-American in a country that had a Civil War over slavery? No, but neither did Carter, Reagan, or even Bill Clinton.”
It’s true that we haven’t had a civil war over women’s rights but that hardly makes it such an insignificant change in the course of human history that electing the first woman president is just comparable to electing three random white male presidents. And it’s not necessarily even true. As Michael Tomasky wrote when addressing this same subject, the only reason people don’t see the significance of this moment for many women is because they apparently don’t notice women:
People aren’t going to love her like they loved Barack Obama. Actually, check that, in part: There are in fact millions of Americans who adore Clinton. I saw them in 2000, too; mothers at upstate county fairgrounds, waiting an hour on the rope line to introduce their daughters to Hillary. You don’t become America’s most admired woman in 17 of the last 20 years without lots of people loving you, but somehow this cohort doesn’t register much on the Washington radar screen.
Democratic pollster Anna Greenberg has said women older than 50 would likely comprise the largest bloc of voters in 2016 and it turns out that younger women are quite enthusiastic about Clinton as well. Some women are Republicans, of course, so she will not get every vote from this constituency, but the idea is to generate enough excitement that turnout is high among people who might not otherwise vote.
Perhaps these Washington insiders can’t muster any enthusiasm for the historical nature of her candidacy but their enthusiasm isn’t really necessary for Clinton to win.
It is still too early to know whether Bush’s alleged gravitas, stature and maturity will be the winning formula the media and many Republicans seem convinced it will be or whether young Rubio will sweep in with an Obama-esque message of change to knock him down. And nobody knows if Clinton will win the nomination or if she’ll go the distance. That spry young fella Bernie Sanders is making a serious run at it and you just never know. But to assume that she’s got an age problem while Jeb’s just “mature” or that electing the first woman president holds no meaningful motivation for millions of women betrays the political establishment’s biases much more than they reflect the state of the American electorate.
He is the inevitable result of 40 years of political conjuring, mainly by Republicans, but abetted by far too many Democrats as well. He is the inevitable product of anyone who ever argued that our political institutions should be run “like a business.” (Like whose businesses? Like Trump’s? Like Carly Fiorina’s Hewlett Packard?) He is the inevitable product of anyone who ever argued why the government can’t balance its books “the way any American family would.” He is the inevitable result of the deregulated economy that was deregulated out of a well-cultivated wonder and awe directed at the various masters of the universe. Sooner or later, all of this misbegotten magical thinking was going to burp up a clown like Donald Trump.
He is the inevitable result of the top .001% having so much money that they can turn our democracy into a joke for what amounts to tip money for them.
ISDS provisions in TPP violate Article III of the U.S. Constitution
by Gaius Publius
There’s a growing recognition within the legal community that the ISDS provisions of treaties like NAFTA, TPP, many trade agreements already signed and almost all agreements going forward … may well be unconstitutional. That is, they violate protections offered to citizens by important articles of the Constitution — for example, Article III, which establishes the judicial branch of the U.S. government, assigns its powers and establishes the right of trial by jury (my emphasis, obviously):
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
I recommend taking a moment to read the above. It’s from our founding document, and it’s pretty clear.
What Do Constitutional Lawyers Say About ISDS?
ISDS is shorthand for “Investor-State Dispute Settlement” provisions in current trade “agreements” — these are carefully not called treaties, apparently as an attempt to bypass the Treaty Clause of the U.S. Constitution, which mandates that treaties be ratified by a two-thirds vote of the Senate:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.
I’ll offer the opinions of two constitutional experts. You can listen to conservative constitutional lawyer Bruce Fein in the following interview.
Conservative constitutional lawyer Bruce Fein agreeing with Alan Morrison: Fast Track is “defective constitutionally” (source: Thom Hartmann program)
In addition, consider the recent letter authored by Alan Morrison, described by Public Citizen as “a constitutional law professor and associate dean at George Washington University Law School who has practiced law for 45 years, taught at six law schools including Harvard, and argued 20 Supreme Court cases.” Here is what Dr. Morrison wrote in a letter to the U.S. Congress (pdf).
Bottom Line First
I’m going to quote liberally from Dr. Morrison’s letter — you can read it in its entirety here (pdf). Emphasis is mine except where specified.
“The Investor-State Dispute Settlement Provisions in the Trans-Pacific Partnership Agreement Violate Article III of the United States Constitution”
… Given the importance of the ISDS provisions to the TPP, the Administration owes it to Congress and the American people to explain how the Constitution allows the United States to agree to submit the validity of its federal, state, and local laws to three private arbitrators, with no possibility of review by any U.S. court. That is simply not the way that our Constitution provides for the resolution of the legality of federal, state, or local government laws, rules, or other actions. If someone from the Department of Justice has a different view, I would be more than happy to debate that person before a committee of Congress or in any other appropriate forum.
Let’s look at Morrison’s argument point by point.
What Are Investor-State Dispute Settlement Provisions?
What are these provisions? What do they allow and what do they disallow?
I am writing to call to your attention a serious, but previously undiscussed constitutional problem with the investor-state dispute settlement (“ISDS”) provisions of the proposed Trans-Pacific Partnership Agreement (“TPP”). They would allow foreign investors to challenge laws, regulations, and court decisions of our federal, state, and local governments, not in our court systems, but before three privately appointed arbitrators.
And:
Such arbitration tribunals would be empowered to order the United States Government to pay unlimited sums in damages to the foreign investor if the investor could convince two of the arbitrators that the challenge to a governmental action violated any of its substantive rights provided by the TPP.
In other words, ISDS provisions bypass the constitutionally established court systems of all countries that sign these agreements. In addition, the ability to bypass courts is offered only to investors, as opposed to labor unions or environmental and human rights advocacy groups. Again, decisions of these extra-judicial tribunals are not subject to review by any national court.
Violating the U.S. Constitution
Dr. Morrison, as does Dr. Fein above, asserts that these provisions violate cornerstone protections of the U.S. Constitution. Morrison (entire passage emphasized in original):
I am writing this letter because I believe that the creation of private arbitral tribunals to decide whether otherwise valid federal, state, and local laws are inconsistent with the investor protection provisions of the TPP improperly removes a core judicial function from the federal courts and therefore violates Article III of the Constitution.
I can easily see a judicial challenge to all of these provisions arising out of this claim. But to continue.
ISDS “Arbitrators” Are Not Judges, But Lawyers With a Built-In Interest in Ruling in Favor of Investors
Consider for a moment that you had a dispute with a contentious neighbor, one given to filing lawsuits. When you go to court, you discover that the judge in your case is also the lawyer representing the same neighbor in someone else’s case — and that both cases were being heard simultaneously. That is, your judge was also your current opponent’s lawyer.Would you trust the impartiality of your judge?
The ability of the same individual to cross back and forth from judge to advocate provides perverse incentives in the case of the “judge.” Yet that’s basically the setup with ISDS tribunals. Morrison:
Instead of making the challenge in a court in the country where the investment was made, or before judges of a recognized international tribunal, the TPP would allow an investor to bring the case before an ad hoc tribunal of three arbitrators, one appointed by the investor, one by the nation in which the investment was made, and the third by the agreement of the other two arbitrators. The arbitrators are generally private citizens, often lawyers who specialize in international trade and investment, for whom serving as arbitrators is only one source of their income. Indeed, many of those who serve as arbitrators in one ISDS case represent investors challenging governments in another. Their decisions on the merits of the case are final and not subject to judicial review in any court.
If I’m an investor (a hedge fund owner; a multinational corporation; its CEO), I would pay almost any amount of money to anyone who would take it to get that setup passed and signed.
The Sole Defendant Is the Federal Government. The Sole Remedy is Money Damages.
This is an especially tough set of restrictions, since the real defendants in these cases are likely to be state and municipal governments, as you’ll see in the examples further down. In addition, even when the defendant is the federal government, for example, when federal “country of origin” labeling (COOL) laws are challenged, the response of the government — whose representatives, it must be said, depend on big money interests to maintain themselves in office — can usually be counted on to bend to big money interests.
Under the proposed TPP, in a foreign investor case challenging one of our laws or decisions, the sole defendant would be the federal government, even if the investor’s claim is that a state or city enacted the law or took the action being challenged. The sole remedy is money damages. Others, such as the state that enacted the challenged law, may only participate at the invitation of the federal government which controls the proceeding for the defense. If a law is found to be inconsistent with an investor protection provision, it may remain in effect, but other investors could also bring claims seeking U.S. taxpayer compensation. Thus, an adverse arbitral decision under TPP may well result in repeal or amendment of the offending law. In the case of the United States, if the challenge is to a state or local decision, Congress would probably pass a law preempting the offending provision. Indeed, the mere instigation of an ISDS proceeding has resulted in other governments, including Germany and Canada, reversing specific regulatory decisions as part of compensation packages for investors.
Again, the repeal of country-of-origin laws is slated for this session of Congress and, in the name of “trade,” is almost certain to pass (links above the quote).
Some Examples
Morrison offers four examples of how ISDS provisions can result in perverse and unconstitutional outcomes.
Example 1 — Post-TPP regulation of e-cigarettes:
Concerned about the loss of customers who no longer smoke conventional cigarettes, the tobacco companies have created e-cigarettes, which are currently unregulated. If Congress decided to regulate them after enactment of the TPP, a non-U.S. investor from a TPP country that makes e-cigarettes here could ask an ISDS panel to rule that its investment-based expectations were improperly violated and thus that it is entitled to damages under the minimum standard of treatment provisions.
Example 2 — Post-TPP water rationing in California:
A similar challenge could be made by a TPP investor who owned farm land in California and objected to an intensification of mandatory water rationing for farms enacted after the TPP goes into effect, even if such rules also applied to U.S. owners of land that would be adversely affected by them.
Example 3 — Post-TPP minimum wage increases:
Or the non-U.S. TPP-owner of restaurants in Los Angeles could demand arbitration over a post TPP-enactment of an increase in the minimum wage to $15 an hour, which, he claims, violates his investment-based expectations when he decided to purchase the restaurants.
Example 4 — Post-TPP tightening of regulation for abortion clinics:
Or suppose a non-U.S. investor from a TPP nation decided to open a chain of abortion clinics in Texas and received permits for all of them. If, shortly after the TPP went into effect, Texas passed a law imposing additional health and safety requirements that significantly increased the investor’s cost of doing business, the law would be subject to challenge under the TPP.
Morrison concludes: “Instead of suing in federal or state court, raising U.S. or state constitutional law claims, the investor in each of those cases could circumvent domestic courts and demand ISDS arbitration.”
What Makes These Cases Different from Other Cases Settled by Arbitration?
Each of the cases above involve judgements of law, not facts. The facts in all of the above examples are not in dispute; what is disputed is whether one law — the municipal, state or federal regulation — is inconsistent with another law — the ISDS provision of the trade agreement.
In all such cases as these:
The relevant facts in this kind of case, including my four hypotheticals, are rarely in dispute, and the question of legality is typically resolved by a state or federal judge and then ultimately by the U.S. Supreme Court. But not under the TPP. The foreign investor can avoid the U.S. court system entirely by choosing arbitration, not just in the first instance, but at all, since the TPP excludes judicial review of the merits of decisions by these private arbitrators.
Here’s why previous case law, discussed in the letter, “falls heavily on the side of unconstitutionality”:
None of these [previously discussed court] decisions resolves the constitutionality of the TPP ISDS arbitration procedures, but their collective reasoning falls heavily on the side of unconstitutionality, based on four factors that apply to the TPP tribunals: (1) they deal with questions of law, that judges normally decide, not questions of fact, that could go to juries or arbitrators; (2) the arbitrators are not federal officers, construing and applying federal law, but are private parties, none of whom has to be an American citizen; (3) the consent of the United States is general and not case specific and, where the challenge is to a state or local law, the state or locality never consents at all, but had the decision to arbitrate mandated by Congress, thereby raising federalism concerns; and (4) there is no judicial review of the merits of what the arbitrators decide, especially whether the TPP had been violated at all.
I suspect if there were significant (real, financed) challenges to these provisions, the entire basis of modern trade agreements could be ultimately overturned.
The court system is a powerful tool, as climate activists are discovering. Citizens United was a court case that worked (for the other side). I believe the unconstitutionality of these “agreements” is a significant vulnerability that could and should be profitably explored. As Morrison and Fein attest, it’s certainly a bipartisan concern.
Who is Alan Morrison?
For completeness, and because most of us aren’t followers of the major players in the world of Supreme Court lawyers, here’s what Dr. Morrison says about himself. From the letter:
Interest and Public Service Law at the George Washington University Law School, where I teach constitutional law, with a special focus on separation of powers. I have also taught at Harvard, NYU, Stanford, Hawaii and American University law schools. During my more than 45 years of legal practice, I have argued 20 cases before the Supreme Court and have been co-counsel for a party or an amicus in more than another 100. Included in those Supreme Court cases are eleven major separation of powers rulings. Because I was not part of any of the three branches of the federal government, I was free to support or oppose a law depending on my view of its constitutionality.
Not nobody; definitely somebody. We could use a few more people like Morrison and Fein to weigh in, as well as judicial commenters — paging Dahlia Lithwick and Jonathan Turley? — to contribute to the conversation. On its face, it would be a fruitful conversation to have.
Bobby Jindal in the land of dinosaurs
by Tom Sullivan
Even as Jeb! Bush and Hillary Clinton prepare for their close-ups, out in bayou country a GOP presidential wannabe is trying to keep from being the next Sam Brownback.
Republicans’ approach to taxes is not unlike Biblical literalists’ approach to confronting evolution. Christian fundamentalists will construct an elaborate house of cards on the shakiest of foundations and spend enormous time and effort trying to keep a puff of breeze from knocking it over before they will question their crappy theology. (Visit the Creation Museum on Bullittsburg Church Rd.
in Petersburg, Kentucky, and don’t forget to stop by the gift shop.)
Republicans — Louisiana Gov. Bobby Jindal, for example — will concoct an elaborate edifice of nonsense to create the illusion that they are not raising taxes, you know, to pay for services their constituent public actually wants. Like funding universities and hospitals. Facing a potential $1.6 billion budget shortfall (that’s another story), Jindal has gone to Creation Museum lengths to keep from offending Grover Norquist and Americans for Tax Fairness.
Here’s how the local paper explained it last week:
State Rep. Joel Robideaux, R-Lafayette, and 10 other Louisiana House members sent Norquist a letter (PDF) Sunday night, asking Norquist to rethink his approach to Louisiana’s budget and the “no tax” pledge….
The governor has threatened to veto any budget plan or tax bills that don’t meet Norquist’s “no tax” requirements. Currently, the governor is pushing the Legislature to adopt a controversial higher education tax credit — commonly called SAVE — that Jindal says will make the budget comply with Norquist’s wishes.
These are leaders, mind you, elected by the people of Louisiana, sending a mother-may-I letter to a gadfly in Washington, DC for permission to do their jobs. And their governor wants to be president of the United States and stand up to terr’ists.
Here’s how Jindal proposes to SAVE his ass with Norquist. It is Bobby’s legislative, show-and-tell diorama of children riding dinosaurs:
It would assess a fee of about $1,500 per higher education student and raise about $350 million total, but only on paper. Students wouldn’t have to pay anything because an offsetting tax credit for the $1,500. Nor would universities receive any new money.
However, the SAVE fund would create a tax credit for the $350 million that Jindal could use to offset $350 million of the new revenue that legislators are proposing to raise.
So, to repeat, Jindal created a fake fee for students, and a fake tax credit to balance it out, which ultimately leads to no money changing hands, but apparently satisfies whatever agreement Jindal struck with Norquist to preserve the illusion that he didn’t raise taxes. “It’s an embarrassing bill to vote for,” one Republican state representative told the New York Times, demonstrating the sort of candor that only becomes possible once your own party’s governor has alienated the vast majority of his state and abandoned all pretense of rational policymaking in pursuit of an inevitable also-ran performance in the GOP primary.
For a cultist, it’s a small price to pay to keep from questioning your crappy theology and making your bust of Ayn Rand tear up like Sam Brownback.
Probably the most eagerly anticipated activity of he week-end was the opportunity to attend a sunrise yoga session hosted by Ann Romney and Bloomberg News’ Mark Halperin. Its hard to imagine a more meditative way to start the day than watching a political pundit twist himself into a pretzel. (Well, it’s actually easy to imagine if you watch “Morning Joe.”) But skeet shooting with Lindsay Graham was widely reported as the highlight of the weekend. He’s become the comedian of the group and not just when he’s hysterically declaring that ISIS is coming to kill us all. He kept the rich guys and press alike in stitches with quips like ”We tried tall, good looking, smart, nice, great family man. Vote for me, we’re not going down that path again.” But this anecdote probably captures the flavor of the event more than any other:
ADVERTISEMENT
Graham admitted he hasn’t had to turn away any million-dollar checks since he arrived (campaign finance laws bar candidates from taking more than $2,700 from any one individual). But he added he hopes a super PAC – an outside group that could spend unlimited amounts of money supporting him but with which he’d be barred from coordinating — emerges soon to support his presidential candidacy. Unlike some of his competitors, Graham, as a federal officeholder, couldn’t start one himself, even before he officially declared his bid.
He ran into Romney in person shortly after arriving on Friday night at the exclusive lodge where the conference is being held. They shook hands at the top of a staircase overlooking a cocktail party that was already in full swing.
“There’s money down there Lindsey, go get it!” Romney said with a big smile. Graham smiled back, then started down the staircase.
The reporter probably didn’t notice Graham’s tail wagging or Mitt saying “good boy” under his breath.
John Kasich told the Republican donors, “you think you’re going to beat Hillary Clinton by just destroying the Clintons? You’ve got to be kidding me,” which is akin to saying that it’s not enough to simply kill Moby Dick. Carly Fiorina offered the unusual insight that “everything” about her “is different.” Scott Walker spent most of his time sequestered with potential doors but he did tell the whole group that he’d won in a blue state and that he’d only been recalled once in his one and a half terms. (Ok, he didn’t mention the recall.) Chris Christie offered that he was probably “the most psychoanalyzed national political figure in the world,” which is likely to come as quite a surprise to virtually every national political figure in the world.
Despite the ongoing belief in the gosh-darned patriotic honesty of anonymous government sources by the drearily predictable Snowden antagonists this latest BS story really is too much. Here’s Ryan Gallagher with a rundown of a truly pathetic interview with the alleged journalist who took dictation from MI6 over the week-end:
The lead reporter on the Sunday Times article, Tom Harper, has given an interview with CNN that has to be seen to be believed. In it, Harper is quizzed by host George Howell about the piece — and his answers highlight the many problems with the story’s central allegations and how they were sourced. Here’s a transcript of the important bits; I’ll dissect some key points below.
Howell: How do senior officials at 10 Downing Street know that these files were breached?
Harper: Well, uhh, I don’t know the answer to that George. All we know is that this is effectively the official position of the British government … we picked up on it a while ago and we’ve been working on it and trying to stand it up through multiple sources, and when we approached the government late last week with our evidence, they confirmed effectively what you read today in the Sunday Times, so it’s obviously allegations at the moment from our point of view and it’s really for the British government to defend it.
How do they know what was in them [the files], if they were encrypted? Has the British government also gotten into these files?
Well, the files came from America and the UK, so they may already have known for some time what Snowden took — uhh, again, that’s not something we’re clear on … we don’t go into that level of detail in the story we just publish what we believe to be the position of the British government at the moment.
Your article asserts that it is not clear if the files were hacked or if he just gave these files over when he was in Hong Kong or Russia, so which is it?
Well again sorry to just repeat myself george but we don’t know so we haven’t written that in the paper. It could be either, it could be another scenario … when you’re dealing with the world of intelligence there are so many unknowns and possibilities it’s difficult to state anything with and so we’ve been very careful to just stick to what we are able to substantiate.
The article mentions these MI6 agents … were they directly under threat as a result of the information leaked or was this a precautionary measure?
Uhh, again, I’m afraid to disappoint you, we don’t know … there was a suggestion some of them may have been under threat but the statement from senior Downing Street sources suggests that no one has come to any harm, which is obviously a positive thing from the point of view of the West.
So essentially you are reporting what the government is saying, but as far as the evidence to substantiate it, you’re not really able to comment or explain that at this point?
No. We picked up on the story a while back from an extremely well placed source in the Home Office. and picked up on trying to substantiate through various sources in various agencies throughout Britain, and finally presented the story to the government, and they effectively confirmed what you read in today’s Sunday Times. But obviously when you’re dealing with intelligence it’s the toughest nut to crack and unless you have leaked documents like Snowden had, it’s difficult to say anything with certainty.
So, in summary: How were the files breached? “I don’t know.” Were the files hacked or did Snowden hand them over? “We don’t know.” Were MI6 agents directly under threat? “We don’t know.” How did the government know what was in the files? “That’s not something we’re clear on.” Can you substantiate the claims? “No.”
The interview is quite extraordinary because it makes absolutely clear that not only was this entire dubious story based solely on claims made anonymously by government officials, the reporters who regurgitated the claims did not even seek to question the veracity of the information. They just credulously accepted the allegations and then printed them unquestioningly. That really is the definition of stenography journalism — it’s shameful.
It’s also worth noting that in Harper’s interview he admits he has no idea how the Chinese and Russian governments supposedly obtained the files, yet the whole story was based on a bombshell claim that the trove of files was somehow “cracked” by Chinese and Russian government operatives (i.e. that the encryption on them was broken). As I noted above in point #9, if Snowden just handed over the files, why would these governments then need to “crack” them, unless the claim is that he handed over a set of encrypted documents? Either way, Harper says he has no idea how the files were obtained, so how does he know they were “cracked”? This central allegation seems to have been invented completely out of thin air, at worst a fabrication by technologically inept reporters who don’t understand what terminology like “cracked” means, at best derived from evidence-free conjecture from spineless government officials too afraid to put their names to the claims.
It is also very telling to note that Harper cites “an extremely well placed source in the Home Office” as the initial person who tipped him off about the story. That’s presumably the same “senior Home Office source” quoted in the story insinuating that Snowden chose to go to Russia and hand over documents in return for asylum. That absurd allegation, as I noted in point #6 above, contradicts the fact that Snowden only ended up in Moscow because the US government foolishly revoked his passport and stranded him there while he was passing through on route to Latin America; moreover, Snowden has said repeatedly that he didn’t take any documents to Russia. Any reporter familiar with the story knows this. An assertion from an official claiming Snowden went there to hand over documents should surely have set off alarm bells about the credibility of his claims, and should have at least have prompted a demand for evidence to back them up, given their magnitude.
You can go here for a full refutation of the allegations in the article including the erroneous “fact” that Snowden had the documents in Russia because David Miranda visited him in Moscow and was found carrying some of them when he was stopped in the UK. Miranda had visited laura Poitras in Berlin, which is where he got the documents. Snowden had always said he gave them to the journalists. The Sunday Times quietly changed that in their article without acknowledging the mistake.
Wisconsin Gov. Scott Walker says British Prime Minister David Cameron confided in him that he was concerned about the direction of American leadership. But there’s a problem with the Republican’s tidy critique of President Barack Obama: Cameron doesn’t remember it that way.
Walker, who has taken several trips overseas in recent months to study up on foreign policy in preparation for an all-but-certain presidential bid, told a roomful of Republican donors Friday that world leaders, including Cameron, are worried about the U.S. stepping back in the world. “The Prime Minister did not say that and does not think that,” a Downing Street spokesperson told TIME.
“I heard that from David Cameron back in February earlier when we were over at 10 Downing,” Walker said. “I heard it from other leaders around the world. They’re looking around realizing this lead from behind mentality just doesn’t work. It’s just not working.”
Not even the elegant voice of Dame Helen Mirren can make the Senate Intelligence Committee Report on Torture less horrifying. John Oliver recruited the legendary actress to record an audiobook version for Sunday’s episode of Last Week Tonight, which focused on the disconnect between public perception of torture and its real-life applications.
According to a CBS News poll, 57 percent of Americans believe that “aggressive tactics provide information to prevent terror attacks.” Citing the Senate report, Oliver breaks down the grotesque details of such tactics, which include one game of “Russian Roulette” and five detainees being subjected to “rectal rehydration.” One man was even imprisoned through “mistaken identity” and ended up dying in his cell, likely from hypothermia. (Oliver tries to soften the mood by reading Beatrix Potter’s lighthearted The Tale of Peter Rabbit, but rectal infusion even winds up in the children’s story.)
The Senate report found that “enhanced interrogation techniques” were ineffective, so why do the majority of Americans believe it’s successful? Oliver argues that popular TV shows like 24 are partly to blame since they present a dramatized version that always ends well for good guys like Jack Bauer. The host ends by condemning torture, a process even North Korea called “brutal medieval.”
“If enhanced interrogation were not torture, which it is, and even if torture did work, which it doesn’t, America should not be a country that tortures people,” the host says. “Because it is brutal; it is medieval; and it is beneath us.”
It is. But I doubt seriously that we’ve seen the last of it. It’s just a partisan policy difference now.
Update:And then there’s this awful thing which shows that the CIA apparently ignored its own rules again human experimentation so that it could experiment on humans and then not call it torture.
