Senators Gird for Battle Over Expiring Patriot Act

In the panic after 9/11, Congress immediately threw aside the civil liberties that we lectured other nations to adopt and created the USA Patriot Act. The Act has been periodically amended and extended, most recently by
President Obama in 2011 for four years. But, now, it is about to expire on June 1.

The deadline has set off a scramble that pits an odd assortment of House Speaker John Boehner, the White House, libertarian Tea Party elements and most Democrats against Senate Majority Leader Mitch McConnell and acolytes such as Arkansas’ Tom Cotton. The alliance of expedience wants the law replaced. The hardliners led by McConnell want the Patriot Act extended unchanged, yet again.

Sunset: June 2: Votes were lacking to extend three provisions of the Patriot Act which therefore expired. The Senate passed its replacement, the USA Freedom Act, 67-32, which ends NSA’s 14 years of total phone data collection. Senate Majority Leader Mitch McConnell was irate at being told by House Speaker John Boehner that the Senate must strip four amendments Senators had tacked onto the House-created bill and pass it unchanged.
    

section 215

The Patriot Act provoked angered controversy long before Edward Snowden’s explosive revelations two years ago that the National Security Agency (NSA) had gone far beyond what the Act authorized by collecting and storing the phone call records of every American for years.

Drawing the most fire was Section 215’s re-write of 1978’s Foreign Intelligence Surveillance Act (FISA). It authorized the FBI, with a judge’s approval, to confiscate “any tangible things (including books, records, papers, documents, and other items)”, i.e., virtually anything the Bureau decided might be useful. These “business records” could be taken from a United States “person”, a term that legally applies to corporations and organizations and not just individuals, which freed the FBI to subpoena entire databases of hospitals, businesses and government departments as well as reader lists of bookstores and libraries.

That libraries could be subject to the law was particularly endangering to civil liberties. If meant that the FBI could troll the records of who had checked out certain books, DVDs, etc. So if curious you were to check out a book about international terrorism, a knock on your door could result in removal of all your personal papers, tax records, bank statements, and your computer’s hard drive. You are then forbidden by Section 215 to disclose to “any other person” that this home invasion has occurred, or that you are the subject of an FBI investigation — not even to your lawyer or a court, which means you are denied seeking any form of help or any legal recourse. (In defiance, a library posted a sign at the front desk that said, “The FBI has not yet come to this library” and in small print underneath, “Pay close attention to whether this sign is no longer here”).

The subpoenas took the form of “national security letters” which the FBI could issue on its own once a Section 215 “investigation” was authorized. There is a truism that if a power is given to authority, it will be abused. Sure enough, under the Patriot Act the FBI
overused “NSL”s, issuing tens of thousands each year without having to get a judge’s approval. FBI chief Robert Mueller had to go before Congress in 2007 to apologize for the agency’s out of control targeting of the public.

Ron Wyden (D-Or), a member of the Senate Select Committee on Intelligence, has for years tried to tip off the American public to the government’s abusive use of the Act, but is constrained by secrecy laws. One of 10 senators to vote against re-authorization of the Patriot Act in 2011, Wyden said at the time,

“I believe many members of Congress who have voted on this issue would be stunned to know how the Patriot Act is being interpreted and applied. The fact is that anyone can read the plain text of the Patriot Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified”.

metalawless

When out’d by Snowden, the NSA claimed that the authorization for its secret collecting of telephone “metadata” derived from Section 215. The claim was preposterous on its face. Nowhere can one find in “books, records, papers, documents, and other items” — which sound like stuff found in the desk drawers of someone’s den — the faintest suggestion that what was intended by Congress was the number, date, time and duration of billions of Americans’ phone calls from 2001 until the present. Moreover, the statute permits the taking of items “for an investigation”. Clearly that means a specific target suspected of terrorism or aiding terrorists, and does not define the hundreds of millions of Americans who made phone calls.

It took two years for a court to agree. In a case brought by the American Civil Liberties Union (ACLU), A three-judge panel of the Second U.S. Court of Appeals in New York ruled in May that the NSA program is illegal. No law permits it. The statute the government claims underpin the NSA’s actions do not support “anything approaching the breadth of the sweeping surveillance at issue here. The sheer volume of information sought is staggering”. The text of Section 215 “cannot bear the weight the government asks us to assign to it”, the judges wrote.

Odious as civil libertarians find the Orwellian-named Patriot Act, Congress certainly didn’t intend their law to entitle the NSA to run amok. In a letter to Attorney General Eric Holder, Rep. James Sensenbrenner (R-Wi) wrote, “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”

That is plainly true in the text of the statute which“contemplates the specificity of a particular investigation — not the general counterterrorism intelligence efforts of the United States Government”, the court’s opinion says.

gradual reform

The USA Freedom Act ends NSA bulk collection of phone calls. In a resounding vote of 338 to 88 the House has already passed the bill that would replace the USA Patriot Act, and its match awaits in the Senate. NSA and others will still be able to track phone calls, but both House and Senate versions would leave phone records with the telecomm companies.

Those companies don’t want the job, don’t want its liability, even though they normally retain phone call records for 18 months. But if forced to take it on, they want to be paid. And why not? The cost would be a fraction of the wasteful duplication of transferring and storing years of data at specially built NSA facilities such as the recently completed massive complex at Bluffdale, Utah.

Further changes made by USA Freedom are modest. Penalties were made more severe for rendering material support to a terrorist individual or group. Intelligence agencies would be allowed 72 hours without a warrant to track suspected terrorists after they enter the country.

This time access to phone records would require clearance from the FISA Court upon application that there is a “reasonable, articulable suspicion” that a subject is associated with international terrorism”.

But the proposal that the public be represented by an advocate at the FISA Court was struck down, disappointing civil libertarians and inspiring their cynicism, as it means that only the government gets to make its case for why a target should be investigated. Instead, a panel of experts from outside will advise the Court’s judges, a supposed remedy that can only draw snickers. Bulk collection of overseas calls would proceed untouched.

Mitch McConnell calls this system “cumbersome” for parking the phone data with the phone companies. When he says “Section 215 helps us find a needle in a haystack” clearly he wants to keep the whole of NSA’s haystack, never mind its illegality.

In a Wall Street Journal opinion piece, Michael Mukasey, former Attorney General under George W Bush, describes

“a Rube Goldberg procedure that would have the data stored and searched by the telephone companies (whose computers can be penetrated and whose employees have neither the security clearance nor the training of NSA staff)… The government, under Mr. Obama’s plan, would be obliged to scurry to court for permission to examine the data, and then to each telephone company in turn”.

We’ve asked in earlier articles, doesn’t the Journal have editors? Why was this given space?

McConnell’s and Mukasey’s comments show an abysmal lack of understanding of how computer communications systems work. Phone companies wouldn’t do the searching, their employees would not be involved, and, yes, their computers can be penetrated — by NSA, armed with a FISA Court order that unlocks the special communication channel into the phone company’s database for the extraction of the call records of a single target phone number and no more, and within milliseconds, then reaches into other phone companies’ data for numbers calling or called by the target’s phone. That Mukasey cites a cartoonist who died in 1970 suggest he may be picturing the government ringing doorbells as how they go about getting data when he says “scurry[ing] to each telephone company”.

Obama, who got no further than a Blackberry and just opened a Twitter account, doesn’t show much greater savvy. He wants to create “an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data”, said a White House spokesperson. After all this time he hasn’t caught on to how it can be done.

money for nothing

McConnell evidently never got word that a panel appointed by Obama found that NSA’s years of collecting everything had been of negligible value. Nor did the Journal‘s editorial writer, who wishfully presumed that “the NSA continued to analyze metadata…because these details provide intelligence that is useful for uncovering plots, preventing attacks and otherwise safeguarding the country”. In fact, the NSA cannot point to any evidence that a terrorist has been unearthed or an attack has been thwarted by the collection of all this data.

That shouldn’t surprise. In December of 2005, the New York Times broke the story that, months after the 9/11 attacks, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States”. Officially anyway, that was limited to international phone and e-mail traffic, but that certainly tipped off the nether world that Big Brother is watching.

Then in May of 2006, USA Today dropped a still bigger bombshell: “The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth…The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom are not suspected of any crime”.

Over two years ago — before Snowden — we reported in this article on William Binney, an NSA alumnus who had worked on a precursor of the NSA spying, and who had concluded that “the NSA decided not to bother with the filtering protocols…but rather to simply collect everything — every e-mail, every cell and landline phone call, every credit card billing record, Facebook post, Twitter tweet and Google search of everyone in the country”.

What sensible terrorist would use anything other than a burner cell phone?

down to the wire

Yet Senate Intelligence Committee Chairman Richard Burr (R-NC) is unable to come to this simple realization. “I think people are reacting to a program they don’t know”,
is Burr’s myopia. And there’s McConnell refusing to back down, with pit bull Tom Cotton leading the campaign for a permanent surveillance state — you know, to protect our freedoms.

Facing them is an alliance of conservatives and liberals. Senator Rand Paul (R-Ky) wrote in Time magazine, ““The sacrifice of our personal liberty for security is and will forever be a false choice. I refuse to relinquish our constitutional rights to opportunistic and overreaching politicians”. He is joined by arch conservative Ted Cruz and arch liberal Ron Wyden. As authors of the Senate’s version of USA Freedom, Patrick Leahy (D-Vt) and Mike Lee (R-Ut) can be expected to filibuster to block McConnell.

Only days remain.

Obama Tarnishes His Own Environmental Legacy

How to explain a president who had to deal with the catastrophic blowout in the Gulf of Mexico that killed 11 and spewed some 5 million barrels of oil for 86 days, yet now has unaccountably invited a still greater disaster by giving conditional approval to Shell to once again attempt to drill in the Chukchi Sea northwest of Alaska, one of the most hostile environments on Earth?

The area is shallow — drilling will be in only 140 feet of water, which does not compare with the
Shell’s drilling platform aground in Alaska
Deepwater Horizon that exploded while operating in 5,000 feet of water in the disaster of five years ago. But shallow waters can produce much more turbulent wave forms, up to 50 feet high, in a region known for violent storms.

message not received

Shell has hardly won anyone’s confidence with a record of mishaps beginning with its prior attempt to drill three summers ago. After delays by sea ice, a $400 million containment dome it had constructed to cap a well in case of a blowout was “crushed like a beer can” in a testing accident.

Shell had already spent $292 million on upgrading its drilling platform named Kulluk when, in preparing to resume drilling in 2013, the company chose January in which to move the platform across the Gulf of Alaska to Seattle for further maintenance.

Kulluk is circular with the diameter of a football field and is half the weight of the Titanic. On the voyage south, its tug lost four engines to sea water intake, the drill rig broke its tow lines in 40-foot seas, a cutter tried in vain
to tow both stricken vessels, a second towline snapped when yet another ship made the attempt to control the platform, the crew had to be plucked from the drill ship by Coast Guard helicopters, and after a third towline snapped with two ships pulling the Kulluk, 50 knot winds and 35 foot seas made the risk of lives too great and forced the rescue crew to cut the drilling platform loose to run aground on Kodiak Island.

A lengthy article in the New York Times Sunday magazine section recounted the cascade of troubles, but the message has not registered with Shell. This page reported the Shell calamities over two years ago with something like relief that the oil giant might be discouraged, but no.

all fixed

The Interior Department has evidently seen to the prevention of a recurrence of the Deepwater Horizon debacle with and new safety regulations and “significantly strengthened and updated drilling regulations”, as reported in The New York Times. Safety requirements on blowout preventers have been tightened, too.

But the problem of Deepwater Horizon was that the blowout preventer could not be activated. And another branch of the Interior Department undercuts some of the lofty assurances that all is now well. Its Safety and Environmental Management unit says “the new regulatory system has yet to show measurable improvements”. The problem is humans making mistakes, says this Wall Street Journal report.

But the greater concern still is the harsh conditions well out at sea. The Alaskan Arctic has no deepwater port. The closest is in the Aleutian Islands at Dutch Harbor, a thousand miles to the south through the Bering Strait.

The Coast Guard lacks an adequate presence in the region. The Congressional Research Service says at least $3 billion is needed for equipment and ships such as icebreakers, which would be critical for reaching a stricken drilling platform in a sea filled with ice floes, but the Obama administration has offered only $8 million “to study” building one. The Coast Guard has only one of medium size and two heavy-duty ships, both from the 1970s and both inoperative. Former Coast Guard Commandant Robert Papp wanted six. He warned Congress in 2011 that we are dangerously unprepared to deal with a major spill in the Arctic. What if Shell brings in successful wells, a storm pulls a platform anchor and the giant bulk of the shifting platform snaps a drill stem? What will the challenges be in capping a well, and what happens if the job has not been completed when sea ice begins to form at summer’s end and ships working to control the spill must instead let it run over the winter or risk getting frozen in the ice?

Waco: Two Metaphors of America

By guest columnist Al Rodbell

The first time most Americans heard of this small city in Texas was in 1993, when a compound of a fringe messianic religion, “Branch Davidians”, was located there. The standoff, where the “messiah” David Koresh faced off with local, then the federal, authorities ended in what is largely seen as a travesty of governmental authority which caused the death of scores of innocent people.

Last week, twenty two years later, there was another bloodbath in Waco; this one also pitted government police power (a concept encompassing all use of force, from local police to national guard) that used such authorized lawful violence against another fringe group. David Koresh developed his cult under the expanded right of the First Amendment freedom of religion, while motorcycle gangs are protected under the expansive interpretation of freedom of speech — that we may associate with whomever we please unless there are very specific unlawful activities that must be proved by due process.

Waco 1993 demonstrated the excesses of government force; Waco 2015 showed why government must have power, ultimate power at times,
1993’s 51-day siege ended in 76 deaths
which includes limiting of activities and enforcement using force against citizens — the very same quality of violence that was misused in Waco 1993.

Use of Government force is rarely as clearly justified as it was last week. It is often to merely assert the legitimacy of government, ours in the U.S. that is predicated on democratic ideals (and some degree of practice) tempered by a Constitution that embodies principles beyond a single moment in time. A year ago this power of government faced off with an armed group, headed by rancher Cliven Bundy, that denied the the right of the U.S. government to claim ownership of part of the vast land that was not private property — grazing land in what became the State of Nevada — but was part of the Western Frontier. One rancher refused to acknowledge this and pay a fee to the federal government and challenged the U.S. to make him pay. In this case, the U.S. chose not to accept the challenge, and by doing so indicated that the claim to authority is limited by any organized group that is willing to call the government’s bluff.

Waco 1993 was something like this, but with a very different outcome. The government, under the guise of it’s inherent police power that is legitimized by due process, used force against those in a peaceful private facility, burning dozens of men women and children alive. The outrage by some who have a propensity to find the current system oppressive anyhow was the motivating force for a counterattack. It was in the form of blowing up a major Federal Building in Oklahoma city on the anniversary of Waco 1993, once again with the death of large numbers of innocents.

Most would agree that the use of authorized police power is appropriate against motorcycle gangs who intimidate and kill, gaining power in the illegal drug trade in association with the most violent Mexican cartels. Last week’s melee resulted in nine of the men shot dead by police and close to 200 are being charged with murder.

There is another dynamic to this story. For the last year there has been a nationwide movement under the title #blackLivesMatter that stems from the bias among some police agencies against African-American young men. One result of this, the degree of legitimacy I will not address in this essay, is to cast aspersion against all local police forces, painting with a very broad brush. Whether this will result in an improvement of policing or further exacerbating our political divide is an open question at this time.

“Waco” now represents both sides of major divide anchored on one end by the term “police state”, and the other by “law enforcement”. In reality there are excesses in all aspects of government. The law profession does provide for disproportionate protection of the wealthy accused of civil or criminal actions, in this respect thwarting the will of the people and elected representatives. Yet, it is a profession that is integral to maintaining and defining that elusive concept of “due process”. Lawyers are not charged with inserting themselves into settings where their lives are in danger, as are sworn police officers. Lawyers do not carry weapons yet their activities can destroy lives by excessive prosecution just as frequently as those in blue uniforms.

“Waco” — both versions separated by almost a quarter century — should be part of the national discussion of creating a lawful society. We need police, just as we need a legal profession, with the caveat that the professions serve the larger society. Each group by the very nature of things will attempt to isolate themselves from legitimate criticisms that could lead to lessening their own benefits. Only an active, but open-minded citizenry can ensure that all of our segments of law enforcement serve our society. The challenge is ongoing.

                       Al’s commentary can be found at AlRodbell.com.

May 23 2015 | Posted in Zeitgeist | Read More »

The Fight Is On to Halt Obama’s Emissions Cleanup

The nuclear agreement with Iran, the Trans-Pacific trade pact, his “Clean
Power Plan” to reduce power plant emissions — Barack Obama is clearly on a tear to embellish his legacy in what he calls “the 4th quarter” of his presidency.

He’s getting guarded cooperation on the first two, but a pitched battle is underway to subvert the last.

The power plan, announced a year ago, is the centerpiece of the president’s ambitions to confront climate change. It calls for states to reduce their emissions 30% by 2030. The “rule” that will spell out what states must do and by when is due this summer and is expected to offer a menu of choices. Environmental Protection Agency (EPA) chief Gina McCarthy has signaled that each state will be free to develop its own plan employing a mix of solutions from power plant fixes to wind and solar renewables to efficiency measures and even state or regional markets for trading pollution permits commonly called “cap-and-trade”.

rush to judges

Twelve states quickly filed suit nevertheless. The courts may not be the most fruitful avenue for finding agreement, however. The Supreme Court ruled in 2007 that carbon dioxide (CO2) is a pollutant subject to EPA control under the Clean Air Act of 1970, which was strengthened in 1990, and has upheld the EPA’s authority to curb CO2 three times in the previous seven years. Just this year it ruled 6-2 that 28 Midwestern and Appalachian states are subject to EPA’s cross-state air pollution rule that limits power plant emissions blown into downwind Northeastern states.

Lawyers for the dozen plaintiff states and the nation’s two largest coal companies went before the D.C. Court of Appeals in April to try to block the EPA from issuing its summer rule. They got nowhere. Judge Thomas Griffith seemed incredulous: “Do you know of any case in which we’ve halted a proposed rule-making?”, he asked. “It’s a proposed rule. We could guess what the final rule will be. But we’re not in the business of guessing”.

unconstitutional!

One eminence arguing for the plaintiffs was Harvard’s constitutional scholar, Laurence Tribe, who has forsaken his liberal credentials to represent Peabody Energy, America’s largest coal producer. He evidently wants to change to an F a passing grade that he once gave to a former law school student, last name Obama, who he says is now “burning the Constitution“, as he put it in a House of Representatives hearing this March. The EPA is “coloring outside the lines…commandeering the states”, says Tribe, with no right to force them to change their energy economies.

rogue senator

In March, Mitch McConnell colored well outside his own lines by sending letters to all 50 governors urging them to ignore the EPA program and its requirement to submit an emission reduction plan. It was not simply an unusual action — McConnell may represent a coal-producing state, but one would think that as Senate Majority Leader he would place greater emphasis on what is important for the nation than on his parochial concern for a dying industry in Kentucky.

It’s not just a letter. McConnell “is coordinating with lawyers and lobbying firms to try to ensure that the state plans are tangled up in legal delays”. It is an abuse of his position as Leader, which carries the implicit threat to states that if they don’t march to his commands, there could be consequences.

McConnell wrote to the governors that the president is “allowing the EPA to wrest control of a state’s energy policy”. If that sounds like Tribe’s “commandeering”, it is because McConnell quotes Tribe in the letter. Colleagues at Harvard think the venerated Tribe has gone ’round the bend, but the weakness of his arguments may not be apparent or of concern to conservatives. Tribe has given them the imprimatur of a constitutional heavyweight to name drop — and from the opposition!.

paper tiger

Attacks are coming from Congress itself. Representative Ed Whitfield (R-Ky) has put forth a bill to stall implementation of the EPA rule until all legal challenges have been resolved and to permit states to opt out of compliance if following the rule would increase electricity rates or threaten the grid’s reliability. Senator Shelley Moore Capito (R-WV) announced that she would follow suit by introducing a bill in that chamber.

states’ writs

But those, with vetoes assured, are harmless. More troublesome is the work of the American Legislative Exchange Council, an organization funded by corporate clients to press state legislatures to adopt model conservative laws written by ALEC that further the interests of its clients. We reported on them three years ago. ALEC’s fondest wish is to abolish the EPA altogether and transfer health concerns and environmental protection to the states to do as they please, but for now it will settle for two model bills that it will propose to the roughly two-thirds of state legislatures now under Republican control.

State environmental agencies have for decades worked directly with the EPA on Clean Air Act matters, but ALEC’s first bill would require that a state’s agency must now seek the state legislature’s approval of any emission reduction plan before submitting it to the EPA. The second bill requires that all legal challenges be resolved before submission as well, the intent clearly being to open the door to the delays of an endless series of fabricated challenges.

from the shadows

The Koch brothers are behind layers of groups with anodyne or patriotic names whose objectives are to perpetuate the hydrocarbon economy and disrupt any movement toward renewables (see this report on the Koch campaign against solar). So you likely wouldn’t know if you received a report from an outfit named Beacon Hill Institute, connected to Boston’s Suffolk University, is partly funded by the Koch Brothers. Its has issued reports tailored to each of seven states (with more presumably to come) showing how their economies will be damaged by the Clean Power Plan. The reports were actually written by a D.C. public relations firm named Berman and Company, which oil and gas companies hire to get their message out.

Owner Richard Berman’s specialty is setting up front groups for the purpose of attacking advocacy groups that work to expose industrial malefaction. The website bermanexposed.org shows the logos and descriptions of no less than 47 of them. Have a look.

The reports against Clean Power Plan are contrived — they tally job losses from the hypothetical shutdown of coal-fired power plants with no mention of the new jobs created for converting to natural gas and renewables, nor mention of the ongoing health costs of failing to deal with pollution — but the typical reader may not know enough to be suspect.

The reports are sent to state legislatures and the media. Typically one of the state-level front groups affiliated with the conservative State Policy Network, also partly Koch Brothers funded, is assigned to follow up with a seemingly unaffiliated op-ed piece praising the report. Media Matters, a progressive watchdog group,
cites at least sixteen newspapers that have recently published op-eds bearing titles such as “Arizona should fight useless coal regulations” and “Virginia state legislators should fight the EPA” that were written by state officials of Americans for Prosperity, the Koch brothers’ political advocacy group. All but one paper failed to disclose the authors’ oil industry ties.

does tribe have a case?

In a Wall Street Journal op-ed, Tribe says that “to justify the Clean Power Plan, the EPA has brazenly rewritten the history of an obscure section of the 1970 Clean Air Act”. EPA ignores section 111’s prohibition against further regulation of power plants is they are already being regulated under another section involving hazardous pollutants, which is the case for power plants.

In an editorial titled “Professor Tribe Takes Obama to School”, the Journal goes all in for Tribe, calling the EPA’s resorting to the actual text of the Clean Air Act “legal scavenging…characteristic of this administration”. “In his Harvard days”, the editorial continues, “Barack Obama studied under law professor Laurence Tribe” (whom the editors call a “titan”). “Perhaps the future President spent too much time at the law review and missed the part about limited powers”. The Journal‘s edit writers can’t seem to help being snide. The paper uncritically buys into Tribe’s notion that the EPA is violating “the Constitution’s Article I, Article II, the separation of powers, the Tenth and Fifth Amendments, and [is] in general displaying contempt for the law”. Whew!

What actually happened was that, when the Clean Air Act was amended in 1990, conflicting House and Senate amendments to Section 111(d) were both adopted, presumably by accident, rather than conformed into a single amendment, and both are in the law signed by President Bush. The House version stands in the way of the Clean Power Plan by preventing EPA from regulating any industrial source that is already subject to toxic pollutant standards under Section 112, as are power plants. The Senate version does not.

Tribe chooses the more restrictive version and in that House hearing in March called the Senate’s counterpart a “ghost” version, as if it doesn’t exist. By the EPA choosing the more expansive version as the basis for the Clean Power Plan, it is usurping Congress’ law-making authority, says Tribe.

“But any amendment passed by Congress and signed by the president is the law, plain and simple”, rebut two of Tribe’s Harvard colleagues, law professors Jody Freeman and Richard Lazarus. Complex laws often have inconsistencies — the future of the Affordable Care Act is about to be decided based on just such a contradiction — and it is the usual practice to allow discretion to the agency charged with enforcing a law, in this case the EPA.

Tribe’s assertion that the EPA’s “commandeering of state governments” will violate the Tenth Amendment, which reserves power to the states, says that all the government’s past actions in the name of health — taking lead out gasoline and paint, banning asbestos insulations, eliminating ozone-depleting chloroflourocarbons, etc. — were also violations.

Tribe invokes the so-called “takings” clause of the Fifth Amendment as well. Among its prohibitions it says “nor shall private property be taken for public use, without just compensation”. If a power utility elects to shut down a plant rather than retrofit pollution scrubbers, that’s its election. The EPA will not have taken possession. And the notion that the utility should be compensated for not polluting (and after decades of polluting) makes one wonder about the professor. “This is ridiculous”, say Freeman and Lazarus. “Were Professor Tribe’s name not attached to … sweeping assertions of unconstitutionality … no one would take them seriously”.

borne back ceaselessly

The deference in the Constitution that the founders paid to the states — apprehensive that a central government might acquire the power of the monarchies they had left behind in Europe — was an understandable necessity of the times, essential to obtaining the agreement of the states to band together as the United States.

But almost two and a half centuries later, we are shackled by the mindless who think every move by the federal government is a power grab, with the result that progress toward desirable goals moves glacially if at all, while the rest of the world speeds past.

The forces arrayed against the EPA’s plan to finally, after decades of permissiveness, control power plant pollution, are dismaying. The plants have had their way for decades, fighting every attempt to clean the air (51 lawsuits from the Clinton administration were erased when Bush/Cheney took office).

Of course we should cut pollution spewing into the thin atmosphere that we need to survive. Of course even the deniers should want steps to be taken against climate change as a hedge should they be wrong. How could there be any argument?

Instead we are beset with paranoid ideologues who want to fix nothing and preserve 50 of everything and plutocrats of towering avarice whose only concern is to preserve their private monarchies. What the two have in common is an inability to see much past the day after tomorrow and an indifference to what will to become of this country after they are gone.

May 22 2015 | Posted in Energy & Climate | Read More »

Maybe You’ll Have Your Day in Court Again

Hopefully you’ve never had a serious dispute with any of your credit card companies, or your bank, your investment broker, your mortgage lender, your cell phone service, your cable television provider, or increasingly just about everyone you contract with, even local merchants such as a gym or a tanning salon. Because deep in the legalese behind the checkbox that you clicked on the Internet labeled “Accept”, or in the text you never read before you signed a paper contract, is a policy that over half of U.S. businesses have adopted that says you can’t take them to court if you have a disagreement. You can only submit to “arbitration”.

Arbitration clauses began their proliferation in corporate contracts when the business-friendly Supreme Court in 2011 approved companies mandating it as the only option for settling a dispute. Of the 50 largest banks, by the following year 28 had already limited their checking account holders to arbitration. In a survey of 350 companies, the percent that allow only arbitration to 43% last year from 16% in 2012. In some categories, there is virtually no exception: 99.9% of cell phone users have — unwittingly, no doubt — agreed to arbitration as have 92% of prepaid cards and 86% of private student loan borrowers.

In a 2013 case, the Court then doubled down, allowing corporations to add a rule that forbids us from joining a class action to seek relief in a dispute. The Court said that we should not expect a “guarantee of an affordable procedural path”.

The result, of course, is that consumers are left on their own to pursue a complaint — even though it may be a problem shared by hundreds or even thousands of others — because they are barred from joining the others to form a class by the rules the company forced upon them. The cost of a lawyer to battle as an individual a battalion of attorneys at giant corporations is prohibitive. Consumers are forced to leave the money on the table and surrender. “Forget it. It’s impossible. Not even worth trying”, says a lawyer with Public Justice, a D.C. non-profit. [3]

The effect of the Supreme Court’s decision is to hand victory over consumers to corporations without a fight. The number of arbitration claims for amounts under $1,000 have been driven almost to extinction.

a voice for the people

The Consumer Finance Protection Bureau was created by the Dodd-Frank reform law, and it required that the new agency study the arbitration question. It took three-years to produce a just-issued 728-page report that concluded what anyone who has been subjected to arbitration could have come up with over a lunch break, namely, that arbitration lets businesses act against customers with impunity and customers regularly lose. If the CFPB does what it was created for, we could at least see a bitterly fought battle against business interests and their lobbying organization, the U.S. Chamber of Commerce. At least the practice is finally being contested in the open, or so it should be hoped.

But for the years any improvement will take, the deck is stacked in favor of business. Companies are now even making acceptance of arbitration for dispute resolution a condition of employment, stifling employees who may at some pint have claims of wage theft, discrimination or other labor law matters. The suppression of their complaints serves to make illegal conduct by businesses invisible.

Under arbitration the complainant and the corporation’s representative go before usually a single individual from a firm that specializes in judging disputes. The arbitrator hears both sides and renders a binding decision. So much simpler and economical than a court trial. Problem is, the arbitration firm chosen and hired by the corporation. If that firm decides against the corporation more than a token number of times, they lose the corporation as a client. A 2011 “Frontline” documentary on PBS showed the example of First USA, a company that handles credit card transactions. It had won 19,618 cases in arbitration. How many cases did card users win? 87.

it’s class action that matters

When a bank or corporation demands that we agree not to join a class action should we ever have a dispute, we cannot exactly go down the street to another bank, or search out another credit card company because they have developed what could be called a monopoly of policy that shuts us out if we don’t submit. As an example of what is lost in the Supreme Court’s several decisions that chip away at class action, consider the case brought against a major bank a few years back. Say you pay several bills at once online which in total will accidentally lead to an overdraft. The bank’s computer algorithms were written to process the biggest payments first so as to reach overdraft quickest, and then charge an overdraft penalty such as $35 for each of the smaller payments that were deliberately processed last. In a class action against Wells Fargo in 2010 the bank’s clients were awarded $203 million for such practices. By its 2013 ruling the Supreme Court is effectively saying to consumers, stop whining. Just pay the multiple fines to the bank and move on.

The Great Congressional Yard Sale

<|104||This land isn't your land>First there was a 228-119 vote in the House of Representatives that declared that the amount of land held in trust by the federal government for the people of the United States “is far too large” and should be reduced because that would lead to “increased resource production”, which clearly means oil and gas drilling and minerals excavation.

Then the Senate went the House one better. In a move without precedent, prior announcement, or public debate, much less public awareness, the senators voted 51 to 49 to get rid of all of it. They voted that all federal land other than the national parks and monuments should be put up for auction and sold.

Both were non-binding resolutions, but they made clear that the Republican-controlled Congress is intent on transferring the ownership of America to the major corporate sponsors that pay for their election campaigns.

Proof of Police Preying On Civilians

<|96||Ferguson report confirms>

Readers expressed disbelief of our story titled ” Law Enforcement Has a License to Steal from You” which ran last November. It reported the growing criminality of police stopping mostly blacks and Latinos on America’s highways, searching their cars, and giving them the choice of signing over everything found in the car or facing arrest. Police departments use the sale of the proceeds to fund their departments. You can find that story here.

Then came the investigative report on the police in Ferguson, Mo., exactly corroborating what we reported. Calling it a culture of “predatory government”, the report said that the city’s municipal government considered its police department as a kind of “collection agency” to bolster the town’s revenue. Offered promotions if they increased their “productivity”, cops preyed upon mostly blacks, writing inflated citations such as $427 for disturbing the peace or $102 fines for unmowed lawns. The report called it “predatory government”.