Wikileaks Exposes Trade Deal You’ve Never Heard Of

In February, in “Corporations Press for Power Grab in Pacific Trade Pact”, we reported details of the Trans-Pacific Partnership (TPP), the most wide-reaching trade pact in history, the terms of which have been decided in secret. We showed that only 5 of its 29 covenants are concerned with typical trade rules such as tariffs and quotas and that the rest are designed to hand multinational corporations powers greater than held by their own governments.

Small wonder that talks are held at a level of such secrecy. The 12 participating Pacific-bordering nations are pledged not to reveal their contents until four years after the final deal is struck or talks are abandoned. Here’s a trade pact that at the very least will cost jobs in this country — it’s referred to as “NAFTA on steroids” — yet we peasants are not supposed to know about it.

Wikileaks succeeded in unearthing a couple of chapters of that nascent agreement and now they’ve done it again, discovering a parallel pact called the Trade in Services Agreement (TISA). The 18-page draft that they leak is as recent as May. It shows the intent to block member governments from devising rules that could impinge on the financial services industry and its accountability, as well as advancing privatization of public services in the 50 participating countries, according to unions protesting in Geneva in April, where the talks were being conducted.

But in this country, the shroud of secrecy is a total success. The talks are in their sixth round yet U.S. media have nothing to report. David Cay Johnston, a tax expert, book author and Pulitzer-winning investigative reporter, says in an Aljazeera America article “not one of the five big American newspapers — The New York Times, The Los Angeles Times, The Wall Street Journal, The Washington Post and USA Today wrote a word about the document. Ditto the major TV networks”.

Once again, right on its opening page, the draft says the agreement’s terms must remain secret, this time for five years after the conclusion of negotiations or after the rules are instituted.

Returning to the Pacific agreement, awareness that the scope of the TPP goes well beyond trade rules came slowly. But when President Obama, eager it seems to add to his legacy with yet another blockbuster (at the expense of his union support), asked for fast track approval by Congress — an up or down show of hands with no debate — it finally aroused enough suspicion for Senate Majority Leader Harry Reid to call a halt. “When Harry mugged Barry”, said The Economist.

There had been next to no awareness of some of the non-trade terms. The Pacific agreement would disallow restrictions on the very derivatives and credit default swaps that contributed so greatly to the 2008 crash, would open government contracts to bidding by all countries, would give pharmaceuticals companies the power to challenge government healthcare drug pricing and to block low cost generics, yet none of these special accommodations to multinationals has been reported in the media. (A fuller list of what is known so far is in “our earlier piece). Right now, talks have bogged down because ten of the would-be signatory nations object to the United States insisting on inspecting imported catfish. Only one produces catfish but they are afraid the U.S. might want to inspect all incoming fish in the interest of protecting the citizenry from serious illness. That should give you an indication of where the trade deal’s priorities lie.

What little attention was paid to the TPP was focused on its trade components. The Wall Street Journal urged Obama to “spend the political capital to persuade a skeptical Congress”. In the same article as above, The Economist said Reid “threatens to impoverish the world by at least $600 billion a year”, parroting along with others a number that the media had accepted without reference to a source other than “studies”. When a New York Times editorial called the TPP “a trade agreement … that could help all of our economies and strengthen relations between the United States and several important Asian allies” without the only trace of knowledge about some of its odious provisions being something about tobacco, we sent a blustering “Are you guys crazy” e-mail to a Times editorial board member. Interestingly, a follow-up edit in April titled “This Time, Get Global Trade Right” took a much more reserved view. They had discovered secrecy: “only a few insiders know what is in these trade agreements, particularly the Pacific pact. The Obama administration has revealed so few details about the negotiations, even to members of Congress and their staffs, that it is impossible to fully analyze the Pacific partnership”.

Jun 30 2014 | Posted in Economy | Read More »

High Court Curbs Power Presidents Have Used Throughout Nation’s History

Central to the Supreme Court’s ruling that President Obama acted unconstitutionally when he filled three empty seats on the National Labor Relations Board (NLRB) during a Senate recess is the justices’ contention that the Senate was not in recess. The Court thus gave its blessing to the practice in the Senate of an opposition party conducting sham sessions for the sole purpose of blocking a president from making recess appointments.

The Senate is seldom at work — Christmas runs from well before until deep into January, Easter lasts two weeks, every one-day holiday is stretched to a week, they are gone all of August (when are they not in recess one might ask after watching this spoof). But during these breaks the opposition party in the Senate can’t risk leaving the door open to the president to make recess appointments. To thwart Obama, Republicans adopted a ruse devised by Democrats during the George W. Bush years — the subterfuge of keeping the Senate open by volunteering a single senator to show up in the empty chamber every three days to gavel into being a “pro forma” session. Three days because “Neither House…shall, without the Consent of the other, adjourn for more than three days”, says the Constitution. These sessions, adjourned immediately, last as little as the one on January 6, 2012, about when Obama made the disallowed NLRB appointments. On that day the Senate “met” for 29 seconds.

Nevertheless, the justices held 9 to 0 that the Senate “may determine the Rules of its Proceedings”, as the Constitution says, even when the proceedings are a sham. “The Senate is in session when it says that it is”, reads the Syllabus of the Court’s decision. “It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business”. In the January hearing of this case, Justice Elena Kagan imagined a scene in which the solitary sole with the gavel ”got up and asked for unanimous consent to name a post office”. As he or she would constitute unanimity, “the post office is named”, she said. That exemplifies the Court’s criterion of the Senate’s ability to conduct business. Yet both then and in their final decision the justices contradict another rule in the Constitution that says for both Senate and House “a Majority of each shall constitute a Quorum to do Business”. The Court’s decision that the Senate is not in recess during the every third day mock sessions is thus based on a false premise.

weight of history

Hundreds of presidential appointments — too many, it is argued — require Senate approval. In the past, approval has generally been forthcoming on the principle that the President should have the right to make his own choices. But not today, in our era of absolute partisanship. To block appointments the filibuster has been deployed repeatedly to halt even the consideration of appointees, in this case by Republicans to keep NLRB seats empty so that the board lacked the quorum needed to make any of its traditionally pro-labor rulings. After over a year of inaction, Obama in January 2012 had had enough and acted — so he thought — with the authority granted him by the Constitution. Throughout the nation’s history, literally beginning with George Washington, presidents have made recess appointments. In recent times Bill Clinton made 139 such appointments, George W. Bush made 171. Far from abusing the power, Barack Obama had made only 32. Reagan made eight times that number. Yet for Obama it was “abuse of power”, said the Wall Street Journal’s editorial.

A challenge to presidents using the recess appointments clause has never come before the Supreme Court until this case, NLRB v. Noel Canning, brought by a soft drink bottler in the state of Washington that objected to an NLRB ruling that said it had violated labor laws by refusing collective bargaining.

strict interpretation

the recess appointments clause

”The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The 9-0 ruling referred to the Senate’s right to say when it is in session, but dissension over the wording of the recess appointment clause led to a 5-4 split in other rulings. The D.C. appeals court decision that was challenged by the government had given the clause so narrow a reading as to reduce presidential power to the vanishing point — a reading that found agreement from the four most conservative judges. The appeals court focused on “the Recess” (see sidebar) as meaning the single intersession recess and not the many breaks the Senate takes during a year. That’s a definition that even the Senate disagrees with on its own web page.

Then came the question of whether “may happen” refers only to vacancies that come about while the Senate is in recess? Or does “may happen” refer to all vacancies that may happen, including those accumulated from before a Senate recess? Here again the appeals court applied the most strict reading — that the phrase referred only to vacancies that occurred during what were then the long recesses caused by horse-drawn travel in the nation’s early days that is no longer applicable. The four conservatives on the Supreme Court bench agreed with the lower court.

Combining those interpretations says that the Senate can ignore appointments interminably, with the president left powerless to act on any vacancy that occurred except fortuitously during the intersession recess, unless a president somehow engineer vacancies to occur only then, invoking the Almighty’s assistance that death not choose a more capricious time.

dissension

The majority in the 5-4 split would have none of it. Rather, the majority opinion written by Justice Stephen Breyer allows the president to make recess appointments in Senate breaks of ten days or greater. But that would be negated by the continuance of the bogus pro forma sessions that the Court says qualify as keeping the Senate perpetually in session.

The ten day rule had Justice Antonin Scalia in sulfurous objection. “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” Justice Scalia said from the bench. Scalia is a strict “originalist”, adhering to the exact words in the Constitution. “These new rules have no basis whatsoever in the Constitution,” he said from the bench. “They are just made up.”

True enough. But the intent of the Constitution’s authors was to bestow on the president the ability to fill vacancies to keep the government running, and the cramped reading of the clause effectively crosses out the text that “textualists” such as Scalia and Thomas revere above all other approaches to the document.

Jun 28 2014 | Posted in Law | Read More »

Politicians Opposed But Power Companies Say Obama’s Plan Workable

The surprise that followed the introduction of President Obama’s plan for reducing carbon emissions from power plants was the discovery that protesting lawmakers are curiously out of step with many in the industry itself.

In a post to his web page, House Speaker John Boehner proclaimed that “The President’s plan is nuts”. In keeping with all who oppose the Environmental
Protection Agency’s proposal, he stressed job loss. “Every proposal that has come out of this administration to deal with climate change involves hurting our economy and killing American jobs. That can’t be the prescription for dealing with changes in our climate”, he said.

Unexpectedly, some who actually run utility companies spoke out in favor. The plan leaves it to each state to develop its own plan to meet state-wide emission targets set by EPA, giving them the leeway of choosing whatever mix of methods gets them there.

It is already evident that “cap-and-trade”, a scheme for plants to buy and sell emission permits or “credits” among themselves, holds greatest appeal. Some utility owners have indicated that being able to trade those “credits” throughout their multi-state systems gives them a flexibility they think is workable. Moreover, concrete regulations, so long in coming, at least have the virtue of removing uncertainty, which businesses need in order to plan their futures. After years of not knowing what government actions might be taken, executives of many of the power companies have expressed satisfaction with the new regulations, especially their flexibility.

“By trading on carbon credits, we’ll be able to achieve significantly more cuts at a lower cost,” said Anthony Alexander, president and CEO of FirstEnergy, a major user of coal in plants spanning Ohio to New Jersey. Speaking for American Electric Power, with coal-fired plants in 11 states, VP of environmental services John McManus concurred. “We view cap-and-trade as having a lot of benefits… It could keep the cost down. It would allow us to keep coal units running for a more extended period. There are a lot of advantages.” AEP’s CEO Nick Akins said much the same. He said had supported a cap-and-trade bill that was passed in the House in 2010 but died in the Senate because “it was a tradable activity that … really answered the greenhouse-gas question in a cost-effective manner”. AEP spokeswoman Melissa McHenry adds, “Any approach that includes flexibility, such as cap-and-trade, would be better than a prescriptive limit on unit emissions”, referring to limits set for each individual plant.

contrarians

They might have trouble explaining just why, but politicians are running in the other direction. Cap-and-trade leaves it to the marketplace to decide how to accomplish a goal, yet in the Republican and Tea Party world it has inexplicably become politically poisonous.

Massachusetts under Governor Mitt Romney was an original member of the Regional Greenhouse Gas Initiative, a cap-and-trade alliance uniting the northeastern states, but when he ran for president in 2012 he found it expedient to disavow the scheme, much as he disavowed the predecessor to Obamacare he had introduced in Massachusetts. New Jersey was a member of the northeastern consortium, but looking ahead to his presidential aspirations, Governor Chris Christie took the liberty to remove his entire state from the plan in 2011. Ohio’s governor, John Kasich, is another possible entrant in the presidential sweepstakes. His office has spoken out against the EPA’s plan.

Democrats alike are running from it, if they come from coal-producing states. Alison Grimes, the Kentucky Democrat who hopes to unseat the senate minority leader, was indistinguishable from rival Mitch McConnell when she fumed that she will “fiercely oppose the president’s attack on Kentucky’s coal industry because protecting our jobs will be my No. 1 priority“. It was an overly strident pronouncement that will probably alienate her essential out-of-state donors.

Senators John Barrasso of Wyoming, a former doctor who should have concerns for coal’s health issues, and Heidi Heitcamp of North Dakota shared a Wall Street Journal op-ed that mostly painted a picture of towns turned to dust by a loss of jobs. We have to call it a mawkish attempt (“The lost revenue base hurts public schools, police and busing services for seniors who can’t drive. Teachers, laborers and doctors move away”) because the high-quality western coal will find an eager market and pricing power by shipping to a China that can’t get enough, and it’s hard to pity North Dakota which is booming from its shale oil deposits in the Bakken formation.

inequality

Different states have to cut back more than others. A spokesperson for AEP complained about this saying, “Climate change is a global issue, and some states should not bear a disproportionate share of the cost of U.S. action to cut emissions”. The states that will bear a higher cost created their current predicament for having done disproportionately less to curb emissions all these years and should not expect states that have taken taken action, shortening their path to the 2020 goal, to share their penalty for having done nothing.

The Wall Street Journal editorial in response to the administration’s announcement focused on cost. It was titled “Carbon-Income inequality” calling “Obama’s new energy rule…a huge tax on the poor and middle class” that will increase the inequality Obama inveighs against. The question — here, not in the editorial — is whether dollars on a monthly electrical bill are reason enough to go on polluting and risking the planet. In a country where 5% of the world’s population consumes 20% of its power, people will likely discover that they do not need to refrigerate their homes, that air conditioner settings in the high 70s are decidedly comfortable, that rooms needn’t stay lighted when no one is in them, that refrigerators needn’t be on their highest setting for foods to stay fresh, and will cut back those monthly bills.

imperial president

Conservatives again accused Obama of abuse of power, of using executive authority to end-run Congress. “The agency is bidding to transform and nationalize U.S. energy the way Obamacare is doing to medicine, but in this case without even the pretense of democratic consent”, the Journal editorial continued. “This regulation will kill jobs and force energy rates to skyrocket, so it’s no wonder President Obama is circumventing Congress to implement his latest job-killing regulation,” Reince Priebus, chairman of the Republican National Committee, said in reaction to the EPA announcement.

But authority for the EPA’s action is baked into the Clean Air Act, which dates as far back as 1963 and was greatly expanded under the Nixon administration and still further since, and the Supreme Court in 2007 held that greenhouse gases are “air pollutants” subject to EPA regulation. Not so, said Boehner. That carbon dioxide is harmful to our environment is “almost comical”, he said on George Stephanopoulus’ Sunday talk show. “Every time we exhale, we exhale carbon dioxide”.

how it works

Under cap-and-trade, the cap is the amount of emissions an area is allowed to emit by common agreement, as in the northeast cooperative, or by law, as the EPA proposes under the Clean Air Act of 1970. The cap declines every year toward its targets, a 25% reduction of emissions from the base year of 2005 by 2020 and a 30% reduction by 2030. The administration gave industry a big gift by choosing 2005, which it claims is used as a benchmark internationally. U.S. power plants have already cut emissions by some 17% since then; they haven’t far to go to reach 25%. Those concerned for climate change do not believe the EPA’s actions go anywhere near far enough.

The EPA expects their targets will lead to annual cuts of up to 500 million tons of carbon in the next decade and more than one billion tons of carbon annually thereafter.

If a state adopts this approach, each power plant would annually be issued a number of “credits” equal to its assigned quota for that year. A plant that has taken steps to reduce emissions — by retrofitting scrubbing equipment, for example — might have leftover credits it doesn’t need. Those expecting to exceed their quota could buy those excess credits — rights to emit more than their quota — in an exchange set up for trading the carbon dioxide allowances.

To win adherents, the EPA offers broad latitude to states devising their plans to reduce including — cap-and-trade groupigs, expanded use of renewables (e.g., solar, wind), conversion from coal to natural gas, consumer efficiencies and conservation, the still unproven sequestration of CO2 into ground repositories, and conceivably even offsets whereby paying for energy-producing or energy-saving projects elsewhere — in forestry or farming, say — can earn a utility extra pollution allowances.

But cap-and-trade is expected to be the most-used option. In a New York Times article, a commissioner of the northeastern program said, “We’ve had states from all over the country calling up and asking, ‘How does this work, and how can it work for us?’” The irony in the conservatives’ opposition is that in the actual world cap-and-trade partnerships are proliferating, both in the U.S. and across the globe. “Over the past decade, carbon allowances have become the world’s newest commodity”, says a New York Times canvass of the phenomenon. Trading desks have popped up on their own to buy and sell credits “from China to Norway to Kazakhstan…with the number of people living in places that have such a system nearing one billion, or 14% of the world’s population, including about 80 million Americans”. And nothing requires such programs to stop at state lines or even national borders. Quebec just joined the California plan this year.

In its near decade of existence, the European Emissions Trading System has been useful to naysayers who needed an example to prove cap-and-trade cannot work. But the reasons for that failed system are understood and avoidable. Unlike the U.S., Europe didn’t have an emissions monitoring system in place and an honor system left power plant’s free to overstate their emissions to gain the maximum number of credits doled out like Monopoly money at the start. The inflation of credits caused their price to collapse and remain at levels too low to induce plants to make improvements. They bought the cheap credits instead.

But those lessons have been put to use by other systems such as California’s, which began last year and at $11 a ton now has a carbon price higher than any other cap-and-trade market.

Emphasis on jobs

Concern for job loss comes primarily from the coal mining states. Sen. Mike Enzi, Wyoming Republican, quoted in the Washington Times said, “The administration has set out to kill coal and its 800,000 jobs. If it succeeds in death by regulation, we’ll all be paying a lot more money for electricity — if we can get it. Our pocketbook will be lighter, but our country will be darker.”

That job loss claim derives from the oft-stated threats that all or most or half of coal-burning plants will be shut down rather than retrofitted with emission-reducing technology. Hence the darker country. Yes, many plants will be shut as being too uneconomical for further investment, but some of these are plants that have been operating for over 50 years, doggedly fighting off pollution controls for decades, as we chronicled in this story. Two of the units at Kentucky’s largest plant were built in 1957 and 1963. They and others have had a very long license to pollute. Their time has come.

As for widespread shutdowns, it is difficult to imagine that the power industry will opt for general euthanasia. If they instead go for the alternative — scrubbers, filtering equipment or gas — those conversions will create plenty of jobs. It will be interesting to look back in future years to see how the split shakes out.

sue!

The rush to lawsuits will run counter to the many states that have before the EPA announcement shown interest in either forming cap-and-trade programs or joining existing plans, which are up and running smoothly. Those that cross state boundaries offer the added benefit of a widened trading universe.

But that’s exactly what the coal industry and its supporters will attack. The EPA’s authority for the new regulations rests on little-used section 111(d) of the Clean Air Act that requires states to manage compliance with pollution benchmarks set by EPA. Lawsuits are expected to insist that the law limits the EPA to prescribing “standards of performance” separately for each plant and gives the agency no authority to allow multiple-plant schemes such as cap-and-trade. So we will have the irony of those who sound the alarm of plant closures insisting that the EPA confine individual plants to meet standards on their own, thereby increasing the likelihood of plant closures.

Other countries are watching. A dozen institutions in China have been “tasked with immediately analyzing the new rule”. China is currently experimenting with carbon exchanges in seven cities and provinces, and while indifferent to the threat of global warming, is clearly thinking of establishing a national market to tamp down emissions in a country that now suffers from the world’s worst air pollution. California and Europe are even talking to China about combining.

against the tide

The Rocky Mountain Institute, a non-profit that deals in energy efficiency, makes this point:

More than half a century’s worth of data from the Energy Information Administration shows that the United States’ GDP grew by more than 720% between 1950 and 2013, while energy consumption per dollar of GDP declined by more than 60% during the same period. The U.S. has retained its place as one of the most robust economies in the world while steadily decreasing the energy and carbon intensity of that economy. Lately this has been especially true of electricity: in 2012 alone, weather-adjusted electricity used per dollar of GDP fell by 3.4%.

Yet the Journal reports that Mitch McConnell has introduced a bill that would snuff out the EPA rule altogether saying, “It’s clear that the president is trying to impose this national energy tax via executive order because he knows the representatives of the people would never vote for it”. Fitzgerald’s famous closer fits: Our Congress “beat[s] on, boats against the current” determined that we be “borne back ceaselessly into the past”.

Is the Supreme Court Establishing a Christian Nation?

In the endless tug and pull of whether to allow crosses, ten commandment tablets, menorahs and nativity scenes in public spaces, the courts have generally tried to keep church separate from state. But we now have a Supreme Court that is showing a bias toward religion, and that religion is Christianity.

The Court’s surprising ruling May 5th said that beginning a town council meeting with prayer in a New York state town named Greece — and by extension everywhere — was more than acceptable even though those prayers were heavily
infused with Christian liturgical references. The Wall Street Journal’s editorial called it “a good turn for religious freedom” and even said the “disconcerting surprise is that the decision was only 5-4”. The split was the usual right-left clustering with Justice Anthony Kennedy effectively casting the deciding vote and writing the majority opinion.

The First Amendment of the Constitution reads (in part) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. To steer clear of government ever proclaiming a national religion, keeping church apart from state has been the least complicated and successful remedy.

Our country’s freedom of religion means people are free to follow their beliefs and congregate separately in their churches, synagogues and mosques but the Court has decreed the opposite: that religion may be brought out of houses of worship and into the public square where people can be subjected to someone else’s religious beliefs. In the town of Greece it was “month in and month out for over a decade, prayers steeped in only one faith”, wrote Justice Elena Kagan. This encroachment on how the First Amendment has been interpreted brings to mind James Madison’s warning: “It is proper to take alarm at the first experiment on our liberties”.

religious lenience for corporations too?

Just weeks before, the Court heard the case of two corporations that had sued not to be required by the Affordable Care Act to enroll in health plans that pay for employee contraceptives, a story we covered in “Do Corporations Have Religious Rights?”. The companies complained that this would be in contravention of their religious beliefs. Generally referred to as the Hobby Lobby case — the name of the larger company, an Oklahoma-based chain of 600-plus stores selling craft knickknacks — it was brought by owners who are devoutly religious. Owner David Green says, “I could live the way I do with ten stores. So why do we want 500 stores? So we can tell more people about Christ”.

The owners are of course free not to use contraceptives but they wish to impose their own religious beliefs on the company’s 30,000 employees. They petitioned the court that they not be forced to pay for the contraceptives that are covered by Obamacare-approved plans. Of the twenty government approved methods of contraception, the Greens are particularly averse to four — one referred to as the “morning after pill” — that act, they say, tantamount to an abortion, even though in the usual case there is no beginning of pregnancy on that morning after. Even if there were, nothing exists at that moment but a zygote — a single cell that has not yet begun to divide and multiply a hundredth of a millimeter in size and smaller than the period that ends this sentence. Hobby Lobby and the second company, Conestoga Wood Specialties of Pennsylvania, consider even this as “sacred” human life.

rationalizations

In the Greece, New York, case, what gives rise to the accusation that the right wing of the Court is deliberately engineering a breach in the wall between church and state is the weakness of the majority’s arguments.

In his separate opinion that concurred with the majority, Justice Samuel Alito was unperturbed by meetings at which Christian clergy led the prayers for almost a decade because only 3% of the town is Jewish and other non-Christian groups are fewer still. One would think that he meant for the Court’s ruling to apply to Greece alone. But a Supreme Court decree is universal and applies to all the town meetings across America, where the audience composition will surely be more mixed.

In his majority opinion, Justice Anthony Kennedy wrote that we should not object to references to a specific religion and its beliefs — which is to say Christianity, 76% of the nation’s population being Christian — because it would be impractical to vet prayers in advance. Such a rule “would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact”. But that chooses to run counter to the simpler course which is to remove prayer from public governmental meetings altogether. Why does the exercise of government need to be wrapped in a religious benediction and a request through prayer that its activity be overseen and guided by God?

Ah, but invoking God is a tradition that goes back to the Continental Congress, Kennedy reminds us. Since the 18th Century, a chaplain has been in the employ of the U.S. Congress to bless the proceedings. The conservative justices in Greece v. Galloway cited the precedent of 1983’s Marsh v. Chambers in which the Nebraska legislature’s practice of opening its sessions with an invocation to prayer was accepted by the Supreme Court as “deeply embedded in the history and tradition of this country”.

Evidently Kennedy believes that tradition should trump the Constitution. “It is … preposterous to say that something is constitutional simply because it’s been done in the past”, says Katherine Stewart, author of a
book on the Christian Right. In her dissent, Justice Kagan objected to the assumption that the nation’s founders endorsed religion’s intrusion into government, pointing out that Washington, Jefferson and Madison “took pains to keep sectarian language away from public life”.

Those dissenting also argued that there is a difference between the practices of legislative bodies, where all are members, and town meetings where government outsiders — the citizens of the town — attend and should not be asked to join in prayer in order to participate in government.

The weakness of their arguments needed extra-Constitutional rationalizations, such as Kennedy writing, “Prayer that is solemn and respectful in tone…invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing”. Allowing a dominant religion to color the proceedings is what is fractious, as opposed to coming down on the side of inclusiveness. Proof of how divisive is the Court’s decision: all five approving of Christian prayer that others must endure are Catholic; three of the four dissenters are Jewish.

Folks should “tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith” wrote Kennedy.

A Jew, whose roots are in the teachings of the Old Testament, should therefore not be offended when in a public place he or she is compelled to join in a prayer infused with references to Christianity with language such as “we acknowledge the saving sacrifice of Jesus Christ on the cross” and “the plan of redemption that is fulfilled in Jesus Christ” and “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit”. Justice Kagan quoted several extended quotes from actual prayers at Greece that included these phrases.

An atheist, perhaps knowing from the breakthrough scientific discoveries of the past century that we are but a speck among billions of like planets in a vast Universe and who therefore does not believe in a god that has somehow singled out Earth for special attention, thinks prayer itself is an absurdity but is made to suffer it.

This is Kennedy’s prescription. Two persons brought the case in Greece, one a Jew, the other an atheist.

The argument of those who dissented was that attendees felt “coerced” into joining in prayer, that if they remained upright rather than bowed or failed to stand, they would be stigmatized in the eyes of others in the audience. The justices said that coercion in these public meetings was not strong enough for that to be a deciding factor. But how would the justices know? In their exalted role apart from every day social norms, when and where have they ever felt coerced?

Justice Anthony Kennedy showed how blind he is to the coercive effect of invocations to public sectarian prayer. “The town of Greece … does not coerce participation by non-adherents”, Justice Kennedy wrote. “Adults often encounter speech they find disagreeable. Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

Except, not participating is conspicuous. When a Christian minister stands before those assembled and bids “All rise”, an objector who elects to remain seated endures the sidelong glances of others, the stigma of being an outlier, of making a “statement”? Instead there is pressure to go along. Townspeople go to these meetings to petition local government for some need or to seek redress of a grievance. By not going along they risk being voted against by the closed-minded and vengeful who might sit on the town board.

special cases

The Greece v. Galloway decision seems to tip the Court’s hand in how it will decide Hobby Lobby sometime in June. While they maintain it is not coercion to ask the religious minorities of Greece to tolerate prayer of a different faith, in Hobby Lobby the conservative wing of the Court is likely to reverse field and find it indeed coercive to force the plaintiff corporations to pay for contraception. When the case was heard in March, Chief Justice John Roberts mused that perhaps there could be exemptions from the healthcare law requirement granted only to closely-held businesses because, assuredly, public companies like Exxon wouldn’t profess religious convictions. If Greece is a creeping encroachment on the First Amendment, exemptions would be the Court creating new law — special treatment for their class of favored corporations, religious objectors that would “come out of the woodwork” as Justice Kagan said.

the unseen movement

Katherine Stewart’s monitoring of the Christian fundamentalists says that Greece was not operating in isolation. The Family Research Council, one of several organizations backing the town elders, exulted that Greece v. Galloway “wasn’t just an answer on prayer — it was an answer to prayer!” She calls it “the long game being played by the religious right”. They are fighting what they think is creeping secularism in America. In the past 10 years the percentage of those who say they have no religious affiliation has
more than doubled, from 8% to 20%, and among adults under 30, a third are unaffiliated. Owing to the stigma attached to admitting non-belief, the percentage is thought to be higher still, witness the shrinking attendance at religious services. Rather than a conspiracy by the left, it is more likely a natural growth of disbelief in superstition.

To combat it, Stewart warns that the groups are trying to infuse a “soft” religiosity in America, where the “formal guarantees of religious freedom and the official separation of church and state remain in place” but the particular religion they have in mind permeates society and is acknowledged as the true foundation of public life and public policy. The Court seems to like this idea.

“Man Up!” Says Kerry to Snowden, As If a Fair Trial Awaits

“This is a man who has betrayed his country”, Secretary of State John Kerry said to NBC’s Brian Williams. Like Daniel Ellsberg, a patriot who stayed in the U.S. to “face the music”, Snowden should “stand in our system of justice and make his case”, was Kerry’s pronouncement.

But Kerry is misinformed in assuming that the NSA contractor, trapped in Russia on a temporary grant of asylum, would have the opportunity to make his case were he to return to the U.S. Who better to ask than Daniel Ellsberg himself?

Writing in the Britain’s newspaper The Guardian, Ellsberg said Snowden “would have no chance whatsoever to come home and make his case — in public or in court”. Ellsberg in 1971 turned over to The New York Times thousands of pages of classified documents that came to be known as the Pentagon Papers which said the Vietnam War could not be won, contrary to the lies of the Johnson administration. Like Snowden, Ellsberg was charged under 1917’s Espionage Act for the “crime” not of spying but for revealing truth to the American public. He was eventually acquitted.

But these are different times and this is a different government. President Obama harbors vengeance against leaks and the press that has led him to bring criminal charges in eight cases under the Espionage Act, whereas all the presidents in the last 100 years combined have resorted to the Act only three times.

Each of the two counts against Snowden, plus a third charge of theft of government property, carries a maximum prison sentence of ten years, but if Snowden were to present himself for trial, the government would assuredly pile on as many fabricated and redundant charges as needed to guarantee a life sentence. (For example, charges against Pvt. Bradley Manning included “Classified cable — 2 years”, “Classified memos — 10 years”, “Military records — 10 years”, Military records [again] — 10 years”, “Army record — 10 years”.)

Ellsberg was free on bail to inveigh against the Vietnam war for the entire 23 months he was under indictment before his acquittal, an unimaginable outcome for Snowden. Moreover, he would certainly be imprisoned without bail and isolated in solitary confinement while awaiting trial, as was Manning, where he would remain for the entirely of his sentence, Ellsberg concluded after consulting with Snowden’s lawyer.

And in that trial, every attempt by Snowden’s lawyers to present the defendant’s reasons for exposing classified documents would be blocked by government lawyer objections on the grounds that there is no provision under the Espionage Act for defendants to make the case that their actions were in the public interest. Manning was not allowed to express his intent, nor to assert that there had been no damage to the United States, nor to cite the value of exposing military wrongdoings , nor argue that documents had been overzealously classified. He (now she) was thus stripped of any defense.

We would see the same in Snowden’s trial. The government would invoke the state secrets privilege to suppress any evidence presented by Snowden’s attorneys as endangering “national security”, no matter that the classified documents are already in the public domain. The argument that the Espionage Act is being wrongly used not against spying but what are in fact — whether legal or illegal — First Amendment leaks of information would be muzzled at every turn.

Instead of confronting the question of whether the Espionage Act can be applied to leaks to the American public, the Supreme Court turns its back.

It is all too willing to rule that the First Amendment says money equates to free speech and the wealthy should be allowed to give far more of it directly to candidates; it is all too willing to allow its favorite religion to insert itself into government proceedings in contravention of the First Amendment’s establishment clause; it will likely be willing in a ruling expected this month to extend First Amendment freedom of religion to favored corporations, which as “persons” now deserve exemptions from laws that offend their religious sensibilities — but the Court has ducked matters of press freedom under the First Amendment for the last 42 years.

In fact, it just ducked again. The Court turned away a repeal to hear the case of New York Times reporter James Risen, who has refused to confirm that Jeffrey Sterling, formerly CIA and indicted under the Espionage Act, was his source for a story about sabotage of Iran’s nuclear program. The government has vindictively been pursuing Risen for six years. The Times calls it an “intolerable infringement of press freedom”. Risen says he will not yield and faces prison. The government’s brief said “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources”. But our secret government judges as criminal wrongdoing the leaking of documents that it now classifies at a rate verging on 100 million a year (92 million in 2011), far beyond by a power of ten what truly needs to be kept secret. In a country that rampantly classifies everything, how are we to know of what is going on in our secret government without a free press and its investigative work? Or from whistleblowers like Snowden.

hypocrisy

In January, finally reversing course to acknowledge that the NSA had gone well beyond the Patriot Act by deciding that the “business records” of Section 215 meant the phone calls, e-mails, Google searches, Twitter tweets and Facebook postings of everyone in the country, President Obama announced his intention for NSA to cease collection of all U.S. phone call metadata. The data is to be left with the telephone companies, and NSA will be required to obtain warrants from the FISA court to access that data for specified individuals only. “Given the unique power of the state, it is not enough for leaders to say, Trust us, we won’t abuse the data we collect,” he said.

In May, the House passed a law to that effect, although caving in to White House pressure behind closed doors by loosening the single individual restriction. It is shortly to be taken up by the Senate.

Snowden brought about this turnabout. There was no knowledge of NSA’s clandestine operations before he exposed them. The Senate and House intelligence committees, charged with oversight of NSA, were sleepwalking through their job. “He has done his country a great service” said the editorial page of the New York Times. Conservatives and libertarians, who regularly cite constitutional freedoms and vilify an intrusive government, agree.

Which makes for the towering hypocrisy of thanking Snowden for finding the truth of a secret government operation that spies on every one of us while the Obama administration plans a reward of the rest of his life in prison.

What’s Going to Happen to Your Internet?

The Internet may seem to be a Utopian phenomenon existing somewhere in cyberspace and belonging to the people of the world but the governments of that world have a different view. They want to claim it for their own.

In the United States, the Federal Communications Commission appointed itself as custodian, even though there is nothing on the books — no act of Congress, say — that confers this privilege.

The FCC has set rules that the public likes, though. Those rules are just a light touch and primarily support “net neutrality”, which could be defined as requiring the Internet service providers (ISPs) — the phone, cable and satellite companies — to treat all content flowing through their pipes the same, restricting none and favoring none. They cannot charge different rates for differing content, whether it is your e-mail or full movies streamed by Netflix.

But federal courts have twice struck down those rules saying the FCC has overstepped its authority. Those companies should be free to charge what they please.

As with seemingly everything today, the issue cleaves along political lines. Democrats want unfettered net neutrality to continue. Their preferred solution is for the FCC to reclassify the ISPs not as “information services”, the term it now uses, but as “common carriers” under the Communications Act of 1934. It prescribes that all users be treated equally and indiscriminately.

That is anathema to the Verizons, Comcasts and AT&Ts and their lobbyists flooding Washington corridors. Why should they have to pay to build the equipment infrastructure to provide the voluminous bandwidth needed to stream those movies without being allowed to charge extra?

Republicans prefer that there be no rules, which would leave corporations free to develop tiers of paid Internet access.

The fear is that the egalitarian Internet will be fragmented into haves and have nots. Large companies will cut payment deals that guarantee their content will always be fast tracked so that there will be no “buffering” pauses in their videos. Other users will be sidetracked until the express has gone through. And indeed, no sooner than the court had struck down the FCC rules than Netflix agreed to pay Comcast for just such specially expedited flow through.

What’s troublesome about that solution is that the big hitters with the the money to buy preferential service and speed might stifle newcomers who would be shunted onto spurs whenever the grande vitesse train wants the main track. The low cost of entry that has allowed innovation to flourish and new ideas to arise could pose difficulties for fledgling companies trying to compete with prosperous, established Internet titans that buy heightened service that the newcomers cannot afford.

And there is a dubious aspect about payment deals such as the Netflix-Comcast contract that no one seems to have mentioned. Gobbling up so much bandwidth is reason enough for the argument that movie streamers, cloud data storage outfits, etc., should pay more, but those heavy users think that in return for simply paying for what they’re using, they deserve still more — speed and preferential access to the Internet’s plumbing.

One fear is that individually negotiated deals between a Netflix and a Comcast could slowly degrade into the ISPs developing a price list for all the others — the YouTubes and the Hulus and the Spotify streaming music services — based on how much data they transmit. Or to cover the cost of those heavy downloads might the ISPs switch from the mostly flat fees they charge consumers today for Internet access to “net-metering”, where a Verizon or a Cablevision sends us a monthly bill for exactly how much bandwidth we used. That may be just routine capitalism, but it is an outcome no one wants: fretting over how much time we spend with Facebook, Yahoo or Twitter, or whether the volume of e-mail we send and receive is getting out of hand. It would mark the end of so much of the free exchange of ideas and information throughout the world that has made the Internet so valuable a medium.

The FCC’s option of declaring the providers “common carriers” gets rid of all these complications. Declaring that the ISPs must accept everyone as equals irrespective of volume is so much simpler. Unfair, perhaps, but you could make the argument that it’s the give back they owe to society in return for their near monopoly status where they operate. So let’s do that, say a number of petitions in circulation which press that solution on the FCC regulators.

Except there’s a problem with that, too. What inducement is there for those ISP companies to build out their infrastructure to accommodate the ever expanding stream of data uploads and downloads. Why should they be expected to subsidize the free ride of the content companies? The result will be deteriorating Internet delivery that will cause the U.S. to lag still further behind other countries. (As it is, we rank 30th in the world, 70% slower than the leader, Hong Kong.)

So, faced with deciding which plan to decree, the five members of the board of the FCC must deal with a Gordian knot that every attempt to disentangle meets with backlash. They effectively decided to start over recently when they proposed that two solutions be considered — payments for speed and preferred access being one, and reclassifying the ISPs as common carriers being the other — with a four month period for comments before deciding.

There will be global repercussions for setting rules in the U.S. In October, 193 member countries of the International Telecommunication Union will meet to plot ways for government to take over the Internet. If the U.S. adopts rules rather than letting the Internet run free, controlled only by the multiple stakeholders of the private sector, countries will point to the U.S. example to argue that they, too, should have the right to set rules to control the Internet in their countries. That will sanctify the practices of countries like Russia and China who today are at least chastised for violating net neutrality when they snoop on search words and block access to sites. They chafe at U.S. control of the Internet — never mind that it is a U.S. invention. Russian President Vladimir Putin has for years been working to upend a 1988 agreement between 114 countries that left the Internet unfettered. The specter of a future in which Russia or China gets to set any Internet rules says the U.S. should not relinquish any control.