My fellow Americans, it's time to set aside our xenophobia. For the good of our country, let's help drain China's brains.
American lawmakers, backed by the drone industry, are looking to ban Chinese-made consumer drones. Like the proposed ban on TikTok, Chinese drone bans have been justified by fears of Chinese surveillance, but the real motivation seems to be protectionism: American companies are trying to edge out their foreign competition.
Earlier this year, Congress passed the American Security Drone Act as part of the military budget. The law bans federal agencies from buying drones from any company based in China and gives the Department of Homeland Security the power to declare other drone manufacturers "national security risks."
Several states also issued state-level drone bans last year. Mississippi required state agencies to buy American-made drones, while Arkansas and Florida outright banned state agencies from using Chinese-made drones. After Florida's ban took effect in April 2023, police and rescue services scrambled to replace their drone fleets which had cost taxpayers hundreds of thousands of dollars.
The federal Countering CCP Drones Act would go even further, putting the Chinese company DJI on the Federal Communications Commission's list of untrustworthy suppliers. That move would immediately ban new DJI products from being approved for import, and might pave the way to ground existing drones, according to DJI.*
About 90 percent of hobby drones in America are made by DJI—as well as 70 percent of the industrial drones and over 80 percent of first responder drones—so a ban would force hundreds of thousands of Americans to give up their expensive flying cameras.
"Communist China is using their monopolistic control over the drone market and telecommunications infrastructure to target Americans' data and closely surveil our critical infrastructure," the bill's sponsor Rep. Elise Stefanik (R–N.Y.) said in a statement earlier this month. There is no evidence that DJI drones transmit data to the Chinese government.
The Association for Uncrewed Vehicle Systems International (AUVSI), a prominent nonprofit representing drone manufacturers and users, opposes Stefanik's ban on consumer drone usage. But the association wants to ban government agencies from buying new Chinese-made drones and push them to transition to American-made alternatives.
"Really, what we are focused on is the domestic supply chain for [unmanned aerial systems]," or UAS, says AUVSI spokeswoman Chelsie Jeppson. "If we are reliant on drones for critical and sensitive operations that come from another place…and if something were to happen where we could not get them securely or use them at a time when we need them the most, then that would be a supply chain issue for the United States."
The news site DroneXL criticized AUVSI for claiming to oppose "immediate" Chinese drone bans while supporting a Utah bill that would immediately ban public agencies from buying Chinese- or Russian-made drones.
AUVSI Government Affairs Manager Elizabeth Sila says that her only engagement with the Utah bill was a single email, of which she provided Reason with a copy. The email both supported the ban on drone procurement and opposed the idea of creating state-regulated "drone highways."
Jeppson emphasizes that there is a difference between procurement and usage. "We do support a movement away from their immediate procurement, but we don't want to ban agencies from using drones that they've already purchased," she tells Reason.
AUVSI issued a white paper in 2023 calling on Congress to use tax incentives, grants, and tariffs to stop China from "flooding the U.S. market" with cheap drones "to the detriment of U.S. manufacturing and global competition."
The Shenzhen-based company DJI was and still is the undisputed leader of the consumer drone revolution. Its Phantom quadcopters kicked off the camera drone trend in 2013, and DJI continues to control over 70 percent of the global market share for consumer drones. Its biggest competitor, Autel Robotics, is also based in China.
American companies simply haven't been able to keep up with DJI's cheap, reliable, and user-friendly products. Camera manufacturer GoPro tried to break into the drone business in the early 2010s but discontinued its Karma flying camera after disappointing sales numbers and performance issues, including drones literally falling from the sky.
Other American drone makers have focused on government contracts rather than consumer products. Skydio has "effectively tapped-out of the consumer and prosumer space," according to drone blogger Chris Fravel, while BRINC markets entirely to first responders.
And they've spent increasingly large amounts of money on lobbying. Skydio went from a lobbying budget of $10,000 and six registered lobbyists in 2019 to a $560,000 budget and 24 lobbyists in 2023, according to OpenSecrets.org, a campaign finance data platform. BRINC spent $240,000 on lobbying in 2023.
DJI has also jumped from spending $390,000 on lobbying in 2016 to $1.6 million in 2023. The company recently hired three new lobbying firms after DJI's former lobbyists dropped the company over some lawmakers' threat to boycott lobbyists for Chinese interests.
The U.S. government has gotten increasingly aggressive against Chinese companies. In 2018, the U.S. military banned troops from buying off-the-shelf drones over cybersecurity concerns. The next year, Congress specifically banned Chinese-made drones for military use. In 2020, the U.S. Department of Commerce banned American companies from selling parts to DJI over concerns that the Chinese government was using DJI drones for domestic surveillance and human rights abuses.
In January 2024, a few days before the American Security Drone Act passed, the Cybersecurity and Infrastructure Security Agency and the FBI issued a joint statement pointing out the risk of Chinese drone manufacturers handing over data to China's government.
DJI insists that its products do not collect or transmit data without the user's consent. The Shenzhen-based drone manufacturer points to several outside security audits of DJI products by the U.S. National Oceanic and Atmospheric Administration, the U.S. Department of Interior, the U.S. Department of Homeland Security, Kivu Consulting, and Booz Allen Hamilton.
Another concern is that Chinese companies could remotely disable drones to give China a wartime advantage. That concern is more grounded in reality. DJI's FlySafe feature has long prevented its drones from being flown in restricted airspace, and DJI quietly added large parts of Syria and Iraq to the restricted zone in response to Islamic State attacks.
Autel Robotics recently implemented its own flight restrictions, including not only active war zones such as Ukraine and Israel but also Taiwan, an island whose independence China does not recognize. DJI, meanwhile, has been hit with criticism for not preventing its drones from being used by the Russian and Ukrainian militaries.
These restrictions are easy to get around. Several websites offer cheap software for jailbreaking the DJI app. And there's a simple way to avoid getting hit with new flight restrictions: Don't connect the drone to the internet. Autel Robotics actually advised users in conflict zones not to download any new updates, which is not the behavior of a company that wants to enforce Chinese government dictates.
DJI even rolled out a line of "Government Edition" drones in 2019 that would not connect to the internet, in order to assuage data security concerns. The Defense Department internally cleared those drones for use after reverse-engineering their source code, then walked back its approval after it leaked.
"The nature of the attempts to ban Chinese drones are that if you look at a lot of the efforts, it's 'no Chinese parts, no Chinese software.' So, we would have to really produce a much more expensive drone," Adam Welsh, head of global policy at DJI, said in an interview earlier this month. "Frankly, if you use an iPhone, it's using Chinese parts, and it's manufactured in China. There's a lot of sensitive traffic that goes over people's iPhones. So, I think that's a real problem with this effort."
*CORRECTION: This article initially stated that the Countering CCP Drones Act would ban DJI drones from using American radio waves entirely.
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]]>Federal prosecutors are pursuing a deal to allow WikiLeaks founder Julian Assange to avoid espionage charges and instead plead guilty to the misdemeanor of mishandling classified data. The Wall Street Journal first reported on the talks between U.S. authorities and Assange's lawyers on Wednesday. The independent outlet Consortium News then confirmed that it had learned the same details "off the record" several months ago.
Assange has been detained in Britain for five years awaiting extradition, and the Journal reported that he "would likely be free to leave prison shortly after any deal was concluded" due to time served.
Although it's not a done deal, the proposal is good news for the First Amendment, because it avoids setting a precedent that allows the U.S. government to treat journalists as spies.
Attorney General Merrick Garland still has to sign off on any deal, according to the Journal. And Assange's brother Gabriel Shipton told Consortium News that Assange is dead-set against signing a deal that would require him to come to the United States, due to worries that the U.S. government could change the terms at the last minute.
After the news broke, Assange's lawyer Barry J. Pollack stated, "We have been given no indication that the Department of Justice intends to resolve the case." Pollack didn't deny that negotiations were happening, and accusing the other side of being unserious could be a negotiating tactic.
But both sides have a strong incentive to avoid a trial. In addition to saving Assange from significant jail time, a plea deal could allow the Biden administration to wriggle out of a self-inflicted political conundrum.
WikiLeaks became a thorn in the U.S. government's side in the early 2010s when it published classified data provided by former Army intelligence analyst Chelsea Manning, including a database of U.S. diplomatic cables and a video of a U.S. Army helicopter gunning down a news crew in Iraq.
The Obama administration prosecuted Manning but decided not to prosecute Assange because of the "New York Times problem." Even though WikiLeaks is not a traditional newspaper, its activities are legally not so different from The New York Times and other news organizations, which often publish stories based on leaked classified information.
Indeed, Assange partnered with the Times, The Guardian, and other international outlets for the "Cablegate" leaks. When the Trump administration finally decided to prosecute Assange for espionage in 2019, the Times editorial board called the case a weapon "aimed straight at the heart of the First Amendment."
Because of Assange's case, a bipartisan group in Congress is pushing for a law to overhaul the Espionage Act completely.
With a misdemeanor plea deal, prosecutors could avoid a fight over the Espionage Act and the First Amendment, without looking like the Biden administration backed down. As the Journal put it, putting Assange on trial "would throw a political hot potato into the lap of the Biden administration."
The post Biden Wants To Avoid a First Amendment Showdown Over WikiLeaks appeared first on Reason.com.
]]>The Pennsylvania-based U.S. Steel company recently agreed to be purchased by the Tokyo-headquartered publicly traded company Nippon Steel. This deal makes sense to economists. It will encourage other foreign companies to invest in the U.S., creating wealth and new job opportunities, and further shoring up the U.S. economy, particularly amid inflation worries. More importantly, this deal makes sense to the owners of U.S. Steel.
And yet, in our age of government shoving its fingers into everything, President Joe Biden announced that he opposes this purchase for muddled, misguided reasons. Former President Donald Trump agrees, showing once again that when it comes to trade there is little difference between the two presidents.
Such government meddling is what American steel producers get for having clamored for decades—often successfully—that they need protection from foreign competition. The Trump steel tariffs are the latest expression of this attitude. But one stupid policy move doesn't justify a second. As soon as the announcement of Nippon's $14.1 billion deal with U.S. Steel was made public, fans of protectionism and industrial policy, including prominent policymakers, came swarming out of the woodwork to explain why the government should be able to override, or at least modify, the decision of the rightful owners of a company to sell their company to a particular buyer.
Assertions of dangers to "national security" are being used to scare Americans into thinking that a good deal for investors, employees, and the U.S. economy will somehow make America less militarily secure. This is nonsense.
Japan has been a strong ally of the U.S. for over 60 years. In a recent piece, the Cato Institute's Scott Lincicome and Alfredo Carrillo Obregon remind us that "the Defense Department doesn't currently buy from U.S. Steel, and DOD needs just 3 percent of domestic steel production to meet its procurement obligations." Furthermore, U.S. Steel, despite its historic significance, is no longer a major player in the steel industry and could benefit from Nippon Steel's investment and technology enhancements. Besides, foreign investments, including those from Japan, are typically beneficial to the domestic economy and workforce—and to the millions of Americans holding corporate shares in retirement portfolios.
According to the fearmongers, Nippon Steel, being a Japanese company, perhaps harbors secret plans to spend $5 billion above U.S. Steel's market capitalization to shutter it. Obviously, this is total nonsense. It should go without saying that investors don't purchase companies to then shut down those companies' profitable operations. Yet it needs to be said, since that's one of the main fears about the acquisition. The fact is that Nippon, by saving U.S. Steel and enhancing the domestic production of steel, will bolster our national security. Opponents of the deal ignore this reality. Yet again, the facts don't seem to matter to those who use nationalist rhetoric to oppose Americans' peaceful commercial dealings with non-Americans—in this case, even a crucial, decadeslong ally.
The business practice of buyouts is not inherently bad. Nippon Steel will save U.S. Steel and make it better through new ownership. John Tamny wrote at Forbes on March 4 that "neither bankruptcy nor buyouts signal the vanishing of businesses as much as they signal the happy, pro-employee and pro-business scenario of physical and human capital being shifted into the hands of more capable stewards." Tamny is right, and U.S. Steel is in a good position if another successful company sees value in purchasing the company to make it more efficient and productive. For all the protectionist handwringing, you'd think policymakers would recognize that this buyout will save the company from eventual bankruptcy without the deal and might secure the jobs of U.S. workers.
The merged company will be able to provide for the massive demand for high-grade steel in the United States—demand exploding in no small part because of increased domestic production of electric vehicle motors. It makes economic sense for Nippon Steel to invest in this Pennsylvania-based company to meet the growing demand for steel in the U.S.
Nippon Steel has the potential, and the incentive, to restore U.S. Steel into a strong and leading steelmaker once again, unless the U.S. government and the hordes of economic nationalists get in the way. As meddling in the dealings of successful companies increases, the American economy will suffer the creeping statism that has hamstrung so many European economies, where intrusive government control impedes private enterprise.
COPYRIGHT 2024 CREATORS.COM.
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]]>At China's behest: Yesterday, Hong Kong passed a new national security law that will create draconian penalties for all manner of political crimes. Beijing puppet/Hong Kong leader John Lee says these swiftly passed laws "allow Hong Kong to effectively prevent and put a stop to espionage activities, the conspiracies and traps of intelligence units and the infiltration and damage of enemy forces." He's trying to push a narrative that such laws—passed expeditiously over 11 days, the fastest a bill has gone through Hong Kong's legislature since 1997—are needed to thwart Western spying. But what they actually represent is a massive encroachment on the already-eroded civil liberties of Hongkongers who have been absorbed back under mainland Chinese rule.
"The law criminalizes the possession of state secrets, which some international financial firms fear could include information about the state of the economy," reports Semafor. "It also expands the definition of espionage to such an extent that it could have a chilling effect on all exchanges with foreign diplomats, one law professor at the University of Hong Kong warned the government last month."
The law, called Article 23, is needed to deal with "potential sabotage and undercurrents that try to create troubles," according to Lee, including "ideas of an independent Hong Kong."
"This is the high point of patriotism," said Lee, following the bill's passage. No, it's not.
Some background: In 1997, the British, who were colonial rulers of Hong Kong for more than 150 years, reached an agreement with mainland China to hand the island back over. One of the major conditions of the deal was that Hong Kong would for 50 years—so until 2047—maintain a high degree of political independence, including operating its own separate government under what is essentially its own separate constitution.
Then, over the course of 2019 and 2020, this agreement was violated; China put pressure on Hong Kong to pass certain laws—mostly under the guise of national security—that would undermine civil liberties Hongkongers had enjoyed for the past two decades. Those who spoke out against these actions were swiftly disappeared or fired or de facto barred from their positions of influence. Then the pandemic provided even more opportunities to surveil students and political organizers, to quash the massive protest movement that had taken to the streets to oppose Chinese Communist Party (CCP) rule, and to suppress the political norms that had formerly thrived in Hong Kong. The CCP even boldly culled Hong Kong's legislature of people deemed insufficiently "patriotic," instituting loyalty oaths to Beijing.
Now, China—with heavy cooperation from Hong Kong's leader—is finishing the task it started. Article 23 fails to define what "external interference" or "insurrection" actually mean, but deals with plenty of purported political crimes by doling out life sentences in prison. "Law-abiding people will not be caught by the law inadvertently," assures a government spokesperson; but the many people (and firms) who've reluctantly fled Hong Kong—and those who got to leave are the lucky ones—since the national security law was first imposed in 2020 would beg to differ. When the CCP gets to define what "law-abiding" means, you have no assurance you'll be safe.
Literal car salesman wins Ohio: "Bernie Moreno, a former car dealer endorsed by Donald Trump, won a three-way GOP primary Tuesday for the right to take on Democratic Sen. Sherrod Brown in Ohio," reports Politico, which calls Moreno's win "a relief for the former president."
Basically, Republicans need to win this Ohio senate seat to possibly have a majority post–Election Day. And most political commentators saw this race in particular as an opportunity for MAGAism to either be affirmed or repudiated; Moreno winning gives weight to the idea that Trump has a strong hold on Ohio—and possibly the rest of the country, too.
Scenes from New York:
wait what pic.twitter.com/a6zhPLxbea
— Jesse Singal (@jessesingal) March 19, 2024
The Department of Energy's head of science announced yesterday she's stepping down.
Her signature achievement, per her letter, was creating a new DEI paperwork requirement for grant applicants. pic.twitter.com/KGaEz5PmA1
— Santi Ruiz (@rSanti97) March 19, 2024
The post Hong Kong Falls, Again appeared first on Reason.com.
]]>Air Base 201 in Niger was the U.S. Air Force's largest construction project in history: a massive drone center that cost American taxpayers $280 million. Thanks to a change in the Nigerien leadership, Americans may have to give up that investment for good.
Niger's new nationalist government, which took power in a coup d'etat last year, has been trying to get rid of foreign military presence in the country. Over the weekend, Nigerien Col. Amadou Abdramane ordered U.S. troops out of Air Base 201, declaring on television that "the American presence in the territory of the Republic of Niger is illegal."
The Biden administration seems to be stalling. Pentagon spokeswoman Sabrina Singh and State Department spokesman Vedant Patel both said that the United States was seeking "clarification" on the Nigerien government's comments. (What exactly is so unclear about "the American presence…is illegal"?)
The last straw seems to have been a meeting between American and Nigerien officials last week. U.S. Assistant Secretary of State for African Affairs Molly Phee criticized a Nigerien deal to sell Iran uranium, growing Nigerien-Russian military ties, and Niger's failure to return to democracy, according to The Wall Street Journal.
After the meeting, Abdramane went on television to condemn the "condescending attitude" of the Biden administration.
"Niger regrets the intention of the American delegation to deny the sovereign Nigerien people the right to choose their partners and types of partnerships capable of truly helping them fight against terrorism," he said.
The U.S. military is ostensibly in West Africa to help local governments fight against Islamist rebels, such as Al Qaeda, the Islamic State, and Boko Haram. But the problem has only gotten worse: The U.S. State Department, which reported just nine terrorist attacks throughout all of Africa in 2002 and 2003, recorded 2,737 incidents in Burkina Faso, Mali, and western Niger alone in 2022.
The U.S. presence in Niger, unknown to most Americans, has been a mess for years. In 2017, the Islamic State ambushed and killed four U.S. Green Berets. The U.S. military reprimanded several commanders for improperly preparing the troops and lying about their mission. In 2022, local bandits robbed a van carrying $40,000 in American taxpayer money, meant to pay local employees, in broad daylight just outside Air Base 201.
Many West African countries are former French colonies, and France has also used counterterrorism missions to retain its influence over the region it calls "Françafrique."
Resentment over the American and French presence boiled over in 2020, when West Africa began to suffer a series of military coups, bringing anti-Western governments to power. Ironically, many of the coup plotters—including the Nigerien officers—had also received U.S. military training before turning against their American backers.
One of those officers, Gen. Abdourahmane Tchiani, blamed the failure of such U.S. military aid for his decision to overthrow Niger's elected government.
"The current security approach has failed to secure our country, despite the heavy sacrifices made by Nigeriens and the appreciable and appreciated support of our external partners," he said in a speech shortly after seizing power. "No, the results have not lived up [to] our expectations, and we can no longer continue with the same approaches proposed to date."
The post America's $280 Million Military Mission in Niger Ends in Failure appeared first on Reason.com.
]]>The House of Representatives voted 352-65 on Wednesday for a bill that threatens to ban the social media platform TikTok. The Protecting Americans from Foreign Adversary Controlled Applications Act would ban TikTok from app stores unless its Chinese parent company ByteDance gives up ownership within six months.
The vote moved America a little bit closer to the Chinese-style online censorship that TikTok's opponents decry. Whether they acknowledge it or not, TikTok's opponents are using the same arguments that Chinese and Iranian censors can—and do—use to justify cracking down on social media in their own countries.
Chinese authorities have long maintained a "Great Firewall" over the country's internet, driven by the idea that the success of American tech companies is a threat to their "cyber sovereignty." The Iranian government, too, has begun to embrace the idea of "internet sovereignty," banning foreign social media networks in favor of Iranian-controlled platforms.
American lawmakers have started to push the same notions. In a March 5 joint statement, Republican and Democratic members of the House Select Committee on the Chinese Communist Party claimed that foreign control of a social media platform is a threat to U.S. sovereignty.
"America's foremost adversary has no business controlling a dominant media platform in the United States," committee chairman Rep. Mike Gallagher (R–Wis.) said. Ranking Member Raja Krishnamoorthi (D–Ill.) added that the TikTok bill will protect Americans "from the digital surveillance and influence operations of regimes that could weaponize their personal data against them."
Foreign censors could rightfully make the same complaints about American social media. The U.S. government has infamously prodded tech companies to hand over user data, both overtly and covertly. The U.S. military and intelligence services even use advertising data to track potential targets.
It's true that TikTok's content moderation falls in line with the wishes of Chinese censors. But again, foreign critics can say the same about U.S.-based social media companies.
The Biden administration has used the specter of "disinformation" to push social media moderation in line with their policies. Meta has censored Middle Eastern content that opposes U.S. foreign policy, while Twitter has created loopholes for the U.S. military to run its own propaganda accounts.
Of course, American law (unlike Chinese or Iranian law) limits how much the government can censor social media. Last year, courts banned and then unbanned the Biden administration from pressuring social media moderators. But the decision ultimately lies in Washington; it's not like European or Latin American voters have any say over the U.S. Supreme Court.
Competition is the strongest force keeping the internet free. Whenever users find a topic banned on TikTok, they can escape to Twitter or Instagram to discuss the censored content. And when Twitter or Instagram enforce politically motivated censorship on a different topic, users can continue that discussion on TikTok.
Forcing TikTok under American control is a way to block that escape route. Instead of protecting Americans from Chinese censorship, it would bring Chinese-style censorship home.
The post TikTok's Opponents Want Chinese-style Censorship in America appeared first on Reason.com.
]]>Former Special Counsel Robert Hur faced bipartisan flak on Tuesday during a House Judiciary Committee hearing about his conclusions regarding President Joe Biden's retention of classified material after he served as Barack Obama's vice president. Republicans wanted to know how Hur could conclude that criminal charges against Biden were not warranted when Special Counsel Jack Smith is prosecuting former President Donald Trump for broadly similar conduct. Democrats complained about Hur's description of Biden as "a sympathetic, well-meaning, elderly man with a poor memory" and "diminished faculties in advancing age," which they portrayed as legally irrelevant and possibly motivated by the hope of a judicial appointment in a second Trump administration.
A 258-page interview transcript that was released ahead of the hearing sheds some light on the latter issue. The transcript, which is based on hours of recorded interviews with Biden that Hur and his staff conducted on October 8 and October 9, largely supports Hur's description of Biden in his February 5 report, which was legally mitigating but politically damaging in the context of the 2024 presidential race, given the concerns that voters have expressed about the 81-year-old president's cognitive health.
During the interviews, New York Times reporter Charlie Savage writes, "Mr. Biden appeared clearheaded most of the time"—an excellent example of damning with faint praise. Voters who think Biden is "just too old to be an effective president"—nearly three-quarters of them, according to a Times/Siena College poll conducted in late February—are not likely to be reassured by the assessment that he is usually "clearheaded." And Savage also highlights portions of the interviews that do not fit that description.
Some of Biden's recall failures are the sort of convenient memory lapses that are common in interviews with criminal suspects and civil defendants. "In trying to determine whether Mr. Biden had willfully retained certain classified documents, Mr. Hur repeatedly pressed him for details, like where and how his staff stored classified documents, who packed up when his vice presidency ended and where particular files had gone," Savage says. "Mr. Biden, who has denied wrongdoing, repeatedly demurred, saying he did not recall or had no idea how his staff handled such matters, and observing that there was 'a continuum of a lot of these people' who assisted with those tasks."
In particular, Biden professed ignorance of how sensitive documents related to the war in Afghanistan ended up in "a tattered cardboard box in his garage in Delaware, along with a jumble of unrelated materials": "'I don't remember how a beat-up box got in the garage,' he said, speculating that someone packing up must have just tossed stuff into it. He added that he had 'no goddamn idea' what was in a tranche of files shipped to his house and 'didn't even bother to go through them.'"
Other Biden memory lapses fall into a different category. In several exchanges, he seemed genuinely confused about basic facts such as when he served as vice president, when his son Beau died, and when Trump was elected president.
"Do you have any idea where this material would've been before it got moved into the garage?" Hur asked. "Well," Biden responded, "if it was 2013—when did I stop being vice president?" White House lawyer Rachel Cotton helped him out: "2017." Based on that cue, Biden said, "So I was vice president. So it must've come from vice president stuff. That's all I can think of."
When Biden was asked "how a particular folder…ended up in his garage" in 2017, he "mistakenly instead invoked the year the documents were from" and again seemed uncertain about the timing of his service as vice president. "My problem was I never knew where any of the documents or boxes were specifically coming from or who packed them," he said. "Just did I get them delivered to me. And so this is—I'm, at this stage, in 2009, am I still vice president?"
Savage argues that Hur "was selective in portraying Mr. Biden's memory of an ambassador's position." At one point, Biden mistakenly recalled that Karl Eikenberry, the U.S. ambassador to Afghanistan, disagreed with him about the merits of a troop surge. But at another point, Savage notes, Biden correctly remembered that he and Eikenberry were on the same side in that internal debate.
In his report, Hur said Biden "did not remember, even within several years, when his son Beau died." In remarks to the press shortly after the report was published, Biden expressed anger at that line. "How in the hell dare he raise that?" he said. "Frankly, when I was asked the question I thought to myself it wasn't any of their damn business." But the transcript shows that it was Biden who broached the subject.
Hur asked Biden where he kept papers related to various projects, including "your book"—a reference to Promise Me, Dad, his 2017 memoir about Beau's death. "This is, what, 2017, 2018, that area?" Biden asked. "Yes, sir," Hur confirmed. Then Biden launched into this halting and convoluted response, which seemed to confuse his Senate career with his time as vice president:
Remember, in this timeframe, my son is either been deployed or is dying, and so it was—and by the way, there were still a lot of people at the time when I got out of the Senate that were encouraging me to run in this period, except the president. I'm not—and not a mean thing to say. He just thought that she [Hillary Clinton] had a better shot of winning the presidency than I did. And so I hadn't, I hadn't, at this point even though I'm at Penn, I hadn't walked away from the idea that I may run for office again. But if I ran again, I'd be running for president. And so what was happening, though—what month did Beau die? My God, May 30th—
Cotton again chimed in: "2015." Biden still was not sure of the year: "Was it 2015 he had died?" An "unidentified male speaker" confirmed that "it was May of 2015," prompting Biden to reiterate that "it was 2015."
That exchange was immediately followed by confusion about another important date: "And what's happened in the meantime is that as—and Trump gets elected in November of 2017?" An "unidentified male speaker" corrected Biden: "2016." If so, Biden wondered, "why do I have 2017 here?" As White House Counsel Ed Siskel explained, "that's when you left office, January of 2017."
Biden then returned to the subject of Beau's death. "And in 2017, Beau had passed and—this is personal—[that was] the genesis of the book and the title Promise Me, Dad." He then recounted at length the story of how Beau's dying wish had inspired him to remain in politics and later seek the presidency. In other words, the transcript refutes Biden's subsequent claim that Hur and his staff had forced him to delve into a sensitive matter that "wasn't any of their damn business."
In addition to supplying "context" for the memory lapses cited by Hur, Savage notes "some minor seeming slips that went unmentioned in Mr. Hur's report." For example, Biden "needed to be nudged to recall the name of the federal agency that takes custody of official records—the National Archives—or that fax machine is the name of the device that transmits images of documents over phone lines."
Biden said one staff member "focused on taking the things that she thought that [the University of Delaware] might want, or that would go to the—what's it called? You know, the federal government." His lawyer Robert Bauer knew the answer: "The Archives." Referring to a piece of equipment in a home office, Biden started to ask, "What do you call it when they send these—" Siskel was on it: "Fax machine."
Again, those "minor seeming slips" were not included in Hur's report. As for the lapses he did mention, many Democrats thought their inclusion was gratuitous. But Hur was obligated to explain why he decided not to prosecute Biden, and that decision hinged on whether he could persuade a jury, beyond a reasonable doubt, that Biden "willfully" retained national defense information when he had "reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation." In concluding that he probably could not meet that test, Hur anticipated that jurors would be inclined to view Biden's retention of classified documents as accidental.
Biden "would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory," Hur wrote. "Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness."
Contrary to the way that Democrats have portrayed his report on Biden, Hur noted during Tuesday's hearing, "I did not 'exonerate' him; that word does not appear in the report." Rather, Hur concluded that there was ample room for reasonable doubt as to whether Biden "willfully" violated the law, including his cooperation in identifying and returning the documents after his lawyers found the first set as well as his generally plausible claims that he either did not know or could not recall how the material ended up in his possession.
In Trump's case, by contrast, such excuses can get him only so far. Even if his initial retention of more than 300 classified documents after he left the White House was unintentional, inadvertence does not explain his resistance to returning them, including his alleged defiance of a federal subpoena.
While "it is not our role to assess the criminal charges pending against Mr. Trump," Hur said in his report, there are "several material distinctions between Mr. Trump's case and Mr. Biden's." Unlike "the evidence involving Mr. Biden," Hur wrote, "the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it."
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]]>President Joe Biden came into office promising to get American troops out of "forever wars." Tonight, in his State of the Union address, he offered a vision of indefinite U.S. involvement in conflicts around the world.
In April 2021, speaking about the war in Afghanistan, the president railed against those who believe that "withdrawal would damage America's credibility and weaken America's influence in the world. I believe the exact opposite is true." Tonight, Biden attacked skeptics who "want us to walk away from our leadership in the world."
He began his speech with a plea for more U.S. military aid to Ukraine, arguing that "the free world is at risk, emboldening others who would do us harm to do what they wish." Later, Biden announced sweeping plans for U.S. involvement in Gaza.
While the U.S. military will build a new port in Gaza to deliver food to Palestinians—and, the president promised, "no U.S. boots will be on the ground"—the Biden administration will continue to arm the Israeli military campaign that Biden said "has taken a greater toll on innocent civilians than all previous wars in Gaza combined."
The Biden administration has transferred weapons to Israel at the American taxpayer's expense, and is providing targeting intelligence to the Israeli military. "Creating stability in the Middle East also means containing the threat posed by Iran," Biden added, touting his airstrikes on Yemen.
That air campaign has thrown a wrench into Yemen's peace talks—which, ironically, the Biden administration brokered a couple years before.
Biden positioned himself as a peace dove during the 2020 presidential debates, and one of his first major decisions in office was to go through with a long-planned U.S. withdrawal from Afghanistan. "It's time to end the forever war," the president announced in an April 2021 speech, rejecting an "approach where U.S. exit is tied to conditions on the ground."
"We have to have clear answers to the following questions: Just what conditions require to—be required to allow us to depart?" he asked in that speech. "By what means and how long would it take to achieve them, if they could be achieved at all? And at what additional cost in lives and treasure?"
Today, Biden answered those questions: The wars will continue for the foreseeable future.
The post Biden Touts More Forever Wars, Breaking His 2021 Promises appeared first on Reason.com.
]]>Having recently watched the new Mean Girls movie, the classic "stop trying to make fetch happen" line—said by main mean girl Regina George to a friend intent on injecting new slang into their lexicon—looms fresh in my mind. So that's the first thing I thought when I heard about yet another attempt to ban TikTok. At this point, attempts to ban TikTok are nearly as stale as Mean Girls references.
Politicians won't stop trying to make a TikTok ban happen, however.
We went here with Trump, who tried to ban TikTok via executive order in 2020. (The courts said no, and the Biden administration rescinded the order.) We went here with Montana, which passed a TikTok-banning law last year. (The court said no, at least preliminarily, though Montana is appealing.) We went here with multiple bills, including one in 2022 from Florida Republican Sen. Marco Rubio and one in 2023 from Virginia Democratic Sen. Mark Warner. (Both broad-reaching messes, and neither bill went anywhere after being introduced.)
Now, here we are again, with a bipartisan bill from Reps. Mike Gallagher (R–Wis.) and Raja Krishnamoorthi (D–Ill.), who head up the House of Representatives' Select Committee on the Chinese Communist Party. Committee Chair Gallagher and ranking Democrat Krishnamoorthi announced their bill on Tuesday, calling it the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA?).
For starters, the measure would ban U.S. app stores and web-hosting companies from letting people access TikTok, by declaring TikTok a "foreign adversary controlled application" and making the provision of such illegal.
That first bit is bad enough. It would choke off Americans' access to a popular media platform based on vague allegations of wrongdoing, in a move that offends both the First Amendment and due process.
But that's not all the Gallagher-Krishnamoorthi bill would do.
Like some of its predecessors, it takes broader aim at apps with ties to "foreign adversaries" (a group currently defined as North Korea, China, Russia, and Iran). To this effect, it gives the president power to declare a social media app off-limits if it's tied to an adversary.
Expanding presidential power to restrict Americans' access to tools for getting and disseminating information—what could go wrong?
The measure would obviously be ripe for abuse. For example: say another app like TikTok comes along, and it's proving a really useful campaigning tool for third-party and independent candidates. A Republican or Democratic president could then block access to it. Or say some app is becoming a popular place for organizing progressive protests, or criticizing conservatives, or some such thing. A certain notoriously thin-skinned politician who might regain power would likely be itching to shut it down—and under this bill, could.
Even short of administrations using the power for self-serving ends, we're still looking at a stunning situation. Remember, we're not talking about apps found to be violating U.S. laws in some particular way. We're talking the power to declare an app off limits because it has ties to a country we don't like (unless the app parts ways from its problematic parent company or leadership in a way the president deems fit).
That's the kind of stuff Russia and China do. It has no place in the United States.
The bill declares it unlawful "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application."
A "foreign adversary controlled application" is defined as 1) TikTok, ByteDance (TikTok's parent company), or a subsidiary or successor of either or 2) any app can that the president says is "controlled by a foreign adversary" and presents a national security threat. (The bill also specifies that if the bit simply declaring TikTok illegal doesn't hold up in court, the president can still declare TikTok illegal.)
Hold up, you might be thinking—controlled by a foreign adversary sounds scary. That goes beyond merely having ties to a foreign adversary (which is how I phrased it above). So let's look at the definition of "controlled by a foreign adversary."
The term "controlled by a foreign adversary" means, with respect to a covered company or other entity, that such company or other entity is—
(A) a foreign person that is domiciled in, is headquartered in, has its principal place of business in, or is organized under the laws of a foreign adversary country;
(B) an entity with respect to which a foreign person or combination of foreign persons described in subparagraph (A) directly or indirectly own at least a 20 percent stake; or
(C) a person subject to the direction or control of a foreign person or entity described in subparagraph (A) or (B).
As you can see, it would deem apps potentially off limits merely for being launched by a person or entity based in certain countries, partially owned by someone in those countries, or "subject to the direction" of someone based in one of those countries. That's nuts.
Say a Chinese citizen studying or working in the U.S. legally helps launch an app with four U.S. friends. That Chinese citizen eventually goes back to China and retains a 20 percent stake in what becomes a popular social media platform. Boom—the app can be declared illegal.
The "national security" threat language might seem limiting. But "national security" is actually a pretty vague concept, and we've seen it stretched, many times, to encompass whatever authorities want the right to regulate, outlaw, or surveil. Besides, it's the kind of thing ordinary folks can't really challenge because people in power can simply say that the reason why something is a national security threat is classified. So, in practice, I don't think the "national security threat" plank puts much of a limit on banning apps even tangentially tied to China, Russia, etc.
Also notable here: the bill bans enabling "the distribution, maintenance, or updating of a foreign adversary controlled application." Like last year's RESTRICT Act, this could implicate services—like virtual private networks (VPNs)—that help people download or access foreign apps forbidden by U.S. law.
Consider also that the bill would be targeting only large social media apps. Americans could still download other sorts of apps from companies with ties to foreign adversaries (which, if the concern is data privacy or surveillance, could be just as likely to pose a problem.) They could still use and view apps and websites tied to foreign adversaries when a product's "primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews" (products that, again, could just as easily present privacy concerns). And they could still access information—and propaganda—from foreign adversaries in other ways, including via foreign media websites and foreign entities that utilize U.S. social media to spread their content.
This selective targeting of social media apps—a type of technology intimately bound up with free speech rights—seems certain to render the measure constitutionally suspect.
The measure appears, in legal speak, to be both overbroad and underinclusive.
But the bill gives Gallagher, Krishnamoorthi, and the bill's other 18 co-sponsors a chance to grandstand about the evils of the Chinese Communist Party and the evils of TikTok. So here we are.
The bill is "expected to be taken up at an Energy and Commerce Committee hearing Thursday," Reuters reports. You can find the full text here.
"We're deeply disappointed that our leaders are once again attempting to trade our First Amendment rights for cheap political points during an election year," said Jenna Leventoff, senior policy counsel at the American Civil Liberties Union (ACLU). "Just because the bill sponsors claim that banning TikTok isn't about suppressing speech, there's no denying that it would do just that. We strongly urge legislators to vote no on this unconstitutional bill."
The post Dear Government: Stop Trying To Make TikTok Bans Happen appeared first on Reason.com.
]]>Massachusetts Air National Guardsman Jack Teixeira was sentenced to 16 years in prison after pleading guilty on Monday to leaking classified military documents to an online Discord chat group.
Teixeira had originally pleaded not guilty, but he admitted to "willful retention and transmission of national defense information" in a deal with prosecutors to avoid espionage charges. He will also be required to brief officials on the information he leaked during his work for the 102nd Intelligence Wing at Otis Air National Guard Base.
The sentence is harsher than that of other recent leakers. Daniel Hale, a U.S. Air Force intelligence analyst who exposed key details about the Obama administration's drone assassination program, was sentenced to 45 months in prison. Reality Winner, a National Security Agency contractor who leaked documents about alleged Russian hacking, got five years.
Unlike other historical leakers, Teixeira was not an intentional whistleblower. He originally sent documents to a raucous Discord server called Thug Shaker Central—the title was a reference to a porn film—with a few dozen gamers in it. The files went viral after other users reposted them elsewhere.
Teixeira would not be the first person to leak restricted documents to gamer friends. So many people have posted sensitive weapons data to the War Thunder video game forum that it has become a meme: "0 days since classified document leaks."
But the Discord leak wasn't a mere attempt to impress friends or a joke. Teixeira, who has been described as "antiwar" and "libertarian," appeared to have some qualms about U.S. foreign policy and wanted to talk through these issues with his friends.
"It wasn't really 'pushing these to teenagers for clout,'" Vahki, a pseudonymous member of the chatroom where Teixeira posted the documents, told CNN. "It was more like showing these to friends, so we won't be shocked by the news cycles. And we know what's going on with our tax dollars."
At the time of the indictment, U.S. Attorney General Merrick Garland stated that Teixeira leaked "information that reasonably could be expected to cause exceptionally grave damage to national security if shared…In doing so, he is alleged to have violated U.S. law and endangered our national security."
Yet the leaks also provided valuable insights into U.S. foreign policy, especially the war in Ukraine. Based on the documents, journalists were able to learn more about U.S. advice about Ukrainian strategy, Ukraine's ammunition shortages, attempts by Russia to obtain weapons and other support from U.S. allies, and casualties on both sides of the war.
The leak embarrassed U.S. friends and foes alike. Russian government spokesman Dmitry Peskov, stung by reports that Russia was secretly buying rockets from U.S. ally Egypt, called the documents a "hoax."
Perhaps most embarrassingly, the documents revealed the extent of Washington's eavesdropping on its partners, from South Korea to Israel. Rather than threatening American lives, Teixeira's real crime may have been humiliating American diplomats.
The post National Guardsman Gets 16 Years for Leaking Pentagon Docs Over Discord appeared first on Reason.com.
]]>Active-duty U.S. Airman Aaron Bushnell set himself on fire in front of the Israeli embassy in Washington, D.C., on Sunday. While Bushnell lay dying on the ground, engulfed by flames, officers from the U.S. Secret Service aggressively tried to give him orders and pointed a weapon at him.
"I don't need guns," another agent shouted in frustration. "I need fire extinguishers."
Bushnell's act, which eventually killed him, was meant to protest U.S. support for Israel's war effort in Gaza. (The Air Force is currently transporting weapons and providing satellite intelligence for the Israeli military.) Bushnell, a military I.T. engineer, declared that he would "no longer be complicit in genocide" and shouted "Free Palestine."
But video of the event also showcased the disorderly, confused, and aggressive law enforcement response. Bushnell livestreamed his self-immolation on Twitch. The livestreaming platform quickly removed the video, but independent journalist Talia Jane obtained and shared a censored copy of the video online a few hours later.
Even the sanitized clip, which includes disturbing audio of Bushnell's screams, demonstrates how painful the act was. And it also shows the chaotic response by first responders, who treated Bushnell as both a victim in need of saving and a deadly threat.
As Bushnell burst into flames and began screaming in pain, a voice off-screen aggressively ordered Bushnell to get "on the ground" over and over again. Then two Secret Service agents ran into the frame, one of them spraying Bushnell with a fire extinguisher, another pointing his gun at the burning man.
The agent with the fire extinguisher began to argue with his colleagues off-screen. He wanted more fire extinguishers for Bushnell, who was still on fire.
"The armed officer was ensuring the safety of the two Secret Service officers who were working to extinguish the fire and render aid to the individual," the Secret Service said in a statement to Reason.
Several more agents showed up with fire extinguishers, finally putting out the blaze nearly two agonizing minutes after it started. Bushnell was brought to a local hospital and pronounced dead several hours later, according to a police report obtained by Newsweek.
The video sparked an online debate about the Secret Service's response.
"Whatever your view on self-immolation, nothing betrays the monstrousness of our political culture like that moment: from the local to the federal level, the state meets every challenge with an opportunity to kill," wrote New York local historian Asad Dandia, who successfully sued the NYPD for illegally surveilling him a decade ago, in a social media post.
There is a long tradition of self-immolation in antiwar protests around the world, dating back to the U.S. war in Vietnam and the Soviet invasion of Czechoslovakia in the 1960s. Several months ago, an unnamed woman also lit herself on fire outside the Israeli consulate in Atlanta while carrying a Palestinian flag, an act that police described as "an act of extreme political protest."
U.S. Secret Service Communications Chief Anthony Guglielmi insisted in a statement to Reason that "this situation was unpredictable and occurred rapidly. In that instant, the level of threat to the public and the embassy was unknown, and our officers acted swiftly and professionally." The video shows that the situation did unfold rapidly, but viewers can judge for themselves just how necessary the guns were.
The post Why Did Cops Point a Gun at a Burning Gaza Protester? appeared first on Reason.com.
]]>In four motions filed late last week in the U.S. District Court for the Southern District of Florida, Donald Trump's lawyers seek dismissal of 40 felony charges based on his retention of classified documents after leaving the White House in January 2021. They argue that his decision to keep the documents is shielded by "absolute" presidential immunity for "official acts," that he had complete discretion to designate records as personal rather than presidential, and that the charges related to mishandling "national defense information" are based on an "unconstitutionally vague" statute. They also argue that Special Counsel Jack Smith, who obtained the indictment, was improperly appointed, making all of the charges invalid.
The motion based on presidential immunity, which seeks dismissal of the 32 counts alleging unlawful retention of specific classified documents, rehashes the argument that a D.C. Circuit panel unanimously rejected this month in the federal case based on Trump's attempts to remain in office after he lost the 2020 presidential election. "The D.C. Circuit's analysis is not persuasive," Trump's lawyers write, "and President Trump is pursuing further review of that erroneous decision, including en banc review if allowed, and review in the U.S. Supreme Court if necessary." They say U.S. District Judge Aileen M. Cannon, who is overseeing the documents case in Florida, "should not follow the D.C. Circuit's non-binding, poorly reasoned decision."
As Trump sees it, the separation of powers bars federal courts from sitting in judgment of a former president's "official acts," whether in the context of a civil case or in the context of a criminal prosecution. The D.C. Circuit, including Republican appointee Karen L. Henderson, was troubled by the implications of that position, which would allow presidents to commit grave crimes, including assassination of political opponents, without being held accountable unless they were impeached and removed from office based on the same conduct.
Trump's lawyers read the Supreme Court's 1803 decision in Marbury v. Madison as prohibiting judicial review of any presidential act. But as the D.C. Circuit emphasized, federal courts historically have passed judgment on the legality of presidential decisions, most famously in the 1952 case Youngstown Sheet & Tube Co. v. Sawyer. In that case, the appeals court noted, the Supreme Court "exercised its cognizance over Presidential action to dramatic effect" by holding that "President Harry Truman's executive order seizing control of most of the country's steel mills exceeded his constitutional and statutory authority and was therefore invalid."
Strictly speaking, however, Youngstown dealt with an order issued by the secretary of commerce rather than the president himself. "To be sure," Trump's lawyers say, federal courts "sometimes review the validity of the official acts of subordinate executive officials below the president, and such review may reflect indirectly on the lawfulness of the president's own acts or directives. But the authority of judicial review of the official acts of subordinate officers has never been held to extend to the official acts of the president himself."
Marbury drew a distinction between "discretionary" and "ministerial" acts. Regarding the first category, Chief Justice John Marshall said in the majority opinion, "the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." In that situation, he said, "the subjects are political and the decision of the executive is conclusive," meaning it "can never be examinable by the courts."
But that is not true, Marshall added, "when the legislature proceeds to impose on [an executive official] other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts." Then "he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others." In those circumstances, he is acting as a "ministerial officer compellable to do his duty, and if he refuses, is liable to indictment."
Although Trump's lawyers do not explicitly address that distinction, they argue that the counts charging him with illegally retaining 32 listed classified documents are based on 1) presidential decisions that 2) fell within the "discretionary" category. Both of those conclusions seem dubious.
The indictment says Trump "caused scores of boxes, many of which contained classified documents, to be transported" from the White House to Mar-a-Lago, his golf resort in Palm Beach. Trump's lawyers say the indictment "makes clear that this decision and the related transportation of records occurred while President Trump was still in office."
As Trump's lawyers see it, in other words, the first 32 counts are all based on actions that he took as president. That interpretation seems problematic based on the text of the statute and the wording of the indictment.
Trump is charged with violating 18 USC 793(e), which applies to someone who has "unauthorized possession" of "information relating to the national defense" and "willfully retains" it when he "has reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation." The indictment says Trump "did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them."
Retaining the documents and failing to deliver them are distinct from the initial act of transportation. While the latter may have happened while Trump was still in office, the former included his conduct during the year and a half that elapsed from the end of his term until an FBI search of Mar-a-Lago discovered the 32 documents, along with 70 or so others marked as classified, on August 8, 2022. During that time, Trump returned some classified documents but kept others, even after he claimed to comply with a federal subpoena demanding them. But for that continuing resistance, the FBI would not have obtained a search warrant and Trump would not be facing these charges.
Why does Trump think the initial act of bringing the documents to Mar-a-Lago was within his discretion as president? Under the Presidential Records Act, he argues in another motion, he had complete authority to classify documents as personal, meaning he could keep them rather than turn them over to the National Archives. His possession of those documents therefore was not "unauthorized," as required for a conviction under Section 793(e). And since the FBI's investigation was not legally justified, Trump's lawyers say, the other eight counts, including conspiracy to obstruct justice, concealing records, and lying to federal investigators, also should be dismissed.
That reading of the Presidential Records Act is counterintuitive given its motivation and text. The impetus for the law was President Richard Nixon's assertion of the very authority that Trump is now claiming. Rather than allow a president to destroy or retain official documents at will, Congress declared that "the United States shall reserve and retain complete ownership, possession, and control of Presidential records."
The law defines presidential records as "documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President's immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." That term excludes "personal records," defined as "all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President."
As Trump reads the Presidential Records Act, however, it "conferred unreviewable discretion on President Trump to designate the records at issue as personal." That interpretation would, on its face, render the statute a nullity. If a president has total discretion to decide that a document is "of a purely private or nonpublic character," regardless of its content, the situation that Congress sought to rectify would be unchanged in practice.
Trump also argues that Section 793(e), as applied to him, violates his Fifth Amendment right to due process because it is so vague that it does not "give people of common intelligence fair notice of what the law demands of them." In particular, his lawyers say, the phrases "unauthorized possession," "relating to the national defense," and "entitled to receive" have no clear meaning.
Finally, Trump says the indictment is invalid because "the Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States." Smith therefore "lacks the authority to prosecute this action."
The Appointments Clause empowers the president to "appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Because there is "no statute establishing the Office of Special Counsel," Trump's motion says, "Smith's appointment is invalid and any prosecutorial power he seeks to wield is ultra vires"—i.e., without legal authority.
This question, the motion says, is "an issue of first impression in the Eleventh Circuit," which includes Florida. But in 2019, the D.C. Circuit rejected the argument that Trump is deploying here, holding that Special Counsel Robert Mueller was an "inferior" rather than "principal" officer, meaning that Acting Attorney General Rod Rosenstein had the authority to appoint him.
Trump is asking Cannon to approve "discovery and pretrial hearings on factual disputes" relevant to his motions. That is apt to delay the trial in this case, which had been scheduled to begin on May 20.
The Section 793(e) charges require the government to show that the 32 documents listed in the indictment contained information that could compromise national security, a task complicated by their classified status. But the obstruction-related counts, which include allegations that Trump defied the federal subpoena, deliberately concealed classified records, and tried to cover up his cover-up by instructing his underlings to delete incriminating surveillance camera footage, may be the strongest charges that he faces across four criminal cases. Assuming the government can prove the facts it alleges in the indictment, it seems pretty clear that Trump is guilty of multiple felonies, including half a dozen that are punishable by up to 20 years in prison.
The post 4 Reasons Trump Says a Judge Should Dismiss Charges in the Classified Documents Case appeared first on Reason.com.
]]>WikiLeaks founder Julian Assange has been imprisoned in London for nearly five years, pending extradition to the United States so he can be prosecuted for violating the Espionage Act by publishing classified information. Since that amount of time behind bars is about the same as the four-to-six-year prison term that Justice Department lawyers have said Assange would be likely to serve if convicted, you might think the Biden administration would be ready to reconsider this case, especially since it poses an alarming threat to freedom of the press. Instead, the U.S. government's lawyers are back in London for yet another hearing, which Assange's attorneys describe as a last-ditch attempt to block his extradition.
Recognizing the First Amendment implications, the Obama administration declined to prosecute Assange for obtaining and disclosing confidential State Department cables and military files leaked by former Army intelligence analyst Chelsea Manning in 2010. After all, leading news organizations in the United States and around the world had published stories based on the same documents, and those acts of journalism likewise could be construed as felonies once this precedent was established. So could the routine practices of reporters who cover national security, which commonly involves divulging information that the government prefers to keep secret.
Despite those concerns, the Trump administration decided that Assange should be locked up for doing things that The New York Times et al. do on a regular basis. All but one of the 17 counts in Assange's latest federal indictment relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Theoretically, Assange could face 160 years in prison for those counts alone, although the government's lawyers say it probably would be more like the amount of time he already has served in the United Kingdom. Manning herself—who, unlike Assange, violated the terms of her government employment—received a 35-year sentence but was released after seven years thanks to Barack Obama's commutation.
"Some say that Assange is a journalist and that he should be immune from prosecution for these actions," John Demers, then the head of the Justice Department's National Security Division, told reporters after the Assange indictment was announced in May 2019. "The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department's policy to target them for reporting." There is no need to worry, Demers suggested, because Assange is "no journalist."
This line of argument misconstrues the "freedom…of the press" guaranteed by the First Amendment, which applies to mass communication generally, not just the speech of people whom the government deigns to recognize as journalists. Demers' assurance is similar to the reasoning that the U.S. Court of Appeals for the 5th Circuit recently applied in counterintuitively concluding that treating journalism as a crime is not "obviously unconstitutional."
That case involved Priscilla Villarreal, a Laredo, Texas, gadfly and citizen journalist who was arrested in 2017 for violating Section 39.06(c) of the Texas Penal Code. Under that previously obscure law, a person who "solicits or receives" information that "has not been made public" from a government official "with intent to obtain a benefit" commits a third-degree felony, punishable by two to 10 years in prison.
Texas defines "benefit" as "anything reasonably regarded as economic gain or advantage." According to the arrest affidavits, the "benefit" that Villarreal sought was a boost in Facebook traffic. Section 39.06(c) defines "information that has not been made public" as "any information to which the public does not generally have access" that is also "prohibited from disclosure" under the Texas Public Information Act. The arrest affidavits did not address the latter requirement at all.
Like the Espionage Act, Section 39.06(c) purportedly criminalizes common reporting practices—in this case, obtaining information about a public suicide and a fatal car accident from a "backchannel source" at the local police department. Writing for the 5th Circuit majority in Villarreal v. Laredo, Judge Edith Jones did not try to hide her disdain for Villarreal, an independent, uncredentialed journalist who files her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.
"Villarreal and others portray her as a martyr for the sake of journalism," Jones wrote. "That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others' tragedies to propel her reputation and career."
Although Jones implies that Villarreal's arrest was prompted by concern for "the families of decedents," Villarreal plausibly argued that it was actually punishment for her outspoken criticism of local law enforcement agencies. In any case, there is no First Amendment exception for reporting that might offend or disturb people. And Jones' characterization of Villarreal's work as "capitaliz[ing] on others' tragedies to propel her reputation and career" is an apt, if cynical, description of what many journalists do, even when they work for "mainstream, legitimate media outlets." Jones apparently is unfamiliar with the bread and butter of local news organizations and has never heard the expression, "If it bleeds, it leads."
The seven dissenting judges saw the situation differently. "If the First Amendment means anything," Judge James C. Ho wrote in a dissent joined by five of his colleagues, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment." Judge James E. Graves Jr. likewise complained that "the majority opinion will permit government officials to retaliate against speech while hiding behind cherry-picked state statutes."
Judge Stephen A. Higginson noted that Thomas Paine, who wrote "the pro-independence pamphlet that historian Gordon Wood describes as 'the most incendiary and popular pamphlet of the entire revolutionary era,'" was, like Villarreal, a "citizen-journalist." Upholding "the text of the Constitution, as well as the values and history that it reflects," he said, "the Supreme Court guarantees the First Amendment right of engaged citizen-journalists, like Paine, to interrogate the government." Jones, by contrast, presumably would view Paine as disreputable, since he did not work for a "mainstream, legitimate media outlet."
Assange's critics, including some professional journalists, have proposed a similar distinction, arguing that he does not deserve the First Amendment's protection because he is not a "real" journalist. But whatever you might think of Assange's opinions, his tactics, or the care he exercised in publishing classified material, that distinction is not grounded in the Constitution and will not hold in practice.
The editors and publishers of The New York Times, The Guardian, Le Monde, Der Spiegel, and El País recognized as much in 2022, when they urged the Justice Department to drop the case against Assange. In ignoring that advice, the Biden administration seems bent on establishing a dangerous precedent that replaces the First Amendment's guarantee with the whims of prosecutors.
The post The Biden Administration Is Bent on Setting an Alarming Precedent by Prosecuting Julian Assange appeared first on Reason.com.
]]>The Guardian (Miranda Bryant) reports:
Finland plans to open more than 300 new shooting ranges to encourage more citizens to take up the hobby in the interest of national defence.
It is hoped that shooting in the Nordic country—which last year became Nato's newest member and which shares a 830-mile (1,330km) border with Russia—could become as popular as football or ice hockey.
Ah, the elephant bear in the room, which in this instance the article does talk about.
There are about 670 shooting ranges in Finland, down from about 2,000 at the turn of the century. By 2030, the government plans to increase the number to about 1,000….
Since Russia's invasion of Ukraine, the popularity of voluntary training courses aimed at teaching reservists and civilians how to defend Finland has doubled. There has also been a big increase in the number of Finns applying for gun licences….
This of course puts one in mind of The White Death. Keep up the spirit, Finns.
The post Make Finland the Land of Shooting Badassery Again appeared first on Reason.com.
]]>If Joe Biden will not be prosecuted for mishandling classified material, why does Donald Trump face 40 felony charges based on conduct that looks broadly similar? It is a question that Trump's supporters were bound to ask after Special Counsel Robert Hur, formerly a Trump-appointed U.S. attorney, released his findings about Biden last Thursday. But Hur's report includes important details that plausibly explain the contrasting outcomes in these two cases. Although Biden's embarrassingly hypocritical lapses belie his avowed concern about safeguarding material that could compromise national security, the evidence of criminal intent is much stronger in Trump's case.
When Trump left the White House in January 2021, he took thousands of presidential records, including more than 300 marked as classified. The superseding indictment released by Special Counsel Jack Smith last July lists 32 of the latter, each of which is the basis for a charge under 18 USC 793(e). That provision applies to someone who "willfully retains" national defense information when he "has reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation."
Hur's report focuses on two types of records that Biden retained after serving as vice president: 1) "documents about military and foreign policy in Afghanistan" that were marked as classified and 2) "notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods." FBI agents found both types of material in "the garage, offices, and basement den" of Biden's home in Wilmington, Delaware.
"Contemporaneous evidence suggests that when Mr. Biden left office in 2017, he believed he was allowed to keep the notebooks in his home," Hur writes. Biden took the same position in an interview with Hur's office, saying "his notebooks are 'my property' and that 'every president before me has done the exact same thing,' that is, kept handwritten classified materials after leaving office." In particular, he cited "the diaries that President Reagan kept in his private home after leaving office, noting that they included classified information."
Hur does not agree with Biden's understanding of the law. "If this is what Mr. Biden thought, we believe he was mistaken about what the law permits," he says. But he adds that Biden's position "finds some support in historical practice." The "clearest example," he says, is "President Reagan, who left the White House in 1989 with eight years' worth of handwritten diaries, which he appears to have kept at his California home even though they contained Top Secret information."
Yet as far as Hur could tell, neither the Justice Department nor any other federal agency took steps to "investigate Mr. Reagan for mishandling classified information or to retrieve or secure his diaries." Hur concludes that "most jurors would likely find evidence of this precedent and Mr. Biden's claimed reliance on it, which we expect would be admitted at trial, to be compelling evidence that Mr. Biden did not act willfully."
What about the Afghanistan documents that were marked as classified? The strongest evidence of Biden's intent regarding them is a remark he made during a recorded conversation with his ghostwriter in February 2017, the month after he left office. Discussing a 2009 memo he had written in opposition to a troop surge in Afghanistan, Biden noted that he had "just found all the classified stuff downstairs." At the time, Biden was renting a home in Virginia, which he kept until 2019. Assuming he was talking about the Afghanistan documents that the FBI later found in Wilmington, which is likely but not certain, that comment shows Biden knew the material was classified. But Hur notes defenses Biden could raise against a charge based on that admission.
"Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after," Hur writes. "When Mr. Biden told his ghostwriter about finding 'all the classified stuff downstairs,' his tone was matter-of-fact. For a person who had viewed classified documents nearly every day for eight years as vice president, including regularly in his home, finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event. Notably, the classified Afghanistan documents did not come up again in Mr. Biden's dozens of hours of recorded conversations with the ghostwriter, or in his book. And the place where the Afghanistan documents were eventually found in Mr. Biden's Delaware garage—in a badly damaged box surrounded by household detritus—suggests the documents might have been forgotten."
That explanation, Hur says, is reinforced by the fact that Biden's memory "was significantly limited, both during his recorded interviews with the ghostwriter in 2017" and "in his interview with our office in 2023." Hur alludes to Biden's difficulty in remembering things several times, saying a jury might view him as "a sympathetic, well-meaning, elderly man with a poor memory." Although that characterization is politically damaging, it would be extenuating in the context of a charge under 18 USC 793(e).
Hur notes that Biden's "cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully—that is, with intent to break the law—as the statute requires." The documents "could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president, as were other classified documents recovered during our investigation."
One of Biden's notebooks, marked as "Af/Pak 1," contained his handwritten 2009 memo on the troop surge. Biden "initially said he was not aware that he had kept the Thanksgiving memo after his vice presidency" but later conceded that "I guess I wanted to hang onto it for posterity's sake." Two other notebooks contained documents marked as classified, but Hur concludes that "the evidence does not suggest either that Mr. Biden retained the classified documents inside them willfully, or that the documents contain national defense information."
Hur also discusses "nine documents with classification markings" that were found in Biden's office at the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington, D.C. At the same location, the FBI also found "a set of handwritten notes" that were "potentially classified."
Hur says "there is insufficient evidence to prove beyond a reasonable doubt that Mr. Biden intentionally retained the classified documents" about the Iran nuclear deal that were found in an "eyes only" envelope. Rather, "the evidence supports an innocent explanation for the unauthorized retention of those documents." Biden and his staff "appear to have eventually forgotten about" that envelope, which was "unwittingly moved…out of the West Wing at the end of the administration." Hur likewise found "insufficient evidence to support charging Mr. Biden for the retention of the other marked classified documents recovered from the Penn Biden Center."
Finally, Hur discusses "just over a dozen" classified documents that were found at the University of Delaware among Biden's papers from his time as a senator. "Almost all of these documents predate the Senate's establishment of rules for the tracking and handling of classified information," Hur writes. "The evidence does not suggest that Mr. Biden willfully retained these documents. Rather, they appear to have been included in his large collection of Senate papers by mistake."
In addition to Biden's notebooks, Hur lists fewer than 100 "recovered documents" that either were marked as classified or included classified information. That represents about a third of the classified documents that the FBI says Trump took with him when he left the White House. While Biden's documents span decades, Trump's trove came from his single term as president. But when it comes to criminal liability, the raw numbers are less important than how the retention of sensitive material came to light and how Biden and Trump responded to that discovery.
"With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration," Hur notes. "The exception is former President Trump." And while "it is not our role to assess the criminal charges pending against Mr. Trump," he says, there are "several material distinctions between Mr. Trump's case and Mr. Biden's."
Notably, those "material distinctions" have nothing to do with Trump's authority as president to declassify documents—a point frequently raised by his defenders. Unlike Trump, they say, Biden had no such authority as vice president. But whatever you make of Trump's claim that the documents he took were "automatically declassified," whether through a "standing order" or simply "by thinking about it," it is a red herring in the context of charges under 18 USC 793(e), which does not refer to classification at all. The relevant questions under that provision are whether the information in those documents was potentially damaging to national security, whether Trump should have recognized that, and whether he nevertheless "willfully" retained them.
In any case, the charges against Trump go beyond that statute. Unlike "the evidence involving Mr. Biden," Hur writes, "the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it."
That alleged conduct underlies eight additional felony charges against Trump. "In contrast," Hur writes, "Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation." Trump's alleged defiance and deceit, in short, distinguish his conduct from Biden's: They suggest that Trump retained national defense information "willfully," as required for a conviction under 18 USC 793(e), and that he committed additional crimes to cover up the underlying offense.
Notwithstanding these significant differences, there is no disputing that Biden's carelessness blatantly contradicts his criticism of Trump's "totally irresponsible" behavior. "Asked about reports that former President Trump had kept classified documents at his own home," Hur notes, "Mr. Biden wondered how 'anyone could be that irresponsible' and voiced concern about '[w]hat data was in there that may compromise sources and methods.'"
Biden made those comments in a 60 Minutes interview about a month after the FBI searched Mar-a-Lago, where it found more than 100 classified documents that Trump had kept after assuring the Justice Department that he had returned everything in that category. Two months later, six days before the midterm elections, Biden's lawyers found "a small number of documents with classified markings" at his think tank office. The White House did not acknowledge that discovery until the following January, and thus began a series of revelations that expanded the number of searched locations and the number of retrieved documents.
"We found a handful of documents were filed in the wrong place," Biden said in January 2023, taking refuge in the passive voice. "I think you're going to find there's nothing there." The next day, the FBI found additional classified documents at his house.
Hur plausibly concluded that criminal charges against Biden were not appropriate because there was insufficient evidence that he "willfully" retained documents he was not supposed to have. But that does not let Biden off the hook for repeatedly violating the standard of care that he himself insists is essential to protecting national security.
The post Trump's Alleged Defiance and Deceit Distinguish His Handling of Secrets From Biden's appeared first on Reason.com.
]]>Almost lost in recent hubbub over claims that the Swift–Kelce romance is a CIA psyop, the likelihood the leading presidential candidates are mental turnips, and the tussle between the federal government and Texas over border control is the fact that the feds are spying on us and want authorization to continue snooping. Debate last year over renewing Section 702 of the Foreign Intelligence Surveillance Act held Congress and the president to a brief extension before the holidays. That leaves legislators arguing the law's fate before an April deadline, with none of the controversy over spying and privacy yet settled.
"I…thank the Congress for its extension of title VII of the Foreign Intelligence Surveillance Act," read a White House statement on President Joe Biden's December 22 signing of the National Defense Authorization Act. "My Administration looks forward to working with the Congress on the reauthorization of this vital national security authority as soon as possible in the new year. While I am pleased to support the critical objectives of the NDAA, I note that certain provisions of the Act raise concerns."
"Raise concerns" is putting it mildly. Congress did no more than kick the can on extending sunsetting FISA powers to April 19 because the surveillance authorized by the law is deeply intrusive and worries civil libertarians in the ranks of Democrats and Republicans, in both the legislative and executive branches, and among the public at large. Those "concerns" may, if we're lucky, torpedo the whole law.
Nominally, Section 702 of the Foreign Intelligence Surveillance Act (FISA) "enables the Intelligence Community (IC) to collect, analyze, and appropriately share foreign intelligence information about national security threats," according to the Office of the Director of National Intelligence. But, like so many powers government officials find useful, it's been applied far beyond its original justification over the years, including to the communications of Americans here at home.
Last April and July, the Republican-controlled House Judiciary Committee held hearings to examine "the FBI's abuses of its Foreign Intelligence Surveillance Act (FISA) authorities, discuss the FBI's failures to implement meaningful reforms to prevent its abuses, and address the broad issue of warrantless mass surveillance on American citizens."
A week after the second hearing, declassified documents offered glimpses of how FISA is misused, including improper FBI surveillance of a U.S. senator, a state lawmaker, and a judge.
"The revelation that 702 is used against 'foreign governments and related entities' directly impacts Americans' privacy, as American journalists, businesspeople, students and others all have legitimate reason to communicate with foreign governments," Sen. Ron Wyden (D–Ore.) responded. "The fact they can be swept up in 702 collection further highlights the need for reforms to protect their privacy."
Then, in September, the U.S. government's Privacy and Civil Liberties Oversight Board (PCLOB) weighed in with a report raising concerns about the use and abuse of FISA's Section 702.
"The Board finds that Section 702 poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries" in which multiple search terms are run through the system as part of a single action, according to the board's Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act. "Section 702's targeting presents a number of privacy risks and harms by authorizing surveillance of a large number of targets, providing only programmatic review of a surveillance program, allowing extensive incidental collection, and causing inadvertent collection."
How significant are those risks? The FBI has searched its gathered information millions of times for information on "U.S. persons" including citizens, residents, and businesses. "For example, in the twelve-month period ending November 30, 2021, FBI reported 3,394,053 U.S. person queries consisting of 2,964,643 unique query terms, approximately 1.9 million of which were associated with a single cyber threat," noted the PCLOB.
While FISA is supposed to be directed at foreign threats and only incidentally implicate Americans, some of the queries found by the report were explicitly domestic in nature, including those "related to instances of civil unrest and protests." The PCLOB, though divided, called for reforms.
The White House National Security Council promptly rejected suggestions that searches about U.S. persons should require court approval, claiming such a safeguard would be "operationally unworkable." That just added to concerns. After all, if people repeatedly point out abuses of a foreign intelligence law to conduct domestic snooping, and officials deny that's a problem worth addressing, then the existence of the law and the powers it authorizes should be reconsidered.
"Section 702 is set to expire at the end of 2023. We call on Congress to significantly reform the law, or allow it to sunset," urged the ACLU.
"Congress must end or radically change the unconstitutional spying program enabled by Section 702 of the Foreign Intelligence Surveillance Act (FISA)," agrees the Electronic Frontier Foundation (EFF).
Promising vehicles for reforming the surveillance law are found in the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act, both of which enjoy bipartisan support in Congress.
"The Government Surveillance Reform Act would prohibit warrantless queries of information collected under Section 702 to find communications or certain information of or about U.S. persons," explains EFF. The group says the Protect Liberty and End Warrantless Act does much the same as well as "prohibit law enforcement from purchasing Americans' data that they would otherwise need a warrant to obtain" and it also limits surveillance authority renewal to three years.
"A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources," objected FBI Director Christopher Wray when he addressed the Senate Intelligence Committee in December.
Wray may not have made quite the point that he intended. A de facto ban on abusive domestic surveillance? That sounds like a good start for reforming a law that's been put to bad use.
The post Controversial Surveillance Law Up for Renewal (Again) in April appeared first on Reason.com.
]]>In a thrilling address at the World Economic Forum, Javier Milei, President of Argentina, presented a robust defense of capitalism and a critical examination of all forms of collectivism. His speech, rich in historical context and economic analysis, offers some vital lessons that are particularly relevant for today's globalized economy. Sadly, these lessons have long been ignored by American politicians on the right and left, whether in Washington or on the campaign trail.
Milei began with a stark warning about the dangers of collectivist policies based on Argentina's own, sometimes sad, history. Once a beacon of prosperity under a capitalist framework, Argentina's shift toward collectivism over the past century caused its prosperity to plummet from a leading global position to a much lower rank. Its story illustrates how losing sight of free market principles can result in economic stagnation or even absolute poverty.
This point is crucial. Milei reminds us that no matter how noble the intentions are behind collectivist policies, whether it's fighting climate change, obtaining justice for all, or enhancing national security—and whether they are pushed, as Milei says, by "communist, fascist, socialist, social democrats, national socialists, Christian democrats, neo-Keynesians, progressives, populists, nationalists, or globalists"—attempting to solve problems in this way harms the very people who are meant to be helped.
Now, readers may think this historical lesson is irrelevant for the United States. After all, Argentina has been an economic basket case, and America in 2024 is still one of the wealthiest nations in the world. Anyone who has taken, as I have, the naturalization test also knows that the expected answer to "what is the economic system of the United States?" is "free market." That one made me smile.
Unfortunately, Milei's warning is relevant to us. While much of our economy remains relatively free, every part of it is subjected to an increasingly intrusive regulatory regime and ineffective, burdensome, and unfair tax code. Furthermore, while Democrats and Republicans fight constantly, their economic policies are strikingly, similarly, and increasingly collectivist.
Both parties have recently become so populist that they could justly be described as modern Peronists who believe that politicians, better than people operating in a free market, can direct investment and determine which industries should succeed and which should fail. It's no exaggeration to say that America has traveled a significant distance down the "road to serfdom" that Milei warns about.
Milei, an economist by training, doesn't only criticize collectivism; he offers a compelling, positive case for capitalism. By tracing global economic history, he highlights a pivotal moment: the advent of capitalism and the Industrial Revolution. This period marked a departure from centuries of economic stagnation, ushering in unprecedented growth in global per capita gross domestic product (GDP) and a significant reduction in poverty.
The data offered by Milei is striking. The transformation from a near-zero growth world to a rapid economic expansion under capitalism testifies not just to the free market's efficiency but to its capacity to subsequently improve people's lives on a massive scale. The fact that poverty and inequality still exist makes Milei's insights more pertinent, not less. They suggest that the path lies not in abandoning capitalism but in more effectively harnessing its immense potential.
Even better: Economic growth isn't just an engine of wealth production but also of peace and tolerance. More of that, please.
Milei's perspective challenges the growing worldwide trend of increased government involvement in economic affairs. He advocates for limited government intervention, where economic freedom, respect for private property, and market mechanisms are paramount. It's a reminder that the road to prosperity is paved with policies that empower individuals and businesses alike, fostering an environment in which innovation, entrepreneurship, and opportunities for all kinds of people thrive.
Better yet, Milei ended his memorable speech with a poignant "Long live freedom, dammit." It's a rallying cry for our times, a reminder of the value of liberty, and a call to defend it against encroaching forces. As we navigate the complexities of the 21st century, his words serve as a beacon, guiding us towards a future where freedom is not just cherished in the abstract but actively protected and nurtured in practice.
Don't think of Javier Milei's address in Davos as a historical analysis or economic lecture; it's a call to action. Let's reevaluate our approach to economic policy, remember and recognize the proven strengths of capitalism, and be wary of the inescapable pitfalls and proven failures of collectivism. Embracing economic freedom while ensuring responsible governance is surely the key to sustainable prosperity and continued global progress.
COPYRIGHT 2024 CREATORS.COM.
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]]>The political landscape is often portrayed as deeply polarized. The two sides, it is said, can't agree on anything. Even worse, if one side supports a position, that's reason enough for the other to oppose it. While this picture is largely true for cultural issues, the rise of populism on the right is making some of the two parties' economic policies remarkably similar. That's bad news for Americans.
In a new piece for The Unpopulist, Rachel Kleinfeld reminds us that until recently it was relatively straightforward to categorize economic and political systems. Economically, they ranged from left-wing to right-wing, while politically, they varied from authoritarian to democratic. Most American businesses could easily stake out their position. They generally favored right-leaning economic policies—relatively free markets—which included business-friendly regulations and management-centric approaches.
American businesses didn't have to worry much about where the country fell on the authoritarian versus democratic spectrum. While cronyism was always a problem, democratic values remained front and center. That was good for businesses since, as Kleinfeld notes, they have tended to prosper "most under classically liberal democratic systems that upheld the rule of law and inalienable rights—including property rights."
The recent emergence of right-wing populism has disrupted this traditional classification. Kleinfeld writes that today, "even supposedly right-wing populists exploit distrust, pessimism, and anger to make the case that government should wield a heavy—and often retaliatory—hand in markets." She is right. Let's examine a few examples where a shift on the right means they now share traditionally left-wing positions on these issues.
Both the populist right and left are protectionist when it comes to trade. While the right advocates for protectionism to support national security, preserve manufacturing, and maintain national sovereignty, the left supports tariffs and other trade restraints to protect workers' rights, prevent exploitation in developing countries, and reduce environmental impact. Both sides, if for different reasons, favor trade barriers and are skeptical of free-trade agreements. The best evidence is that President Joe Biden has retained most of former President Donald Trump's tariffs.
Similarly, under the misguided excuse of strengthening our economy, both sides now practice an industrial policy that dispenses massive subsidies, tax credits, and other government-granted corporate privileges. For instance, the Biden administration's $52 billion in federal tax breaks and subsidies through the CHIPS Act to prop up the semiconductor industry, including reports of $40 billion—77 percent of the funds—benefiting giant companies like Intel, GlobalFoundries, Samsung, and Taiwan Semiconductor Manufacturing Corp., was passed in a bipartisan way.
Utterly inconsistently, both sides also express serious distrust in mega-corporations. The New Right often views large corporations as part of a "global elite" disconnected from the average citizen and influencing government policies for its own benefit. Meanwhile, the left criticizes these entities for their alleged role in increasing income inequality, opposing workers' rights and degrading the environment.
As a result, despite throwing money at big businesses with one hand, both sides are bogging down corporations—especially the ones that successfully earn a lot of customers—with the other hand, stacking up regulations, or even threatening to break them up with antitrust cases.
Both the New Right and the left reject talks of fiscal discipline. No side wants to reform entitlement programs like Medicare and Social Security even though these programs are becoming insolvent. Both groups support expensive, often excessive, and politically popular redistribution to families, including rich ones, in the form of paid leave programs, child care subsidies, or expanded child tax credits.
Another area where the populist right is becoming indistinguishable from the left is support for unions. Traditionally, the right has viewed unions skeptically as helping some workers only by harming others. The New Right, influenced by a focus on the working class, has recently embraced unions as a means of furthering workers' rights and raising wages.
This shift bodes poorly for the economy, as populism has a track record of producing results opposite what their proponents promise. As Kleinfeld put it, "When economists Manuel Funke, Moritz Schularick, and Christoph Trebesch studied populist leaders from 1900 to 2020, they found that…after 15 years, a country led by a populist would have a GDP 10% lower than one governed by a non-populist leader" and unfortunately, "modern populists often bask in electoral support."
While many Americans and commentators are distracted by the apparent political polarization, a significant realignment of sorts is happening among populists. If it solidifies its power, it will be bad news for America's economy, as well as for our liberties.
COPYRIGHT 2024 CREATORS.COM.
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]]>Hong Kong is using its national security law to arrest and prosecute critics residing in the United States. The Hong Kong police recently announced cash bounties of HK$1 million ($128,000) for information leading to the arrest of five young activists.
The targets—Frances Hui, Joey Siu, Simon Cheng, Johnny Fok, and Tony Choi—have all lawfully left Hong Kong and reside in countries that celebrate and guarantee their right to speak freely. There are now 13 overseas activists wanted by the region's police.
They are all accused of violating Hong Kong's national security law, which was enacted in 2020 and has since been used to clamp down on political dissent. According to Amnesty International, the law has been "abused from day one" to curb legitimate and peaceful expression. The maximum sentence is life in prison.
The bounty list underscores the importance of safeguarding freedom of thought and expression in the face of long-arm authoritarianism which, if left unchecked, can have a limitless reach.
"The entirety of the charge was based on my advocacy activities taking place out of Hong Kong," explains Hui, one of the targets on the bounty list and the first Hong Kong activist to receive political asylum in the U.S. following the enactment of the national security law. "Among the 13 overseas activists who currently have bounties placed on them by the Hong Kong authorities, three of them are citizens of the U.S., Canada, and Australia, all for their activities abroad."
The two rounds of bounties from this month and July "reflect the extraterritorial nature of the national security law," Hui continues. "It doesn't matter who you are, where you are, what you are doing. As long as you are considered a threat to the government, you are a threat to national security."
According to Hui, her personal safety is at risk, given the Chinese government's "outposts and overseas agents spread all around the world to spy [on] and harass activists abroad. She adds that "family members of wanted individuals are expected to be questioned, and some were threatened to make public statements slamming their loved ones remotely."
Now is the time for Americans to stand alongside those facing political persecution and push back on this foreign attempt at globalized censorship.
Hong Kong is emblematic of the fragility of democracy. The region was introduced to democratic and free market ideals through British rule. For over two decades, the Heritage Foundation, a conservative think tank, ranked it the world's freest economy. But this prosperity reached a swift end. "The loss of political freedom and autonomy" has had dire consequences, wrote former Heritage President Edwin J. Feulner, especially as ties to "English common law, freedom of speech, and democracy" have been severed entirely.
As Hong Kong changes, the West cannot follow suit. It should ensure that when people fleeing authoritarianism seek refuge within a liberal democracy, they enjoy the protections that come with it.
If Hong Kong police arrest the activists, the penalties could be severe, if not life-threatening—as seen in the case of Jimmy Lai. Uncoincidentally, the December bounty list was released at the same time that Lai, a 76-year-old British citizen, began to stand trial for his pro-democracy advocacy and publishing. He has been an outspoken critic of the Chinese government's human rights abuses, a "crime" that has landed him in solitary confinement for the past three years. According to his son, Lai is being subjected to a fixed-outcome "show" trial with three government-appointed judges and no jury.
Lai's ongoing trial and the bounty list highlight the need for Western countries to safeguard free speech. These are foreign attempts to chill dissent regardless of where an activist is from or where he resides. If the Hong Kong police succeed in that mission, they may well go after all criticism, targeting major news outlets covering Lai's trial and social media users who reshare posts that say #FreeHongKong.
Our protections for free speech cannot be so shallow that they yield to foreign governments that try to criminalize conduct on our soil. The U.S. and other Western countries must protect these activists against long-arm authoritarianism and secure their ability to live and speak freely without fear for their safety.
The post Hong Kong Police Targeting Overseas Activists and Speech appeared first on Reason.com.
]]>After two former Georgia election workers sued Rudy Giuliani for falsely accusing them of committing massive fraud in 2020, his attorney argued that the real culprit in that calumny was The Gateway Pundit. Meanwhile, Gateway Pundit publisher Jim Hoft, who faced a separate defamation lawsuit by the same plaintiffs, was arguing that his website "fairly and accurately reported on the claims made by third parties, such as Trump's legal team," which Giuliani led.
This month's $148 million verdict against Giuliani suggests that jurors were not swayed by his attempt to shift the blame for his baseless allegations. His consolation prize is top billing in my annual list of memorable moments in buck passing, several of which involved the tireless peddler of Donald Trump's stolen-election fantasy.
'Really Crazy Stuff.' That was Rupert Murdoch's private description of Giuliani's baroque conspiracy theory, which Fox News nevertheless helped promote. Although the outlet, like Hoft, blamed Giuliani et al. for the tall tale, its frequently credulous coverage of his allegations against Dominion Voting Systems resulted in a $787 million defamation settlement last April.
'I Relied on Others.' In October, Jenna Ellis, a member of Giuliani's "elite strike force team," pleaded guilty to a state charge of aiding and abetting false statements. Even while admitting that she had failed to fact-check the team's election fraud claims, Ellis tried to mitigate her responsibility, saying, "I relied on others, including lawyers with many more years of experience than I, to provide me with true and reliable information."
'There's Nothing There.' In January, we learned that President Joe Biden, who had slammed Trump's "totally irresponsible" handling of classified records, also had retained sensitive material he was not supposed to have. "We found a handful of documents were filed in the wrong place," Biden said, taking refuge in the passive voice. "I think you're going to find there's nothing there."
The Mask Slips. In May, after former White House COVID-19 adviser Anthony Fauci conceded that face masks had, at best, a modest overall impact on coronavirus transmission during the pandemic, CNN's Erin Burnett noted that his admission seemed to contradict what Surgeon General Vivek Murthy and other public health officials had been saying for three years. Murthy implausibly blamed ever-shifting science, saying, "Sometimes guidance does evolve over time as you learn more," which "can be disconcerting."
'Concerns Have Been Raised.' A year ago, the World Journal of Oncology retracted an eyebrow-raising study claiming that nicotine vapers face about the same cancer risk as cigarette smokers. Blaming the study's authors, who failed to address post-publication "concerns" about their "methodology," "data processing," "statistical analysis," and "conclusions," the journal's editors did not explain why they and their peer reviewers had overlooked these and other glaring deficiencies.
Black-Market Boosters. Nearly three years after New York supposedly legalized recreational marijuana, state-approved stores remain scarce and account for a tiny percentage of sales. Instead of admitting their complicity in this fiasco, state officials are promising a crackdown on the unauthorized vendors who have proliferated because the legal industry is hobbled by heavy taxes, burdensome regulations, and maddening red tape.
'Percocet via Snapchat.' At a Republican presidential debate in September, Vivek Ramaswamy blamed deaths from fentanyl disguised as pain pills on "bio-terrorism" abetted by social media. He conveniently overlooked the fact that such hazards are a product of the prohibition policies that he supports, which create a black market where the composition of drugs is uncertain and unpredictable.
'Floored and Shocked.' In August, after five of his deputies admitted torturing two men during an unlawful home invasion, Rankin County, Mississippi, Sheriff Bryan Bailey said he was "floored and shocked" by the "horrendous crimes" of "these few individuals." Yet Bailey's underlings had been committing similar abuses for nearly two decades, generating multiple complaints and lawsuits. "I'm going to fix this," he promised while insisting he was oblivious to that pattern of brutality. "I'm going to make everyone a whole lot more accountable."
© Copyright 2023 by Creators Syndicate Inc.
The post 'I Relied on Others,' 'Documents Were Filed in the Wrong Place,' and Other Memorable Excuses appeared first on Reason.com.
]]>Applicant is 37 years old…. In 2007, he earned a bachelor's degree of science in mathematics and physics and his doctorate in 2018, both from U.S. universities. Applicant worked for various companies in the United States, on a post doctorate fellowship for a federal government agency, and performed research for that U.S. government agency from 2017 to 2018. He has been employed with his current employer since February 2020, and is sponsored for a security clearance….
Applicant was born in the United States to U.S. parents who are citizens and residents of the United States, but possess dual citizenship with Israel. In 1985, when Applicant was nine months old, his parents moved to Israel because they were idealistic in nature, not because they were unhappy with the United States. Thus, Applicant is a dual citizen of the United States and Israel, and has a U.S. passport and an Israeli passport. Applicant's family had never lived in Israel prior to that time. Any Jewish person is allowed to go to Israel and claim a right of Israeli citizenship. Applicant and his family travelled back to the United States annually and maintained close ties with their extended family, most of whom remain based in America. Applicant is close to his grandparents, aunts, uncles, and cousins who reside in the United States. When Applicant was 16, his parents decided it was time to move back to the United States permanently to care for their aging parents.
After Applicant's, graduation from a U.S. undergraduate school in 2007, he felt a longing to return to Israel for the culture of his youth. He wanted to travel around Europe and Morocco and wanted to go to Israel for a sense of adventure. He lived with his cousin who is also an immigrant from the United States. He obtained a job in Israel, but was drafted by the Israeli Defense Forces (IDF) from about April 2008 until November 2008. Applicant had the choice to serve this mandatory requirement or be sent to jail. While in the IDF, he served as a truck driver. Applicant has no plans on serving in the IDF in the future, but if drafted, while in Israel, he will have no choice but to serve or be jailed.
During his time in Israel, Applicant enrolled in a two-year master's program at an Israeli Institute of Technology. This Institute is sponsored, in part, by private donations from American Jews. His met his girlfriend, who later became his wife. She is an American citizen and was studying abroad in Israel. He stayed there to be with her. Applicant returned to the United States in 2011. Upon his return to the United States. Applicant did some work and research for U.S. government agencies.
Applicant's wife does not possess dual citizenship. She is a cantor in a temple in the United States. Their two children were born in the United States, but do have dual citizenship. Other than the period from 2007 and 2011, Applicant has been based in the United States. His wife occasionally takes students who are sponsored by private donations to visit Israel and experience what it is like. The purpose of the short visit is to introduce young Jews to their heritage. The trips may occur every two years. She has never lived in Israel.
Applicant was adamant that he maintains his Israeli citizenship out of emotional and spiritual ties not because he has a preference for Israel over the United States. His family, along with other American-Jewish persons are fully devoted to the United States. His grandfather served in the U.S. military and is a veteran. His other grandfather served on the national energy committee of President Carter. In tandem, they each served various leadership positions in their local Jewish communities and advocated for the state of Israel.
The last time Applicant visited Israel was in 2018 to attend a wedding. He had been travelling from about 2010 to 2015 to see family. He noted that he spent a month in 2013 to trek across the desert with his brother.
Applicant explained that due to professional and personal ties to the United States, it is highly unlikely that he would move back to Israel for any extended period of time. From a practical point of view, neither his wife nor he, could get professional positions in Israel. She is a cantor in a temple and they do not allow female cantors in Israel. He is involved in a nuclear energy program for the DOD.
Applicant's top priority is his immediate family, all of whom live in the United States. His parents live nearby and his children are deeply committed to their grandparents. His wife's parents are in the United States and are U.S. citizens, and do not have dual citizenship. His siblings live in the United States. Applicant's wife has some cousins in Israel with whom she has no contact. Applicant no longer has contacts with the people he met in the IDF. His last communication was in 2016. He has no friends or family who serve within the IDF.
Applicant and his wife own a home in the United States of considerable value. They both have good salaries. Applicant has investments in the United States worth about $84,000. He provided documentation to prove his assertions. Applicant has one account in Israel with a few hundred dollars. He did not close it, but never invested money in it. Israel charges fees for the account, so he may have a negative balance. He stands to inherit nothing in Israel.
Applicant would not have access to Israeli healthcare benefits because he has not paid Israeli taxes for the last ten years. The taxes allow you to benefit from the Israeli health care. This is true even if you are not living in Israel. Applicant would not gain any immediate benefit or financial gain by returning to Israel. He receives no pension from his IDF service. He is willing to give up his Israeli passport.
When Applicant completed his September 14, 2016 SCA, and his DOHA interrogatories, he disclosed people who he knew from the IDF. Now, he no longer keeps in contact with them. He listed his trips to Israel and the number of days he was in Israel. He listed the employer he worked for when in Israel. Applicant no longer has contact with the people he knew in the IDF since so many years have gone by. The SCA also contained his other trips to Europe for tourism. He responded negatively to an inquiry into whether he has had, within the last seven years, any close or continuing contact with a foreign national to whom he was "bound by affection, influence, common interests, and/or obligation." Applicant did not think of friends as foreign nationals because he became friends with them in childhood….
At the hearing, Applicant related that this narrative is common among American Jews. Although religiously affiliated with Israel, we are no less than fully devoted U.S. citizens. He stated that he has never received encouragement from any companies foreign intelligence or security service companies urging him to engage in industrial espionage….
Policies
The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that "no one has a 'right' to a security clearance." … The protection of the national security is the paramount consideration. AG [National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position] ¶ 2(b) requires that "[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security." … Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR [Statement of Reasons for denying a security clearance]. Under Directive ¶ E3.1.15, the applicant is responsible for presenting "witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel…." The applicant has the ultimate burden of persuasion to obtain a favorable security decision.
A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that decisions shall be "in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned." …
Analysis
Guideline C (Foreign Preference)
The SOR alleges that in a 2018 subject interview Applicant stated he did not know if he held allegiance to Israel or the United States, because he had never been in a position to choose and maintains Israeli citizenship out of emotional ties because it would be spiritually disruptive, and he served in the Israeli Defense Force from April 2008 to about November 2008, and he has a standing obligation to the Israeli Defense Force draft and intends on fulfilling his obligation . The security concern under Guideline C (Foreign Preference) is set out in AG ¶ 9, as follows:
When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the United states be prone to provide information or make decisions that are harmful to the interests of the United States Foreign involvement raises concerns about an individual's judgement, reliability, and trustworthiness when it is in conflict with the U.S. national interests or when the individual acts to conceal it. By itself, the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S citizen's exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship.
Three disqualifying conditions under this guideline are potentially relevant:
AG ¶ 10 (a): applying for and/or acquiring citizenship in another country; and
AG ¶ 10 (d): participation in foreign activities, including but not limited to:
(1) Assuming or attempting to assume any type of employment, position, or political office in a foreign government or military organization.
Applicant's dual citizenship is not, by itself, a disqualifying condition. Under Guideline C, "the issue is not whether an applicant is a dual national, but rather whether an applicant shows a preference for a foreign country through actions." Thus, the fact that Applicant's parents, both U.S. citizens took him to Israel when he was nine months old was not a deliberate action that he took, after being born as a U.S. citizen. This does not establish AG ¶ 10(a).
Applicant returned to Israel because of his heritage. He was drafted by the IDF and served six months as a truck driver. AG ¶ 10(d)(1) is not established.
Applicant has established the mitigating condition in AG ¶ 11(a) and 11(b) because the dual citizenship is based on his parental citizenship. AG ¶ 11(e) applies because he no longer has the entitlements and benefits as an Israeli citizen (foreign citizenship) that present a national security concern. {Applicant would not have access to Israeli healthcare benefits because he has not paid Israeli taxes for the last ten years. The taxes allow you to benefit from the Israeli health care. This is true even if you are not living in Israel. Applicant would not gain any immediate benefit or financial gain by returning to Israel. He receives no pension from his IDF service. He is willing to give up his Israeli passport.} …
Guideline B: Foreign Influence
The security concern relating to the guideline for foreign influence is articulated in AG ¶ 6:
Foreign contacts and interests, including but not limited to, business, financial, and property interests, are a national security concern if they result in divided allegiance. They may also be a national security concern if they create circumstances in which the individual may be manipulated or induced to help a foreign person, group, organization, or government in a way that is inconsistent with U.S. interests or otherwise made vulnerable to pressure or coercion by any foreign interest. Assessment of foreign contacts and interests should consider the country in which the foreign contact or interest is located, including, but not limited to, considerations such as whether it is known to target U.S. citizens to obtain classified or sensitive information or is associated with a risk of terrorism.
During his childhood and adolescence, Applicant was in Israel because his U.S. parents took him at the age of nine months. Applicant and his parents returned to the United States where they now live. His immediate family and his wife live in the United States and are U.S. citizens. His aunt and uncle live in Israel.
Review of Applicant's foreign contacts and connections is warranted to determine whether they present a heightened risk under AG ¶ 7(a) or create a potential conflict of interest under AG ¶ 7(b). Those disqualifying conditions provide:
(a) contact, regardless of method, with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; and
(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual's obligation to protect classified or sensitive information or technology and the individual's desire to help a foreign person, group, or country by providing that information or technology.
Not every foreign contact or tie presents the heightened risk under AG ¶ 7(a). The "heightened risk" denotes a risk greater than the normal risk inherent in having a family member or friend living under a foreign government. The nature and strength of the familial or friendship ties and the country involved (i.e., the nature of its government, its relationship with the United States, and its human rights record) are relevant in assessing whether there is a likelihood of vulnerability to government coercion. The risk of coercion, persuasion, or duress is significantly greater if the foreign country has an authoritarian government; a close friend or family member is associated with, or dependent on, the foreign government; or the country is known to conduct intelligence operations against the United States. In considering the nature of the foreign government, the administrative judge must take into account any terrorist activity in the country at issue.
Israel and the United States have long had a close friendship. The United States is committed to Israel's security. However, Guideline B concerns are not limited to countries hostile to the United States. Even friendly nations may have interests that are not completely aligned with the United States. The Appeal Board has long held that "[t]he United States has a compelling interest in protecting and safeguarding classified information from any person, organization, or country that is not authorized to have access to it, regardless of whether that person, organization, or country has interests inimical to those of the United States." There is no recent report showing direct involvement by the Israeli government targeting the United States. However, the interests of the two countries have not always been aligned.
There is no evidence that Israel has used coercive methods on its resident citizens to obtain U.S. sensitive information. However, it does not eliminate the possibility that Israel would employ some non-coercive measures in an attempt to exploit a relative, friend, or acquaintance. Israel faces threats by jihadist groups, other terrorist organizations, and some states in the region that are avowedly anti-Israel. Within Israel, many of those attacks are directed at Jewish or Israeli interests. Israel attempts to prevent the indiscriminate acts of violence against its citizens or tourists in Israel and strictly enforces security measures designed to combat and minimize the risk presented by terrorism. Nonetheless, the risk of terrorism and civil unrest in Israel have led the U.S. State Department to continue to advise travelers to exercise increased caution when in Israel.
U.S. Applicant maintains some relationship with three cousins who live in Israel but are citizens. He sees them at weddings, but does not keep in close contact with them. AG ¶ 7(a) applies.
Three mitigating conditions under AG ¶ 8 apply in whole or in part with respect to Applicant's foreign ties and contacts. They are:
(a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the United States;
(b) there is no conflict of interest, either because the individual's sense of loyalty or obligation to the foreign person, or allegiance to the group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the United States, that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; and
(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation.
Applicant ended his communications with the friends he made while in the IDF. The friends that he has are dual citizens. Some live in the United States. His wife is a U.S. citizen. His immediate family live in the United States. However, it is difficult to fully apply AG ¶ 8(a) in mitigation, given the very real risk of terrorism faced by Israeli resident citizens. AG ¶ 8(c) has some applicability in mitigation in that their current contact is casual and infrequent.
In evaluating whether Applicant has "such deep and longstanding relationships and loyalties in the United States" to trigger AG ¶ 8(b) in mitigation, it is noted that, despite spending a gap year studying in Israel, Applicant has not exhibited or expressed any desire or intent to move to Israel. Applicant was raised and educated mainly in the United States, and he has chosen to pursue his career here as a scientist contributing to the U.S. defense effort. He enjoys an excellent reputation for good character and integrity by those persons who have had the opportunity to interact with him on a regular basis. He is not likely to jeopardize his spouse's security or risk his professional reputation by succumbing to any undue foreign influence that could potentially be exerted through his friendships with friends from childhood and adolescence who have chosen to live as Israeli resident citizens. Applicant's clear preference for his life in the United States weighs favorably in assessing whether he can be expected to resolve any conflict of interest for the United States. AG ¶ 8(b) applies.
Whole-Person Concept
Under the whole-person concept, the administrative judge must evaluate an applicant's eligibility for a security clearance by considering the totality of his conduct and all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 2(d). Those factors are as follows:
(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.
Those factors have been considered in my evaluation of the Guideline B concerns, but some warrant additional comment. When Applicant completed his SF 86 in 2016, he disclosed many personal contacts living in Israel. None of whom he communicates with now. He now has a better appreciation of the risk of undue foreign influence. While Applicant cannot control the actions of the Israeli government or of foreign actors that may seek to obtain classified or sensitive information from him by pressuring his friends, he can control his response. He credibly asserts that, if his friends in Israel were to ask any probing questions about his work or attempt to exert any foreign influence, he would immediately report it and follow security protocols. After considering the evidence of record, I am persuaded that Applicant can be counted on to fulfill his security obligations….
The post An Interesting Decision from Last Year on a Security Clearance for an American-Israeli Joint Citizen appeared first on Reason.com.
]]>Findings of Fact
… On January 13, 2021, a U.S. servicemember reported that a vehicle on the military installation was "displaying Three Percenter and QAnon stickers on its back window. Both of these organizations/beliefs have been linked to racially motivated violent extremism and anti-government actions." He reported that he first noticed the "III" sticker on July 31, 2020, and the QAnon sticker on January 12, 2021. He stated that he became aware of the III symbol because it was reported that an NFL player had the symbol as a tattoo.
The military criminal investigation division did a criminal and insider-threat analysis and determined that Applicant was not suspected of committing a criminal offense or being an insider threat. The military criminal investigation division did not open an investigation, with the following rationale in an email dated January 15, 2021:
- Social media was identified with no derogatory information noted.
- The FBI has not designated the 3%ers or QAnon as a terrorist organization. Neither of them are organized groups.
- The 3%er sticker alone is not an indicator of militia affiliation (see attached [FBI Joint Information Bulletin identified in above Evidence section] and below for more details.
- While an internet search for three percenters (III%) and QAnon will yield several sites declaring them anti-government, militia linked, or conspiracy theorists; as with any group there are those who take matters to the extreme and those who are more conservative in their voice. Displaying a sticker in support of either group does not make an individual a threat.
- At this time, [Applicant] is not suspected of committing a criminal offense or insider threat.
An administrative investigation was ordered and completed by a U.S. military field grade officer. The investigation disclosed that the vehicle belonged to Applicant. The Three Percenter sticker has III inside a circle of stars. The QAnon sticker is a stylized Q with a skull inside. Applicant bought the III sticker on eBay for $20 and placed it on his vehicle in about June 2020. He bought the QAnon sticker on eBay for $10 and placed it on his vehicle in about January 2021. He also bought a rubber bracelet with a red Q.
During the investigation, Applicant stated that he placed the III sticker on his vehicle because he liked the design and to "tell that I defend the Constitution. That I am a patriot. I want to show loyalty as a patriotic American." He stated that his understanding of the Three Percenters was that ""[i]t's like Paul Revere, protecting the second amendment and the Constitution. Nothing to do with supremacy or extremism."
Applicant stated that he placed the QAnon sticker on his vehicle "to raise awareness. Spawn curious[ity] and let people research for themselves." He stated that his understanding of QAnon was that it "is a group that conducts independent research. It's not an ideology nor does it promote violence or any type of derogatory actions. [T]here is no ill har[m] at all. It is suspected of being very close to [the] Trump administration."
The investigator interviewed a number of Applicant's work colleagues. He was described as "glad to be at work"; "low-key, calm, friendly, easy going guy"; "respectful and competent in his duties"; "very quiet, tends to keep things to himself"; and an "introvert." Most of his colleagues stated that they had not seen Applicant display images of either QAnon or Three Percenters, but most of his colleagues were unfamiliar with QAnon or Three Percenters before the investigation.
Applicant's supervisor at the time, a retired lieutenant colonel, provided a statement for the investigation. He had never heard Applicant discuss Three Percenters or QAnon, and he never heard Applicant advocate any activities designed to overthrow the U.S. Government by force. He stated that "[e]verybody in the office discussed the riots on Jan. 6. We were all horrified by the incident and everyone in the office disagreed with what occurred, including [[Applicant]." The supervisor was unfamiliar with Three Percenters before Applicant's stickers became an issue. He then looked them up online. What he found indicated that the Three Percenters supported the Constitution by non-violent means. He also looked up QAnon, and he felt it was developed as a joke, and that "[w]ho else would come up with a story line that the world is controlled by a small cabal of children eating cannibals? A good video game story, but, laughable. I don't think anyone takes it seriously, but they enjoy following the antics of the few idiots who do."
One employee reported to the investigator that he and Applicant were traveling by car on a work trip when he noticed Applicant wearing a rubber bracelet with a red letter Q. The employee asked him about the bracelet. Applicant stated it was an online social media group that he followed. The employee reported that Applicant "described Q as what [he] would consider conspiracy theories about shadow government and pedophiles."
The investigator reported that there was no indication that Applicant had ever specifically advocated activities designed to overthrow the U.S. Government by force, and that there was no indication that he supported the January 6, 2021 insurrection at the Capitol.
On numerous occasions, Applicant accessed QAnon-affiliated websites and social media using his government computer system. On June 29, 2020, and June 30, 2020, using his government email account, he sent emails through his government computer system to three other federal employees. Attached to the emails were documents that contained QAnon-associated rhetoric. With slight variations, the two attached documents had the same message. The two-page message is a rambling diatribe that appears to be mainly against the mainstream media with open-ended questions. This was during the COVID-19 pandemic and around the time of the lockdown. One of the recipients of the email stated that he was not alarmed by the message and thought the message may have referred to the media's coverage of elections and the lockdown. Another recipient remembered receiving the email, but not the contents.
I did not understand much of the QAnon message (possibly because it is written in a way to be intentionally obtuse), but I did not see anything calling for violence. One section stated, "They want you divided" by religion, race, sex, political affiliation, and class, and that "When you are divided, and angry, and controlled, you target those 'different' from you, not those responsible [controllers]." (Emphasis in original) The message closed with:
"Free thought" is a philosophical viewpoint which holds that positions regarding truth should be formed on the basis of logic, reason, and empiricism, rather than authority, tradition, revelation, or dogma. THIS REPRESENTS A CLEAR AND PRESENT DANGER TO THE CONSTITUTIONAL REPUBLIC OF THE UNITED STATES OF AMERICA.
Applicant followed on his government computer system numerous QAnon conspiracy theories and messages posted on Facebook. A post from May 7, 2020, addressed a media conspiracy directed at the 2020 Presidential election, and included: "When do you expend ammunition? For What Purpose? … You have more power and influence than you realize. Welcome to the Revolution. Q" (Emphasis in original) Another post on October 31, 2020, stated, "Are you ready to finish what we started? 'Nothing can stop what is coming' is not just a catch-phrase. Q" A third post, apparently from November 2020, was a political comic referencing election fraud….
Applicant adamantly denied that he is a Three Percenter, that he has ever been a member of a militia or any similar group, or that he supports or is sympathetic to any group that "advocates resistance to certain U.S. federal government policies." He was horrified by the events at the Capitol on January 6, 2021. He testified that he did not understand the full meaning of the III sticker, and that he came across it on eBay. He liked the design, and he thought it symbolized patriotism, support for the Second Amendment, and the national dialogue. He did not realize it was associated with extremist groups. He added that he "thought they were Constitution defenders, kind of like Paul Revere, people that stand up when there is like, the Government is not doing exactly as the Constitution states."
Applicant testified that he thought "QAnon is basically an online repository of information. There's no ideology. A person can go in and access it and do their own research on it." He stated that it is "kind of like a big puzzle," and ""kind of like the Da Vinci Code." He did not agree with everything on QAnon. He stated that he sent the emails "to spawn curiosity, just to give them an alternate view over what mainstream media was saying on the TV in our office." He stated that he thought the QAnon website he visited would have been blocked if it was a problem, and he was never notified by any IT personnel that it was a problem before the investigation. He felt the QAnon message he sent was anti-racist, and promoted unification, not division. He now feels that he was misinformed about QAnon. He does not intend to have any further connection to QAnon.
Applicant submitted letters and documents attesting to his outstanding job performance and strong moral character. He is praised for his patriotism, efficiency, competence, dedication, work ethic, compassion, leadership, positive attitude, honesty, trustworthiness, and loyalty to the United States. They recommend him for a security clearance.
The colleagues and supervisor at his former job, which include several retired U.S. military officers, feel that Applicant was unfairly treated because they never saw any indication that he was sympathetic to any militia or extremist group. They confirm that he was appalled by the events of January 6, 2021, and he condemned the insurrection. They believe that the politically charged atmosphere following January 6, 2021, contributed to the command's decisions. A security officer at the command expressed the same view….
Policies
This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on June 8, 2017.
When evaluating an applicant's suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant's eligibility for access to classified information.
These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge's overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the "whole-person concept." The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that "[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security." …
A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information….
The judge concluded, among other things:
Guideline A, Allegiance to the United States …
While an internet search for three percenters (III%) and QAnon will yield several sites declaring them anti-government, militia linked, or conspiracy theorists; as with any group there are those who take matters to the extreme and those who are more conservative in their voice. Displaying a sticker in support of either group does not make an individual a threat.
Applicant had no connection to Three Percenters beyond the sticker. An examination of his government computer and search history revealed numerous searches and websites connected to QAnon, but nothing associated with Three Percenters, III%ers, or Threepers. No co-worker ever recalled Applicant making any reference to Three Percenters. Some militias have added Three Percent to their name. Some militias have also added words like "Patriot" to their names. That does not mean that someone who identifies as a patriot also identifies with the militias. With the power of hindsight and the passage of about four years, we now see the connections some Three Percenters have to militia groups. It does not seem fair to hold Applicant to knowledge that even the military criminal investigation division did not have at the time. I am not convinced that Applicant drew the connection when he placed the III sticker on his vehicle. Nor am I convinced he associated with or sympathized with a Three Percenter domestic militia. There are no disqualifying conditions applicable to SOR ¶ 1.a, and it is concluded for Applicant….
To many people, QAnon is a joke that cannot be taken seriously. That may be true, but QAnon is also dangerous. The FBI assessed that fringe political conspiracy theories, such as QAnon, very likely motivate some domestic extremists, wholly or in part, to commit criminal and sometimes violent activity. Certain conspiracy theory narratives tacitly support or legitimize violent action. The FBI also assumes that some, but not all, individuals who hold such beliefs will act on them. Some self-identifying QAnon adherents participated in the breach of the U.S. Capitol on January 6, 2021.
I do not believe that Applicant ever intended to commit or support any violent act against the U.S. Government, but his connections to QAnon brought him into association with those who did….
Any person who supports violent acts against the U.S. Government should not hold a security clearance. As indicated above, I do not believe Applicant is one of those individuals. Applicant's interest in QAnon was limited and did not involve any deeper nefarious motives. It does not cast doubt on his current reliability, trustworthiness, or allegiance. Guideline A security concerns are mitigated.
Whole-Person Concept …
Applicant is either a naive patriot who bought III and QAnon stickers and was somewhat enthralled by QAnon without fully understanding their significance and the underlying dangers associated with those entities, or he is a supporter of domestic terrorism who was able to keep that hidden from all who knew him best. For all the reasons discussed above, I am convinced he is the former. I believe his co-worker correctly summarized the situation in his statement for the investigation: "[Applicant] has never represented himself as anything other than being patriotic. I think he got himself caught up in something he didn't know what he was getting into." …
Conclusion
It is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.
The post When Should Security Clearance Be Denied Based on Interest in QAnon and Three Percenters? appeared first on Reason.com.
]]>On Friday, the U.S. Supreme Court stayed a preliminary injunction aimed at preventing federal officials from unconstitutionally interfering with content moderation decisions by social media platforms. At the same time, the Court agreed to decide the merits of the case, Murthy v. Missouri, during its current term. The stay will remain in place until the justices resolve that case, so the Biden administration meanwhile is free to resume contacts with social media companies that a federal judge and the U.S. Court of Appeals for the 5th Circuit concluded were probably inconsistent with the First Amendment.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, objected to the Court's "unreasoned" stay, saying the government had failed to show that it would suffer "irreparable harm" if the 5th Circuit's injunction remained in place while the case was pending. "Government censorship of private speech is antithetical to our democratic form of government, and therefore today's decision is highly disturbing," Alito wrote. "Despite the Government's conspicuous failure to establish a threat of irreparable harm, the majority stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified."
The case began with a lawsuit by the attorneys general of Missouri and Louisiana, joined by several social media users whose posts had been downgraded or deleted as "misinformation." They argued that such decisions resulted from relentless pressure by federal officials who were determined to suppress online speech they viewed as dangerous to public health, democracy, or national security. The plaintiffs said that pressure, which was accompanied by implicit threats of retaliation against noncompliant platforms, crossed the line between permissible government speech and censorship by proxy.
Last July, U.S. District Judge Terry Doughty agreed. Doughty issued a preliminary injunction, backed by a 155-page opinion, that restricted communications between several federal agencies and social media platforms. Last month, the 5th Circuit upheld the gist of Doughty's decision, although it narrowed the terms of his injunction and reduced the number of agencies to which it applied.
Under the 5th Circuit's injunction, the White House, Surgeon General Vivek Murthy's office, the FBI, and the Centers for Disease Control and Prevention (CDC) were forbidden to "coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech." This month, after a rehearing requested by the plaintiffs, the 5th Circuit expanded that injunction to cover the Cybersecurity and Infrastructure Security Agency.
The Biden adminstration asked the Supreme Court to intervene, saying the injunction placed "unprecedented limits on the ability of the President's closest aides to use the bully pulpit to address matters of public concern, on the FBI's ability to address threats to the Nation's security, and on the CDC's ability to relay public-health information at platforms' request." U.S. Solicitor General Elizabeth Prelogar rejected the plaintiffs' characterization of interactions between federal officials and social media companies regarding COVID-19 "misinformation," saying the ensuing decisions to delete posts, banish specific users, or modify content rules resulted from a collaborative process. "Rather than any pattern of coercive threats backed by sanctions," she said, "the record reflects a back-and-forth in which the government and platforms often shared goals and worked together, sometimes disagreed, and occasionally became frustrated with one another, as all parties articulated and pursued their own goals and interests during an unprecedented pandemic."
That "back-and-forth," however, included "requests" that were tantamount to commands. "Are you guys fucking serious?" Deputy Assistant to the President Rob Flaherty said in an email to Facebook. "I want an answer on what happened here and I want it today." Because Facebook was "not trying to solve the problem," White House COVID-19 adviser Andrew Slavitt told Facebook, the White House was "considering our options on what to do about it." On another occasion, Flaherty told Twitter to delete a parody account tied to one of Biden's grandchildren "immediately," saying he could not "stress [enough] the degree to which this needs to be resolved immediately."
According to Prelogar, such interactions did not amount to government-directed censorship. "It is axiomatic that the government is entitled to provide the public with information and to 'advocate and defend its own policies,'" she said. "A central dimension of presidential power is the use of the Office's bully pulpit to seek to persuade Americans—and American companies—to act in ways that the President believes would advance the public interest." Although "the government cannot punish people for expressing different views" or "threaten to punish the media or other intermediaries for disseminating disfavored speech," she said, "there is a fundamental distinction between persuasion and coercion."
Prelogar complained that the 5th Circuit had conflated the former with the latter. She said the appeals court could not cite "a single instance in which an official paired a request to remove content with a threat of adverse action." She also noted that "the platforms declined the officials' requests routinely and without consequence."
As the Biden administration sees it, coercion requires an explicit threat tied to a specific request, followed by imposition of that "consequence" when a platform rejects the request. The plaintiffs take a broader view of coercion, arguing that it can be inferred when public and private castigation is coupled with repeated references to presidential displeasure and the potential consequences of failing to meet the "responsibility" that administration officials insisted the social media platforms had to control "misinformation." Federal officials publicly said holding social media companies "accountable" could entail "legal and regulatory measures," new privacy regulations, "a robust anti-trust program," and reduced legal protection against civil claims based on user-posted content.
"The bully pulpit is not a pulpit to bully," the plaintiffs said in opposition to Prelogar's request for a stay. "The district court's findings and the evidence establish an extensive
campaign by federal officials in the White House, the Surgeon General's Office, the CDC, and the FBI to silence disfavored viewpoints on social media….To induce platforms to remove such content, White House officials resorted to a battery of harassing and menacing statements." The 5th Circuit's injunction should be left in place, they argued, because it "closely matches what the First Amendment already requires [federal officials] to do."
Alito, Thomas, and Gorsuch were sympathetic to that view. "The Court of Appeals agreed with the District Court's assessment of the evidence, which, in its words, showed the existence of 'a coordinated campaign' of unprecedented 'magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life,'" Alito wrote. "The Court of Appeals found that 'the district court was correct in its assessment'" that "'unrelenting pressure' from certain government officials likely 'had the intended result of suppressing millions of protected free speech postings by American citizens.'"
Alito said the administration's claim of "irreparable harm" from the 5th Circuit's injunction was based on nothing more than speculation that it might have a chilling impact on permissible government speech. Suppose, Prelogar said, the president "urges platforms not to disseminate misinformation about a recent natural disaster circulating online" and "the platforms comply." Or suppose "the President condemns the role that social media has played in harming teenagers' mental health, calls on platforms to exercise greater responsibility, and mentions the possibility of legislative reforms." Prelogar suggested that such statements might be construed as violating the 5th Circuit's injunction.
"It does not appear that any of the Government's hypothetical communications would actually be prohibited by the injunction," Alito said. "Nor is any such example provided by the Court's unreasoned order. The Government claims that the injunction might prevent 'the President and the senior officials who serve as his proxies' from 'speak[ing] to the public on matters of public concern.'" But "the President himself is not subject to the injunction," and "in any event, the injunction does not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government's view of responsible conduct."
Alito noted that "the injunction applies only when the Government crosses the line and begins to coerce or control others' exercise of their free-speech rights." He asked: "Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?"
Since the 5th Circuit's injunction is no longer in effect, we may find out. Ultimately, however, the Supreme Court needs to clarify not only the difference between "persuasion" and "coercion" in this context but also the point at which the government's influence on content moderation is so extensive that it is unconstitutionally "encouraging" speech restrictions.
The post SCOTUS Will Decide When the Government's Social Media Meddling Violates the First Amendment appeared first on Reason.com.
]]>During Supreme Court Justice Brett Kavanaugh's 2018 confirmation hearing, Sen. Dianne Feinstein (D–Calif.) asked him to "reconcile" his conclusion that "assault weapon" bans are unconstitutional with "the hundreds of school shootings using assault weapons that have taken place in recent history." It was a classic Feinstein moment, combining her steadfast support for arbitrary gun laws with blatant misinformation and a logical non sequitur.
Feinstein, who died Thursday night at age 90, wrote the 1994 federal "assault weapon" ban, which prohibited the importation, manufacture, distribution, and possession of semi-automatic guns that she falsely claimed were uniquely suitable for mass murder. Although the distinctions drawn by that law never made much sense, Feinstein was determined to reinstate the ban after it expired in 2004, proposing a series of new, supposedly improved versions. Her dedication to a logically, practically, and constitutionally dubious gun control policy was of a piece with her diehard support for the war on drugs, her embrace of mass surveillance in the name of national security, and her willingness to restrict speech protected by the First Amendment, all of which reflected her consistently authoritarian instincts.
Feinstein's exchange with Kavanaugh was a window into the way she thought about public policy. Feinstein demanded an explanation for Kavanaugh's dissent from a 2011 decision in which the U.S. Court of Appeals for the D.C. Circuit upheld the District of Columbia's "assault weapon" ban. As he noted in that opinion, the D.C. law (like Feinstein's bills) covered a "haphazard" set of arbitrarily selected guns "with no particular explanation or rationale for why some made the list and some did not." Kavanaugh concluded that the ban was inconsistent with District of Columbia v. Heller, the 2008 case in which the Supreme Court recognized that the Second Amendment guarantees an individual right to armed self-defense.
As Kavanaugh explained to Feinstein, Heller says the Second Amendment protects the right to keep handguns for self-defense, while allowing that bans on "dangerous and unusual" weapons—firearms that are not "in common use" for "lawful purposes"—would be constitutional. "Most handguns are semi-automatic," Kavanaugh observed. "The question was can you distinguish, as a matter of precedent," between semi-automatic handguns and semi-automatic rifles. He noted that "semi-automatic rifles are widely possessed in the United States; there are millions and millions." To Kavanaugh, that meant the guns that Feinstein wanted to ban were "in common use" for "lawful purposes" such as self-defense and hunting, so possession of them was protected by the Second Amendment.
But Feinstein was not actually interested in Kavanaugh's legal reasoning. "How do you reconcile what you've just said with the hundreds of school shootings using assault weapons that have taken place in recent history?" she asked. In addition to wildly inflating the actual number of mass shootings at schools (with or without "assault weapons"), the question was nonsensical. Although handguns are by far the most common kind of weapon used in firearm homicides (including mass shootings), the Supreme Court in Heller nevertheless had upheld the constitutional right to own them for self-defense. There is obviously a difference between the empirical question of how often a particular category of firearms is used to commit crimes and the legal question of whether that category is covered by the Second Amendment.
Feinstein either did not understand or was determined to obscure that distinction, preferring an emotional appeal to anything resembling a constitutional argument. She showed the same impatience with legal niceties in a 2013 exchange with Sen. Ted Cruz (R–Texas), who had the temerity to join Kavanaugh in questioning the constitutionality of her pet legislation. "I'm not a sixth-grader," she said, objecting to Cruz's "lecture." Although "I'm not a lawyer," she added, "I've been up close and personal to the Constitution." But aside from her suggestion that "assault weapon" bans fell under "exceptions" recognized in Heller, Feinstein's purported intimacy with the Constitution did not yield any relevant insights.
Feinstein instead appealed to her personal experience with gun violence, starting with the day in 1978 when Dan White used a revolver to kill San Francisco Mayor George Moscone and Supervisor Harvey Milk. "Senator, I've been on [the Senate Judiciary Committee] for 20 years," she said. "I was a mayor for nine years. I walked in. I saw people shot. I've looked at bodies that had been shot with these weapons. I've seen the bullets that implode [sic]. In Sandy Hook, youngsters were dismembered." In short: If you think Americans have a right to own guns that can be used to kill innocent people, you hate children and want them to die.
When it came to drug policy, Feinstein was equally undaunted by facts and logic. She not only pushed the pseudoephedrine restrictions that have incommoded cold and allergy sufferers across the country without having any impact on methamphetamine use; she joined Sen. Chuck Grassley (R–Iowa) in proposing legislation aimed at the mythical threat of candy-flavored meth. She not only opposed legalization of recreational marijuana in California; she worried that the Justice Department was not responding aggressively enough to legalization in Colorado and Washington.
Even on medical use of marijuana, which 38 states currently allow, Feinstein did not yield an inch. In 2015, she was the only Democrat on the Senate Appropriations Committee who voted against a spending rider that bars the Justice Department from interfering with such laws.
Feinstein argued that the violence fostered by prohibition was a good reason for the government to redouble its efforts to discourage drug use. She was ever eager to expand the war on drugs, whether the target was imitation marijuana or Four Loko.
In addition to gun violence and drug abuse, Feinstein worried a lot about national security, an area where she likewise displayed little concern for civil liberties. She dismissed revelations about the National Security Agency's mass, warrantless collection of information about Americans' telephone calls, saying it was "just metadata." She thought WikiLeaks founder Julian Assange should be prosecuted for publishing classified information of clear public interest, even though that is something journalists who cover national security routinely do. Caught up in the hysteria about Russian trolls, she warned social media companies they had better "do something" about "disinformation," or else "we will." Combining two of her interests, she said anyone "appropriately suspected" of involvement in terrorism should lose his Second Amendment rights based on "a reasonable belief" that he "may" use a gun "in connection with terrorism."
Based on her votes, the Institute for Legislative Analysis reports that Feinstein adhered to a "limited government" position 5 percent of the time. The best that can be said about her long career as a politician is that she pursued policies she honestly thought would work in the name of causes she genuinely cared about. But her good intentions produced positions that almost always seemed to err in favor of more government power and less individual freedom.
The post On Guns, Drugs, and National Security, Dianne Feinstein Was Consistently Authoritarian appeared first on Reason.com.
]]>In May 2022, Donald Trump received a federal subpoena demanding all the documents with classification markings that remained in his possession at Mar-a-Lago. At that point, SiriusXM talk show host Megyn Kelly suggested in an interview with the former president last week, he was legally obligated to surrender those records.
"I know this," Trump replied, then immediately corrected himself: "I don't even know that, because I have the right to have those documents." That startling response epitomized the lazy arrogance that Trump displayed in January 2021, when he removed thousands of presidential records from the White House, and during the ensuing year and a half, when he stubbornly resisted efforts to recover them.
In addition to 32 counts of willfully retaining national defense information, that pattern of defiance resulted in eight obstruction-related charges, which may pose the most serious threat to Trump's continued freedom. While the other three indictments against Trump face formidable obstacles, including controversial legal interpretations, complicated narratives, and difficult questions of knowledge and intent, the story behind the documents case is relatively straightforward: Trump took a bunch of stuff that did not belong to him and refused to return it.
Trump disputes both parts of that story. Under the Presidential Records Act, he told Kelly, "I'm allowed to do what I wanna do" with government documents, classified or not.
That is a counterintuitive reading of the statute, which says "the United States shall reserve and retain complete ownership, possession, and control of Presidential records." Those records include all documents a president produces or sees in the course of his work, except for material "of a purely private or nonpublic character."
As Trump noted in his interview with Kelly, that law was a response to "Richard Nixon, because he kept everything." Yet Trump claims the law is no bar to his similar assertion of complete discretion over the fate of presidential records.
Even if Trump had a credible argument to that effect, Kelly noted, that did not give him the right to defy a federal subpoena. If Justice Department officials had asked him for the classified material at Mar-a-Lago, Trump insisted, "I would have given it to them."
But that is not what happened. Through his lawyers, Trump said he had complied with the subpoena by surrendering every responsive document. That was not true: During its search of Mar-a-Lago on August 8, 2022, the FBI found 102 additional records marked as classified.
When Kelly pointed that out, Trump preposterously claimed "I just don't know the timing" of those events. "All I know is I'm allowed to have those documents," he said.
Trump could claim he accidentally overlooked some documents with classification markings. But that defense would be complicated by conversations in which Trump reportedly suggested hiding the documents, his clandestine removal of file boxes from the storage room his lawyers searched, and his alleged attempt to cover up that cover-up by instructing his underlings to delete security camera footage.
Instead, Trump is suggesting he did not have to comply with a subpoena he claimed to be obeying. This does not seem like a winning legal strategy.
Kelly also asked Trump about the top-secret Defense Department document he allegedly waved around during a July 2021 meeting with two people working on his former chief of staff's memoir. A recording shows that Trump said the "highly confidential" document contained "secret information," adding that "as president, I could have declassified it," but "now I can't," so "this is still a secret."
Trump later told Fox News anchor Bret Baier "there was no document"—only press clippings. When Kelly asked him to reconcile that claim with what he said at the time, Trump replied, "I'm not going to talk about that, because that's already been, I think, very substantiated, and there's no problem with it."
Trump told Kelly he plans to testify in his own defense. For his own sake, his lawyers should try to talk him out of that.
© Copyright 2023 by Creators Syndicate Inc.
The post Trump's Preposterous Defense in the Purloined Documents Case appeared first on Reason.com.
]]>Much of the banter surrounding the rise of China's electric vehicle (E.V.) industry and the implication for the global economy is misleadingly alarmist. When our government gets involved in such narratives, it calls into question the sincerity of its insistence that E.V.s are essential to an existential battle against climate change. If China's foray succeeds, the world gets cleaner cars and non-Chinese automakers are obliged to improve their own products.
A common concern among government officials is that while China faces strong headwinds, the country still might have what it takes to firm up its position and maintain dominance as an E.V. producer and exporter. Such worries aren't confined to U.S. officials. Governments around the world are melding to cut China out of the E.V. market.
I find it bizarre. We are constantly reminded of the importance of investing in green technology as the world faces a pressing need to reduce carbon emissions and combat climate change. By dispensing gargantuan subsidies to support both U.S. electric car production and purchases, the Biden administration clearly wants American voters to believe that it's taking climate change seriously and that more E.V.s are part of the answer.
We should rejoice in China's increased focus on electric cars, which reflects the global shift toward cleaner and more sustainable transportation. Better yet, Chinese E.V. manufacturers seem to have moved beyond merely imitating American and European automakers. Chinese automakers are now producing vehicles that can compete with top-tier Western competitors in large part because their cars are so much cheaper.
Of course, there are questions about whether China will be able to maintain its dominance in E.V. production. For one thing, its heavy-handed approach, known as industrial policy, has never improved the overall economy of any country. A myriad of subsidies and support to the Chinese E.V. industry could end up hurting it by making it less flexible and subject to mal- or overinvestment. Beyond a self-inflicted economic slowdown and major fiscal and demographic troubles, China is also facing rising hostility from foreign nations, which could cause real troubles for its E.V. industry.
Yet the question remains: Does China's current dominance in the E.V. market truly hurt us? After all, China is now producing lower-priced, decent-quality cars for consumers who, unlike Chinese citizens, aren't shouldering the costs of the subsidies propping up the industry. If anything, Americans should be upset that their access to these E.V.s is obstructed by a 27.5 percent tariff on Chinese-made cars imposed by former President Donald Trump's administration and maintained by President Joe Biden.
Rather than posing a national security threat, the growth of China's E.V. industry is an opportunity for global innovation. Its engagement in the sector adds significantly to the international exchange of ideas, technology, and expertise. Cross-border collaboration can accelerate the pace of innovation, benefiting not only China but the entire global electric car ecosystem. U.S., Japanese, and European innovators have successfully done this for decades but have not yet delivered enough affordable clean vehicles. This approach is far more constructive than viewing China's strides as a strategic problem and resorting to protectionist measures.
Furthermore, any related national security concerns are often rooted in misconceptions about the technologies themselves. It's important to differentiate between civilian and military technologies. E.V. manufacturing primarily involves civilian tech that's unlikely to have significant national security implications. The focus should instead be on enhancing international cooperation and dialogue to ensure that technologies with security implications are managed appropriately.
Finally, for all the alarmist talk from politicians about the threat of China's E.V. dominance, many of their own policy inconsistencies make truly cutting ourselves off from these vehicles unlikely. E.V. batteries require a lot of lithium. While the U.S. is home to huge lithium reserves, new mining here is frowned upon by local communities, leaving America with only one active mine producing a whopping 1 percent of the global lithium output.
Even if it weren't an uphill battle to mine much more, it would never be enough to satisfy all our needs. As such, we will likely continue to rely on some Chinese lithium batteries. China is also a manufacturing hub for many Western brands that rely on it to export to the rest of the world. All of this means that even if it were desirable, decoupling our economy from China is unlikely.
There are plenty of reasons why treating China's growing E.V. industry as a strategic problem is a narrow and counterproductive perspective, especially if we claim that fighting climate change is a priority.
COPYRIGHT 2023 CREATORS.COM.
The post Politicians Say They Want To Fight Climate Change. So Why Are They Fighting China on Electric Vehicles? appeared first on Reason.com.
]]>The betting odds say the next election will likely be a rematch between President Joe Biden and former President Donald Trump.
It's odd, since polls show most Americans don't like either man.
There are good reasons for that. My new video covers some of the worst.
Trump is simply mean. He humiliates people, taking pleasure in mocking them publicly.
In his real estate work, he's famous for not paying little people who work for him. He stiffed a cabinet-builder, a dishwasher, and a plumber. No one is too small to get bad treatment from Trump.
It's sad that today, America is so divided. Trump makes that worse.
Of course, Biden is divisive, too. Running for office, he promised, "I will draw on the best of us, not the worst."
But now that he's president, he does the opposite. He calls his opponents "full of anger, violence, hate, and division." This is drawing on "the best of us"?
Then there are the lies.
Trump lies even about unimportant things, like the crowd at his inauguration, ratings for his TV show, even claiming he won a nonexistent "Man of the Year" award.
And of course, he lies about the big things, like winning the last election "by a landslide."
But Biden lies, too. When Georgia required voters to show identification, Biden called that "Jim Crow on steroids." He said that again and again.
But that's a lie. Jim Crow stopped black people from voting. After Georgia's law passed, a poll found "zero percent of black voters said they had a poor voting experience."
Biden has long lied to advance himself. He claimed he was "the first in his family ever to go to a university." But he wasn't. He plagiarized that line from a British politician.
He lied about his law school performance, saying he graduated in "the top half of [his] class." He actually ranked 76th out of 85.
He repeatedly says he was arrested at a civil rights protest, but that's not true.
This year, one cruel lie caught up with him. For years, Biden insisted he had six grandchildren, refusing to acknowledge the seventh, his son Hunter's daughter, born out of wedlock. Only when even liberal media criticized him did he finally acknowledge the little girl.
Then there's the corruption.
I hate political prosecutions, but so much of what Trump does is just sleazy. He paid a porn star hush money and lied about it. He refused to return classified documents and lied about that. He pressured Vice President Mike Pence not to certify electors, then whipped his supporters into a frenzy about it.
But Biden is corrupt, too. Asked about his son's work in China, Biden firmly responded, "My son has not made money in…China."
But his son admits making money from China!
Biden claimed he "never discussed with my son or my brother or anyone else anything having to do with their business, period."
But his son's business partner says Hunter put his father on speakerphone when Hunter met with potential business associates.
Maybe Biden's lies aren't lies. Maybe he's just old and confused. But that's disturbing, too.
Recently he announced that the United States "plans to build a railroad from the Pacific all the way across the Indian Ocean." Across the ocean?
On 60 Minutes, he committed America to a possible war. Asked if "U.S. forces…would defend Taiwan in the event of a Chinese invasion," he responded "yes."
The president's national security adviser quickly took that back. But it was the fourth time Biden committed the U.S. to a war to defend Taiwan, and the fourth time his staff took it back.
Biden is 80. I'm old, too, but I just make videos. I'm not trying the be president.
Trump is old, too. He's 77 but calls himself "a young vibrant man." A few years ago, he got a doctor to approve a letter saying Trump would be "the healthiest individual ever elected!" That doctor later admitted that Trump wrote the letter himself.
These are our choices! Two old, corrupt liars? Can't we do better?
COPYRIGHT 2023 BY JFS PRODUCTIONS INC.
The post Both Biden and Trump Are Bad Candidates appeared first on Reason.com.
]]>The Biden administration escalated America's trade war with China on Wednesday, as President Joe Biden declared a new national emergency and immediately used it as the justification for creating a new screening system that will limit Americans' ability to invest overseas.
The new rules, which have been in development since last year, will prohibit private equity and venture capital firms from investing in China-based businesses working in a variety of high-tech fields, The New York Times reports. The ban will apply to businesses working to develop artificial intelligence and those that build or develop semiconductors, the tiny chips that power modern computers. American investments that flow to other Chinese businesses will also be subject to new government scrutiny.
All of that springs from a vaguely worded executive order issued Wednesday afternoon. In that order, Biden declared the "rapid advancement in semiconductors and microelectronics, quantum information technologies, and artificial intelligence capabilities" by "countries of concern"—China is not mentioned by name—to be a national emergency. In response to the newly declared national emergency, Biden directed the Commerce Department and Treasury to design new rules governing outbound investments.
Congress, of course, will not be involved in the process.
"This narrowly targeted action will complement our existing export control and inbound investment screening tools, and protect our national security while maintaining our longstanding commitment to open investment," the Treasury Department said in a statement.
Narrow or not, this is the first time that the U.S. government has targeted outgoing investments in such a manner. As I reported in a feature published in this month's issue of Reason, the effort appears to be modeled on a similar screening system for inbound investments that was created in the 1970s and recently given greater powers. Biden administration officials, including National Security Advisor Jake Sullivan and Treasury Secretary Janet Yellen, have in recent months talked about the desire to limit how private sector investments flow between the U.S. and China—often blurring the lines between economic and military concerns.
The idea to create an outbound investment screening mechanism, Yellen said in a speech in April, was "driven by straightforward national security considerations. We will not compromise on these concerns, even when they force tradeoffs with our economic interests."
Biden's executive order echoed that framing—acknowledging the importance of global trade, but then declaring that vague national security concerns must be valued as more important. "Open global capital flows create valuable economic opportunities and promote competitiveness, innovation, and productivity, and the United States supports cross-border investment, where not inconsistent with the protection of United States national security interests," the president wrote. "However, certain United States investments may accelerate and increase the success of the development of sensitive technologies and products in countries that develop them to counter United States and allied capabilities."
Wednesday's announcement by the White House is a significant expansion of what the U.S. government considers to be under the purview of national security. It is in some ways similar to how former President Donald Trump flexed his executive power to declare steel and aluminum imports to be national security concerns. In both cases, the government's definition of what's in America's national security interest has been stretched wider so officials can have greater control over the private transactions of businesses and individuals.
"For a long time, the U.S. national security community has been reticent to recognize the international financial system as a potential warfighting domain," Claire Chu, a senior China analyst at Janes (a defense intelligence company) told The New York Times on Wednesday. "And the business community has pushed back against what it considers to be the politicization of private markets. And so this is not only an interagency effort, but an exercise in intersectoral coordination."
The U.S. Chamber of Commerce and other entities have raised similar worries, as I reported in the piece for this month's issue of Reason. There are only two other countries—South Korea and Taiwan—that have outbound investment screening systems, making Wednesday's announcement yet another blow to the global norm of free-flowing capital.
Though the specifics of the outbound investment screening system remain to be seen, there's no doubt that Wednesday's announcement is a significant escalation of the ongoing political conflict between the world's two largest economies. It is likely to end up being a massive power grab aimed at severing the peaceful exchange of money and goods across national borders.
The post Biden Escalates Trade War With China appeared first on Reason.com.
]]>In this week's The Reason Roundtable, editors Matt Welch, Nick Gillespie, and Peter Suderman welcome special guest Jacob Sullum to wade through the latest Donald Trump indictments and Hunter Biden's legal woes.
1:11: Trump indictment roundup
24:18: Hunter Biden's plea deal
38:59: Weekly Listener Question
48:58: This week's cultural recommendations
Mentioned in this podcast:
"Trump's Alleged Cover-Up of His Cover-Up Reinforces the Obstruction Charges Against Him," by Jacob Sullum
"2 Reasons It's Not Clear That Trump 'Corruptly' Obstructed an Official Proceeding," by Jacob Sullum
"Here Is Why Trump's 'Contingent' Electors Say They Did Nothing Illegal," by Jacob Sullum
"How Hunter Biden's Plea Deal Fell Apart," by Jacob Sullum
"Hunter Biden Shouldn't Go to Prison for Violating an Arbitrary Gun Law," by Jacob Sullum
"Clark Neily: Regardless of Guilt, Trump Won't Go to Jail," by Nick Gillespie and Zach Weissmueller
"Trump's Impeachment Trial Will Only Make Us Hate Washington Even More," by Nick Gillespie
"Judge Napolitano: Enough Evidence 'to Justify About Three or Four Articles of Impeachment.'" by Nick Gillespie
"All Drug Offenders Should Be Treated Like Hunter Biden: Leniently," by Nick Gillespie
"Squirtle's seen some shit, man," tweets Nick Gillespie
"First Family Follies," by Nick Gillespie
"Andrew Tatarsky and Maia Szalavitz: How 'Harm Reduction' Is Transforming Drug Policy," by Nick Gillespie
"What Will the End of the Drug War Mean for Addicts? Look to Oregon," by Zach Weissmueller
"Ethan Nadelmann: Legalize ALL Drugs. NOW." by Nick Gillespie and Zach Weissmueller
Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.
Today's sponsor:
Audio production by Ian Keyser; assistant production by Hunt Beaty.
Music: "Angeline," by The Brothers Steve
The post Should Donald Trump and Hunter Biden Both Be Prosecuted? appeared first on Reason.com.
]]>During his CNN town hall in May, Donald Trump tried to explain why he had done nothing wrong by keeping thousands of presidential records, including more than 300 marked as classified, when he left office in January 2021. "I had the absolute right to do whatever I want with them," he declared. Under the Presidential Records Act, Trump claimed, he had complete discretion to decide which documents belonged in the National Archives and which he could retain as his personal property.
That argument is not only inconsistent with the plain text of the statute; it is highly implausible in light of the motivation for the law, which, as Trump himself contradictorily noted, was a response to Richard Nixon's similar assertion of control over presidential records. Yesterday the Justice Department unveiled a superseding indictment of Trump that suggests he ignored another lesson he could have learned from Nixon: It's not the crime; it's the cover-up.
The original indictment, dated June 8, made a strong case that Trump willfully obstructed efforts to recover the records he took. In particular, it presented evidence that he deliberately defied a May 2022 federal subpoena demanding that he turn over every document with classification markings that he still had at Mar-a-Lago.
The evidence of Trump's defiance includes notes taken by one of his lawyers, Evan Corcoran, indicating that Trump suggested they should conceal documents covered by the subpoena. It also includes Trump's instructions to one of his aides, Walt Nauta, who removed more than 30 boxes of records from the Mar-a-Lago storage room that Corcoran planned to search in response to the subpoena. And it includes a sworn statement from Trump's lawyers, allegedly based on information he gave them, assuring the Justice Department that he had turned over all the records demanded by the subpoena. That was not true, as the FBI confirmed when it searched Mar-a-Lago on August 8.
The first indictment included charges against Nauta for participating in the alleged conspiracy to conceal classified documents. The superseding indictment adds a new wrinkle, alleging an attempted cover-up of the cover-up.
The indictment names a new defendant, Mar-a-Lago property manager Carlos De Oliveira, who reportedly told another Trump employee, I.T. specialist Yuscil Taveras, that "the boss" wanted to delete surveillance camera video that would show Nauta and De Oliveira moving boxes out of the storage room. According to the indictment, Taveras responded that he did not know how to erase the footage and, in any case, did not think he had the authority to do so. He suggested that De Oliveira contact The Trump Organization's director of security. De Oliveira reiterated that "the boss" wanted the video deleted and asked, "What are we going to do?"
That conversation allegedly happened on June 27, 2022, five days after the Justice Department emailed the Trump Organization's lawyer a draft of a grand jury subpoena seeking "any and all surveillance records, videos, images, photographs and/or CCTV from internal cameras" recorded since January 10, 2022, at various Mar-a-Lago locations, including the area of the storage room. The indictment notes that Trump called De Oliveira the day after that email and spoke to him for 24 minutes. That conversation, the indictment implies, was the source of the evidence-concealing instruction that De Oliveira tried to carry out.
In the end, the footage was not deleted, which is why the Justice Department was able to obtain much of the evidence cited in the indictment via the subpoena, which arrived in its final form on June 24, 2022. But the alleged attempt to destroy that evidence is the basis for two of the new counts in the superseding indictment.
Count 40 says Trump, Nauta, and De Oliveira "did knowingly [and] corruptly persuade and attempt to persuade another person, with intent to cause and induce [that] person to alter, destroy, mutilate, and conceal an object with intent to impair the object's integrity and availability for use in an official proceeding." That happened, the indictment says, when the three men asked Taveras to "delete security camera footage at the Mar-a-Lago Club to prevent the footage from being provided to a federal grand jury." Based on the same conduct, Count 41 says Trump et al. attempted to destroy the video, a distinct offense that does not necessarily involve persuasion of another person.
Those alleged crimes are felonies punishable by up to 20 years in prison. So are the three other obstruction charges against Trump, which involve his attempts to hide classified documents.
Trump also is charged with 32 counts of willfully retaining "national defense information," each of which corresponds to a specific document he kept. Each of those counts is punishable by up to 10 years in prison.
Those charges include a new count based on a top-secret document concerning potential military action against Iran that Trump allegedly waved around during a July 2021 meeting at his golf resort in Bedminster, New Jersey, with researchers working on former White House Chief of Staff Mark Meadows' memoir. In a recording of that conversation, Trump says, "I have a big pile of papers, [and] this thing just came up. Look." He describes the document as "highly confidential" and "secret information," adding that "as president, I could have declassified it," but "now I can't," so "this is still a secret."
In a Fox News interview with Bret Baier last month, Trump put an implausible spin on that episode. Contrary to what he said at the time, he claimed that he never actually held up a classified document. "There was no document," he said. "That was a massive amount of papers and everything else talking about Iran and other things. And it may have been held up or may not, but that was not a document. I didn't have a document per se. There was nothing to declassify. These were newspaper stories, magazine stories, and articles."
According to the indictment, however, the Justice Department has identified the document in question, which it describes as a "presentation concerning military activity in a foreign country." Trump retained the document, it says, from January 20, 2021, until January 17, 2022, the day that he surrendered 15 boxes of records to the National Archives.
Still, proving that Trump willfully retained national defense information requires more than showing that he kept classified material. It requires persuading a jury that Trump had "reason to believe" that the documents "could be used to the injury of the United States or to the advantage of any foreign nation." While that seems plausible based on the indictment's cursory descriptions of the documents, it remains unclear to what extent Trump's actions actually endangered national security, especially given the widely acknowledged problem of overclassification. Convicting Trump will require more evidence about the contents of the documents, which will lead to much wrangling over how much classified information can be safely divulged to the jury.
The obstruction charges, by contrast, do not hinge on the nature of the records that Trump kept. If the prosecution can show that Trump deliberately hid the documents, deliberately defied one federal subpoena, and deliberately tried to frustrate another, that would amount to obstruction, regardless of how sensitive the material was.
To rebut those allegations, Trump's lawyers will have to argue that he had no criminal intent when he talked to Corcoran, when he had boxes of documents moved in and out of the storage room, or when he gave whatever information Corcoran relied on when he concluded that his "diligent search" had discovered all of the remaining classified records. They may also question whether De Oliveira was acting on explicit instructions from Trump when he tried to delete the surveillance footage, as opposed to drawing a mistaken inference about what "the boss" wanted.
Depending on the contrary testimony or other evidence they can muster to poke holes in the government's story, Trump's lawyers may be able to create reasonable doubt as to whether there could be innocent explanations for the seemingly obstructive conduct described in the indictment. But based on what we know now, the obstruction charges seem like the most serious threat to Trump's continued freedom.
The post Trump's Alleged Cover-Up of His Cover-Up Reinforces the Obstruction Charges Against Him appeared first on Reason.com.
]]>Proponents of the ongoing push for national industrial policy, whether they come from the left or the right, frequently argue that we need to promote certain sectors or technologies to create a manufacturing boom. This boom, we're told, is necessary to create more high-paying jobs. But I beg to differ. Industrial policy isn't and shouldn't be primarily about creating jobs. Its primary purpose, if it should exist at all, lies elsewhere.
The ultimate objective of an economy is not to provide jobs per se, but to improve overall living standards. This happens with an ever-increasing availability of quality goods and services that people voluntarily purchase to enrich their lives. Good jobs are a means to this end; they are not the end itself. This reality is easily proven by asking someone who loves his job if he'd continue to do it if it paid nothing. Virtually everyone's honest answer would be no.
Now, don't get me wrong: This requires spending power, and employment is how most of us get that, so the value of employment as a means is high. But it's still a means. If new jobs were truly the only ends, the government could simply pay one-half of the population to produce outputs and pay the other half to destroy those outputs.
Obviously, any plausible justification for industrial policy must include more than job creation. Interventions are often done in the name of national security. This, for example, is the point of the CHIPS Act, which allocates over $50 billion in subsidies to reshore the production of semiconductors away from Taiwan in the event that China decides to invade its neighbor.
Leaving aside the fact that national security is too often and too easily used to justify economic interventions that have little to do with foreign threats, the argument reveals why industrial policy is no tool of job creation.
Think about it this way: Government favoritism in the form of subsidies, tariffs, and other interventions allocates resources (labor and capital) differently than the way resources are allocated by consumers spending their own money. Ordinarily, businesses—spending their investors' money—compete for these consumer dollars. Industrial policy rests on the assumption that such market outcomes don't adequately support higher causes such as national security. If that's true, it's all the justification industrial policy needs. Nothing needs to be said about jobs.
Nor should it. I'm skeptical that industrial policy will really spark a manufacturing boom in the first place. First, subsidies, tax credits, and government loans often end up paying firms to do what they were already doing. In addition, government favors tend to reallocate resources politically and not in ways that truly further the national interest. That means shifting resources away from some non-subsidized businesses toward subsidized ones, independently of their economic merit.
Second, the United States doesn't make these decisions in a vacuum. As Scott Foster explains in the Asia Times, "the globalization of production capacity and new technology development is accelerating away from the United States," in part because "Europe, Taiwan, South Korea and Japan want to keep their leading-edge technologies at home."
Finally, the Biden administration's generous subsidies often come with complications like requiring firms to provide expensive child care or buy American. And to stay friends with European governments, the administration eased requirements that to be eligible for Inflation Reduction Act incentives, electric vehicles should be assembled in North America and exclude critical mineral or battery components from "foreign entities of concern" (i.e., China).
Even if today's industrial policy does trigger an industrial boom, we shouldn't expect a corresponding manufacturing job boom. As Noah Smith reminded his readers in a recent blog post, "Most of the actual production work will be done by robots, because we are a rich country with very high labor costs and lots of abundant capital and technology. Automated manufacturing is what we specialize in, not labor-intensive manufacturing."
The best job creation policy is a strong economy. The government should be content to create a level playing field with transparent rules and strong protection of property and contract rights. Of course, it should also supply public goods like infrastructure and ensure a stable legal system.
Be wary of those who push industrial policy as a means of job creation. It's a short-sighted approach that distracts us from the more important question, which is whether hindering the market allocation of resources is truly justified for national security or other valid reasons.
COPYRIGHT 2023 CREATORS.COM.
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]]>Journalists aren't always consistent fans of liberty; over a century ago, The New York Times editorialized against self-defense rights—a tradition it continues today. Still, in the past when there was more ideological variety among elite media than now (a flaw alternative outlets seek to address), reporters from all sorts of publications generally favored free speech, opposed broad surveillance, and supported restrictions on search and seizure. If nothing else, they knew they were high on the list of targets for abusive officials. But that was then; now, elite media love Big Brother.
On Independence Day, U.S. District Court Judge Terry Doughty issued a powerful First Amendment decision in an ongoing case brought by the attorneys general of Missouri and Louisiana. "If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States' history" he said of government pressure on social media companies to suppress speech at odds with official messaging. The judge barred further arm-twisting, though with significant exceptions. It was a clear win for free speech, which you would expect to be applauded by people who make their living from speaking and writing. That's not what happened.
"The Donald Trump-appointed judge's move could undo years of efforts to enhance coordination between the government and social media companies," The Washington Post huffed in its report.
The "ruling that could curtail efforts to combat false and misleading narratives about the coronavirus pandemic and other issues," agreed The New York Times. Apparently, government officials are entitled to decide what constitutes truth and falsehood.
On July 5, Reason's Matt Welch appeared on a CNN panel discussion of the case to take the minority view (among the participants) that it's actually bad when governments muzzle views they don't like.
"We have a legal category of journalists for more speech regulation. It's just bizarre to me," he said.
Journalists for more speech regulation are eyeing podcasts, too, through which "misinformation about everything from election fraud to Covid-19 vaccines is reaching millions of Americans," according to Agence France-Presse. The problem is that "anybody can be a podcaster, anybody can get a microphone and start talking about whatever they want" we're warned in a piece that again assumes accusations of "misinformation" are the same as proof.
It's not just speech, either. On July 3, The New York Times weighed in on the continuing debate over domestic surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Act. The Gray Lady's take on legal snooping provisions specifically called out as dangerous by whistleblower Edward Snowden is that (did you see this coming?) they're in peril from overwrought lawmakers.
"An intensive drive by right-wing Republicans in Congress to vilify the F.B.I. with charges of political bias has imperiled a program allowing spy agencies to conduct warrantless surveillance on foreign targets, sapping support for a premier intelligence tool and amplifying demands for stricter limits," wrote the Times's Karoun Demirjian.
The report went on to allow that many Democrats also oppose Section 702 and spying that often ensnares Americans. But the piece's overall framing is of necessary legislation freshly at-risk from "a new generation of Republicans less protective of Washington's post-9/11 counterterrorism powers."
We should have anticipated this moment. In 2013, even as the paper's own reporters helped publicize Snowden's revelations about the surveillance state, The Washington Post editorial board sniffed that "the first U.S. priority should be to prevent Mr. Snowden from leaking information that harms efforts to fight terrorism and conduct legitimate intelligence operations." All of this journalism is fine and dandy, they suggested, but it's inconvenient for the nice people in government office.
In fact, that's probably a fair assessment of the attitude of name-brand journalists towards their friends who wield coercive power—and they are friends, if not more.
"The flow of faces and names between government and 'news' media has turned what was supposed to be a watchdog over the destructive power of the state into little more than a forum for political marketing and an extended battleground for factional fighting," I noted in 2019. In particular, Politico media writer Jack Shafer observed in 2018, TV news networks are heavily leavened with former (and often future) security state apparatchiks. "Almost to a one, the TV spooks still identify with their former employers at the CIA, FBI, DEA, DHS, or other security agencies and remain protective of their institutions" Shafer wrote. "This makes nearly every word that comes out of their mouths suspect."
Many elite journalists can get quotes from politicians across the breakfast table. CNN's Christiane Amanpour married former Assistant Secretary of State James Rubin, MSNBC's Andrea Mitchell married former Federal Reserve Chairman Alan Greenspan, and Joe Scarborough (formerly a congressman) married co-host Mika Brezezinski (daughter of a former national security advisor). The Washington Post's Matea Gold is married to FBI chief of staff Jonathan Lenzner. "What to make of all the family ties between the news media and the Obama administration?" The Washington Post's Paul Farhi asked a decade ago in a query that could be posed continuously about government and media in general.
Prominent journalists and government officials often meet not on the job, but in the college dorm. "Forty-one percent of senior- or mid-level Biden White House staffers — or 82 people out of 201 aides analyzed — have Ivy League degrees," Politico reported in 2012. That expands on dominance by elite colleges dating back at least to JFK. And many faces those Ivy League grads saw in the White House press room were familiar. "Almost half of the people who reach the pinnacle of the journalism profession attended an elite school," found a 2018 paper in the Journal of Expertise focused on The Wall Street Journal and The New York Times. "Roughly 20% attended an Ivy League school."
To a great extent, interactions between prominent reporters and powerful officials are like private parties that never end. These people know each other, drink with each other, share attitudes, marry, and trust each other. Elite journalists have few doubts about the wisdom of their friends, for whom they do glorified public relations, to censor, spy, and coerce. About the rest of us… Who are we, anyway? Better to be safe and encourage the folks they know to keep a cap on the unseemly mob.
Let's emphasize that "elite journalists" doesn't mean the folks struggling to keep your local paper alive, or determined bloggers covering official malfeasance, or reporters at alternative outlets competing with brand-name operations. They represent a range of views, often–strained relationships with the powerful, and are as vulnerable as you or I to the civil liberties violations championed by legacy media outlets.
But prominent journalists have become cheerleaders for Big Brother because they like and trust his minions more than they care about you and me. If you want support for freedom instead of authoritarianism, or even just skepticism about unrestrained government, look to reporters who aren't so enmeshed with those who wield power.
The post Elite Journalists Love Big Brother appeared first on Reason.com.
]]>If there's one thing Republicans and Democrats tend to agree on, it's that China has become America's most dangerous geopolitical adversary. But, as Washington Post columnist Catherine Rampell explains in a recent article, we are shooting ourselves in the foot in this competition by severely restricting Chinese immigration to the US. Opening our doors is an easy way to strengthen the US at Xi Jinping's expense:
Whatever the specificmotivations, the number of people leaving China and seeking to make (or invest) their fortunes abroad is rising again, according to data from the U.N. Population Division….
China's loss presents a huge opportunity for the United States…..
Immigrants have long been the lifeblood of the U.S. economy and innovation. For more than a century, we have benefited from waves of peopleleaving difficult conditions in their home countries. In fact, the U.S. government has often worked hard to poach the top talent of our geopolitical adversaries. During the mid-20th century, for instance, we took in scientists from Germany (both those who worked for the Nazis and those persecuted by them); and part of our Cold War policy included siphoning off Soviet superstars.
These and other immigrants turned out to be productive workers, who in turn made our own homegrown workers more productive. This served our interests economically, militarily and geopolitically. It's great marketing for Western democratic values, after all, to be a desirable destination for your rivals' top talent….
Plus, bringing this coveted talent here means that same talent is not available there.
For all these reasons, I've previously argued for exploiting Russia's brain drain. The same arguments apply to China, too. Perhaps especially to China, given that U.S. political leaders openly fear being surpassed by Chinese innovation or getting locked out of global supply chains that intersect with China….
But however much money we throw at semiconductor or battery manufacturing, we will struggle to achieve our own ambitions if we lack the talent to build and operate those high-tech facilities, as we now clearly do. As Cato Institute scholar Scott Lincicome put it: You can be a China hawk or you can be an immigration hawk, but you can't really be both.
I have made similar arguments with respect to Chinese migration here and here. As Rampell notes, most of the same points apply to Russian migration, as well. In both cases, we can simultaneously bolster our economy, weaken an adversary, and score valuable points in the international war of ideas against dictators like Vladimir Putin and Xi Jinping. The latter can't credibly claim their authoritarian regimes are the wave of the future if millions of their people "vote with their feet" for our system over theirs.
The security risk argument against doing this is overblown (Chinese immigrants actually have a lower rate of espionage than the US population as a whole), and easily managed by steps like limiting access to classified information.
Sadly, as Rampell points out, the political winds are actually blowing in the wrong direction on this:
Right now, nervous Chinese professionals and entrepreneurs are streaming to Singapore and other countries. The United States should be encouraging them to bring their talents here instead. Unfortunately, we've mostly done the opposite.
Some U.S. senators, for instance, have pushed to deny visas to Chinese citizens who want to come to the United States to study science, citing supposedly unmanageable national security risks (even though no one is suggesting visiting foreign nationals, from any country, go unvetted). Scholars of Chinese descent already here are reportedly choosing to leave tenured jobs at U.S. institutions, citing a hostile political and cultural environment…
Even some state governments are getting in on the red-baiting. Florida recently passed a law banning Chinese nationals from buying property, with several other states following suit.
In addition to the economic and national security advantages of opening doors to Chinese immigration, there is also a great moral benefit: freeing large numbers of people from horrific authoritarian oppression. Chinese seeking freedom should not be forcibly confined in an increasingly repressive dictatorship merely because they were born in the wrong place or to the wrong parents.
As in the case of Russians, it is wrong to claim Chinese should be kept out because they have some kind of collective responsibility for the evil perpetrated by their government. The same goes for claims they have a moral duty to stay home and "fix their own country."
During the Cold War, US policymakers - including many conservative Republicans - understood the economic, security, and moral benefits of openness to migration from hostile communist nations. Sadly, that common-sense wisdom has faded, especially - though certainly not exclusively - on the political right. It's long past time we rediscover it.
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]]>European Union lawmakers say the European Media Freedom Act will give reporters greater protections. But a draft of the measure includes provisions allowing governments to insert spyware into the electronic devices of journalists if they are suspected of communicating with criminals or imperiling national security. The drive to include that provision was led by the government of France.
The post Brickbat: I Spy appeared first on Reason.com.
]]>This week, while we celebrate the work of America's Founders, I honor a living freedom fighter: billionaire businessman Jimmy Lai.
When Communist China crushed freedom in Hong Kong, Lai could have gone anywhere in the world and lived a life of luxury. But he chose to stay in Hong Kong and go to jail.
A new documentary, The Hong Konger, tells his story.
Lai grew up in poverty in China.
"My mother was [imprisoned] in a labor camp," he recalls. "We were just 5 or 6 and managing ourselves without an adult in the household. When I was 8 and 9, I worked in the railway station carrying people's baggage."
There he learned about a little British-controlled island near China called Hong Kong, where people were less poor. So he went there "in the bottom of a fishing junk, together with maybe 100, maybe 80, people, and everybody vomiting."
Once in Hong Kong, he was amazed at how plentiful food was. "I never saw so many things for breakfast. I was so moved. I was crying."
He got a job in a sweatshop. "We had to wake up before 7 and worked until 10 p.m. But it was a very happy time…a time that I know I had a future."
The chance to have a future makes such a difference.
At the time, Hong Kong was an unusually free country. Police enforced law and order, but otherwise, the British rulers left people alone. That allowed people to prosper.
"The British gave us the institutions of freedom," says Lai. "Rule of law, free speech, the free market…. That created the best in the world. That was very enlightening for me."
Lai eventually saved enough money to start a clothing business. "I started a very small factory. Eventually we became one of the biggest sweater factories in Hong Kong." Gradually, his clothing business, Giordano, made him rich.
Lai assumed that the Communist Chinese, seeing the prosperity in Hong Kong, would leave the island alone. After all, even the Communists were embracing some capitalism.
"I thought China is going to be changed," says Lai. "China is going to be like Western country that I've been to. I was very excited."
But then came the Tiananmen Square massacre. That inspired Lai to start a media company. Media are important, he said, because they deliver information, "which is choice, and choice is freedom."
Lai's media business thrived. He covered Chinese government abuses when other Hong Kong media wouldn't. "Everybody was so chickened out, so scared. They went into self-censorship to avoid offending the Communists."
Even foreign investors kept quiet to protect their investments in China.
Then, in 2020, China passed a "national security" law that declared it illegal for Hong Kongers to criticize the Chinese government.
"It became impossible for media to survive!" complained Lai. "Whatever we say can be sedition."
A conviction for sedition would mean jail time, three years to life.
But Lai kept his paper open.
"If we just surrender," he said, "we will lose the rule of law. Lose the freedom. We will lose everything."
Hong Kong did lose its freedom, but Lai still refused to leave. "I came here without anything…. I owe freedom my life…. Don't think about the consequences. Do what is right."
For publishing the truth about the Communist government, Lai was arrested and sentenced to five years in jail. Chinese officials say they may add more years.
Still, Lai says he doesn't regret his decision to stay.
"It would be so boring just being a businessman. I want to make my life more meaningful and interesting. That's why I got into the trouble I got into today. And I'm happy to have it."
Happy?
Jimmy Lai is a remarkable man, and a hero of freedom.
You can watch the whole documentary about him at FreeJimmyLai.com.
COPYRIGHT 2023 BY JFS PRODUCTIONS INC.
The post 'I Owe Freedom My Life': Jimmy Lai Is Imprisoned for Criticizing the Chinese Government appeared first on Reason.com.
]]>Donald Trump picked William Barr as his second attorney general largely because Barr had criticized Special Counsel Robert Mueller's investigation of alleged ties between Russia and the Trump campaign. Barr still agrees with Trump that the Russia probe was a "witch hunt."
The former attorney general takes a strikingly different view of the federal indictment against Trump that was unsealed this month, which Barr calls "very, very damning." In contrast with many other prominent Republicans, Barr says the outrage is not the indictment but the "reckless conduct" that prompted it.
Like Trump's claim that the 2020 presidential election was rigged, his retention of government records after he left the White House presents Republicans with a choice. They can risk the wrath of Trump's supporters by acknowledging reality, or they can play it safe by embracing his delusions.
Barr has rejected the latter course since December 1, 2020, when he said the Justice Department had not seen "anything to substantiate" Trump's story of systematically corrupted voting machines or any other evidence of "fraud on a scale that could have effected a different outcome in the election." Around that time, Barr later recalled, he repeatedly told Trump such claims were "bullshit."
Barr likewise has little patience for Trump's assertion that he had "the absolute right to do whatever I want" with the thousands of presidential records he took with him when he left office, which included more than 300 marked as classified. "He had no right to those documents," Barr said on Face the Nation this week. "He had no legal basis for keeping them."
Many Republican legislators have portrayed the criminal charges related to Trump's handling of those records as a politically motivated attack on Joe Biden's likely 2024 opponent. But as Barr noted, Trump "provoked this whole problem himself" by refusing to return the documents.
"The government tried for over a year, quietly and with respect, to get them back, which was essential that they do, and he jerked them around," Barr said. Trump remained recalcitrant even when he faced a federal subpoena seeking all the documents with classification markings stored at Mar-a-Lago.
"He didn't raise any legal arguments," Barr noted. Instead, according to the indictment, "he engaged in a course of deceitful conduct" aimed at hiding records covered by the subpoena. "If those allegations are true," Barr said, Trump's conduct was "outrageous" and "a clear crime."
Barr called the evidence supporting the charges against Trump, which include obstruction of justice and willful retention of national defense information, "very strong," noting that much of it "comes from his own lawyers." Trump lawyer Evan Corcoran's notes, for example, indicate that his client was inclined to defy the subpoena.
Consistent with that impression, Trump had boxes moved out of a Mar-a-Lago storage room before Corcoran could search them for relevant documents. Barr said he also believes Trump lied to the Justice Department by averring that he had fully complied with the subpoena—another crime listed in the indictment.
Trump has claimed every document he removed was "automatically declassified"—perhaps by a "standing order," perhaps just "by thinking about it," perhaps by the very act of removal. As Barr has previously noted, such claims are "highly improbable" and suggest a cavalier attitude toward national security. In any case, they are irrelevant under the statute dealing with national defense information, a category that can include unclassified material.
Trump also has argued that the Presidential Records Act gave him complete discretion to claim documents as his personal property. That legal theory is "absurd," Barr noted, because "the whole purpose of the statute" is to "stop presidents from taking official documents out of the White House."
Trump, whom Barr likened to "a defiant 9-year-old kid," bridled at the legal restrictions on his acquisitive impulses, insisting that no one had any business going through "my boxes." Barr is clearly correct when he observes that the case against Trump is "entirely of his own making."
© Copyright 2023 by Creators Syndicate Inc.
The post The Federal Case Against Trump Is 'Very Strong,' His Former Attorney General Says appeared first on Reason.com.
]]>On Sunday, The New York Times floated a very important question on Twitter: Why was Donald Trump hoarding boxes of national security documents at his Mar-a-Lago resort? And what could possibly explain his intense resistance to giving them back?
For all the detailed evidence in the indictment accusing Donald Trump of holding onto classified documents and obstructing the government's efforts to retrieve them, one mystery remains: Why did he take them and fight so hard to keep them? https://t.co/MlPsooGcdZ
— The New York Times (@nytimes) June 10, 2023
Now, far be it for me to criticize the paper of record's reporting, but last year I made a throwaway joke that solved the mystery. I would like to introduce you all to an advanced political theorem known as "my boxes."
Former American Conservative columnist Rod Dreher had asked last year, around the time of the Mar-a-Lago raid, what reason Trump could possibly have for refusing to return the boxes. It was somewhat of a hobby among the professionally credulous to wonder what machinations could be behind Trump's decision to hold on to these boxes, despite legal peril. Among some resistance liberals, there were unsupported accusations that Trump may have been selling classified documents or using them for nefarious purposes.
Then, in a joking back-and-forth with The Bulwark's Sonny Bunch, I offered a fictional conversation between Trump and an aide that would tidily sum up the former president's motivations and legal theories:
For the past year since then, whenever a new bit of information dribbles out about the case, someone on Twitter alerts me that another point has been scored for "my boxes."
All of the substantive reporting, as well as the recently filed indictment, has backed up the "my boxes" hypothesis. In August, The New York Times reported that Trump told several advisers, in response to the National Archives' demands that he return the boxes: "It's not theirs; it's mine." The Washington Post reported in November that "Trump repeatedly said the materials were his, not the government's—often in profane terms."
This April, Fox News' Sean Hannity tried to tee up a softball for Trump, saying he couldn't imagine the former president saying, "Bring me some of the boxes that we brought back from the White House, I'd like to look at them." But Trump insisted that he would.
"I would have the right to do that," Trump replied. "I would do that."
According to the 37-count indictment filed in federal court against Trump this week, he told one of his long-suffering attorneys: "I don't want anybody looking, I don't want anybody looking through my boxes, I really don't, I don't want you looking through my boxes."
"My boxes" has always been the simplest, most durable explanation for Trump's behavior. He took the boxes because he likes boxes of stuff, and he refused to give them back for the same reason. He has a toddler's conception of property and a similar developmental level of excitement for show-and-tell. (Kid Rock allegedly got a glimpse of national security documents when he met with Trump.) All of which is how you end up with descriptions of America's nuclear capabilities sitting in a box in a South Florida bathroom.
The post The 'My Boxes' Theory Is All You Need To Explain Trump's Behavior appeared first on Reason.com.
]]>Donald Trump's federal indictment sheds light on two crucial questions about the presidential records he took with him when he left office in January 2021: How sensitive was this material, and what was Trump's intent in retaining it? Both points are relevant to the criminal charges that were announced last week.
Trump faces 31 counts of willfully retaining national defense information, each of which corresponds to a specific document described in the indictment. The relevant statute, 18 USC 793, covers "information relating to the national defense" that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."
According to the indictment, all of the listed documents fell into that category. All but one of them were marked as "secret" or "top secret," and many of them bore additional labels, such as "SI" (special intelligence), "SPECIAL HANDLING," and "NOFORN" (not releasable to foreign nationals). But classification markings are neither necessary nor sufficient to establish that a document qualifies as national defense information under 18 USC 793.
Notably, one of the 31 records mentioned in the indictment, described as an "undated document concerning military contingency planning of the United States," bore "no marking." The Justice Department nevertheless alleges that it "could be used to the injury of the United States" or the advantage of a foreign country. Conversely, given the widely recognized problem of overclassification, a document marked as "secret" or "top secret" might not be covered by 18 USC 793, either because it never should have been classified or because the justification for that decision no longer applies.
The soundness of classification decisions is hard to assess without details that we are not allowed to know. But the indictment's general descriptions at least make it plausible that some of the documents Trump retained were deemed secret for good reason. They included, for example, a "document dated June 2020 concerning nuclear capabilities of a foreign country"; a "document dated October 4, 2019, concerning military capabilities of a foreign country"; an "undated document concerning military attacks by a foreign country"; an "undated document concerning military capabilities of a foreign country and the United States"; a "document dated January 2020 concerning military options of a foreign country and potential effects on United States interests"; and a "document dated November 7, 2019, concerning military activity of foreign countries and the United States."
More generally, the indictment says the documents that Trump kept "included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack." It adds that "the unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military [and] human sources, and the continued viability of sensitive intelligence collection methods."
On the face of it, it seems plausible that careless handling of such documents might expose information, including information about intelligence sources, that could undermine national security. And we know that Trump was, at the very least, careless. That much is reflected in the indictment's photographs of document boxes that were kept in unauthorized and unsecured locations at Mar-a-Lago, including a storage room, a bathroom, an office, a bedroom, and the stage of a ballroom where "events and gatherings took place."
But did Trump "willfully" retain national defense information? "We have seen absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws," Trump's lawyers said in an April 26 letter to the House Intelligence Committee. "Rather, all indications are that the presence of marked documents at Mar-a-Lago was the result of haphazard records keeping and packing by White House staff and [the General Services Administration]."
Such sloppiness could explain the presence of secret material in the boxes shipped to Mar-a-Lago. But the indictment presents substantial evidence that Trump knew he had classified documents and deliberately resisted the government's efforts to recover them.
In July 2021, Trump was interviewed at his golf club in Bedminster, New Jersey, as part of the research for former White House Chief of Staff Mark Meadows' memoir. Trump was irked by press reports that Joint Chiefs of Staff Chairman Mark Milley had restrained him from taking military action against Iran toward the end of his presidency. To rebut that narrative, Trump presented what he described as Milley's "plan of attack" for Iran.
"He said that I wanted to attack Iran," Trump said, according to the indictment, which quotes an audio recording of the Bedminster interview. "Isn't it amazing? I
have a big pile of papers, [and] this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This
was him. This was the Defense Department and him."
Trump described the document as "highly confidential" and "secret information." As president, he added, "I could have declassified it," but "now I can't," so "this is still a secret."
A month or two later, the indictment says, Trump met with a representative of his political action committee at the Bedminster club. Trump "commented that an ongoing military operation in Country B was not going well." Then he allegedly "showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close." The indictment notes that "the PAC Representative did not have a security clearance or any need-to-know classified information about the military operation."
The indictment contrasts Trump's sloppy handling and gratuitous use of classified records with his prior statements about the importance of guarding state secrets. During his 2016 campaign, for example, Trump repeatedly slammed Hillary Clinton for her careless handling of emails containing classified information when she was secretary of state. He promised that he would be much more careful.
"In my administration, I'm going to enforce all laws concerning the protection of classified information," Trump said in August 2016. "No one will be above the law." The next month, he warned that "we can't have someone in the Oval Office who doesn't understand the meaning of the word confidential or classified." He promised to "enforce all classification rules" and "enforce all laws relating to the handling of classified information." He said he would provide "the best protection of classified information."
In February 2017, then-President Trump decried the "illegal process" by which reporters gain access to classified information. "The press should be ashamed of themselves," he said. "But more importantly, the people that gave out the information to the press should be ashamed of themselves. Really ashamed."
Although Trump was well aware of the restrictions on access to classified documents, in other words, he flouted the rules he said were essential to protecting national security. According to the indictment, Trump also impeded the Justice Department's attempts to recover those documents.
After the National Archives and Records Administration discovered classified material in 15 boxes that Trump surrendered a year after leaving office, the Justice Department launched an investigation. That led to a May 11, 2022, grand jury subpoena demanding the return of all documents with classification markings that remained at Mar-a-Lago.
Twelve days later, Trump met with two of his lawyers to discuss the subpoena. According to the indictment, notes taken by one of those lawyers, Evan Corcoran, indicate that Trump was inclined to defy the subpoena. In "sum and substance," the indictment says, he made comments like these:
"I don't want anybody looking through my boxes. I really don't. I don't want you looking through my boxes."
"What happens if we just don't respond at all or don't play ball with them?"
"Wouldn't it be better if we just told them we don't have anything here?"
"Isn't it better if there are no documents?"
Trump nevertheless agreed to let Corcoran look through the boxes in the Mar-a-Lago storage room on June 2. In the meantime, according to the indictment, Trump aide Walt Nauta, under his boss's direction, moved "approximately 64 boxes" from the storage room to Trump's residence at Mar-a-Lago. As of June 2, Nauta (who also was charged in last week's indictment) had returned "only approximately 30 boxes" to the storage room.
Corcoran's search of those boxes turned up 38 classified records, which he placed in a Redweld folder that he sealed with clear duct tape. While discussing where to store the folder until it could be delivered to the Justice Department, according to Corcoran, Trump "made a funny motion as though [he were saying,] 'Well, OK, why don't you take them with you to your hotel room, and if there's anything really bad in there, like, you know, pluck it out.' And that was the motion that he made. He didn't say that."
The next day, Corcoran asked another Trump lawyer, Christina Bobb, to sign a sworn certification saying that "a diligent search was conducted of the boxes that were moved from the White House to Florida"; that the search was aimed at finding "any and all documents that are responsive to the subpoena"; and that "any and all responsive documents accompany this certification." Bobb said those statements were "based upon the information that has been provided to me." She signed the statement as the "custodian of records" for Trump's office even though she had not reviewed the subpoena, had not participated in the box search, and had not examined the contents of the folder.
Corcoran gave that statement to the Justice Department when he surrendered the folder on June 3, 2022. But the FBI suspected, based partly on surveillance video that showed Nauta moving boxes around, that Trump had not delivered all of the documents covered by the subpoena. The FBI's August 8 search of Mar-a-Lago confirmed that suspicion, discovering 102 additional classified documents in the storage room and in Trump's office.
When the Justice Department revealed what had happened after it served the subpoena, it looked like Corcoran and Bobb had misled the government. Based on the evidence described in the indictment, however, it looks like Corcoran made a good-faith effort to comply with the subpoena but was frustrated by the movement of boxes, which Trump and Nauta did without notifying Corcoran.
Trump's response to the subpoena not only supports the charges related to willful retention of national defense information. It also supports the charge that he and Nauta conspired to obstruct justice. More specifically, they are accused of conspiring to "corruptly conceal a record, document, or other object from an official proceeding." The alleged conspiracy also involved "engag[ing] in misleading conduct toward another person and corruptly persuad[ing] another person to withhold a record, document, or other object from an official proceeding." Other charges against Trump and Nauta involve specific acts related to the conspiracy, including false statements to the FBI and obstructing a federal investigation by concealing documents.
Although we know more about the classified records than we did before, it remains unclear exactly how sensitive they were. But all of the charges against Trump involve conduct that goes beyond carelessness or negligence. Even if Trump initially removed classified documents from the White House by accident (as his lawyers have suggested), it is clear he eventually realized that purported error. But far from trying to correct it, he seems to have intentionally impeded the Justice Department's attempts to recover the records, which by his own account he viewed as his personal property.
The post Trump's Federal Indictment Presents New Evidence of Deliberate Deceit and Obstruction appeared first on Reason.com.
]]>In this week's The Reason Roundtable, editors Matt Welch, Katherine Mangu-Ward, Nick Gillespie, and Peter Suderman break down the latest indictment of former President Donald Trump associated with the collection of classified documents in his Mar-a-Lago home.
0:21: Donald Trump indicted again
31:59: Weekly Listener Question
40:57: Senseless constitutional amendments
49:18: This week's cultural recommendations
Mentioned in this podcast:
"Trump's Own Attorney General Says Indictment Is 'Very, Very Damning,'" by Robby Soave
"Donald Trump Indicted on More Than 30 Charges in Classified Documents Case," C.J. Ciaramella
"Trump Indicted, Faces Federal Criminal Charges Under Espionage Act," by Elizabeth Nolan Brown
"Trump's New York Indictment Was Just the Beginning of His Legal Woes," by Eric Boehm
"Trump's Impeachment Trial Will Only Make Us Hate Washington Even More," by Nick Gillespie
"Let Us Now Thank Donald Trump for Revealing Brutal Truths About How Power and Privilege Operate," by Nick Gillespie
"All This Impeachment Talk Is Pure Trump Derangement Syndrome," by Nick Gillespie
"FBI Director Recommends Against Prosecuting Hillary Clinton Over Email Actions," by Nick Gillespie
"Trump Reportedly Viewed a Supposedly Declassified Document As a Secret He Was Not Allowed To Share," by Jacob Sullum
"Donald Trump's Handling of Classified Material Looks Worse Than Hillary Clinton's," by Jacob Sullum
"Trump's Lawyers Say It's Not Clear Whether 'Purported' Classified Documents at Mar-a-Lago 'Remain Classified,'" by Jacob Sullum
"Gavin Newsom Wants To 'Permanently Enshrine' Gun Control in the U.S. Constitution," by Jacob Sullum
"Hillary Clinton's Use of a Private Email Server Perfectly Explains Why People Don't Trust Her," by Peter Suderman
"Hillary Clinton Keeps Making Untrue Claims About Her Use of a Private Email Server," by Peter Suderman
"What Critics of the FBI's Clinton Investigation Get Right," by Jacob Sullum
"Clinton Lies About Lying About Her Lies," by Jacob Sullum
"Yet Another Shady, Hypocritical Document Hoarder," by Katherine Mangu-Ward, Nick Gillespie, Peter Suderman, and Matt Welch
"How a college term paper led to a constitutional amendment," by Scott Bomboy at the National Constitution Center
"The Public Has a Right To See the Nashville Shooter's Writings," by J.D. Tuccille
Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.
Today's sponsor:
Audio production by Ian Keyser; assistant production by Hunt Beaty.
Music: "Angeline," by The Brothers Steve
The post Did Trump Break a Law That Shouldn't Exist? appeared first on Reason.com.
]]>Virtually all Republican senators and members of the House are defending former President Donald Trump, who was indicted on 37 counts relating to his storage of classified documents at Mar-a-Lago. (One exception: Mitt Romney, who said that Trump "brought these charges on himself.") So too are many of Trump's rivals for the 2024 nomination; shedding crocodile tears, Florida Gov. Ron DeSantis condemned the weaponization of federal law enforcement, while tech entrepreneur and long-shot candidate Vivek Ramaswamy vowed to pardon Trump if he wins the presidency.
But Trump's own attorney general, Bill Barr, thinks the indictment is "very, very damning." During an interview on Fox News Sunday, Barr said that he was shocked "by the degree of sensitivity of these documents, and how many there were, frankly." He said that federal authorities had every right to recover the documents, which included national security briefings prepared by government officials.
Trump's former AG Bill Barr to @ShannonBream: "I think the counts under the Espionage Act … are solid counts … If even half of it is true, then he's toast. It's a very detailed indictment, and it's very, very damning."
— Alex Thompson (@AlexThomp) June 11, 2023
Barr conceded that Democrats had unfairly target Trump in the past, but he said it's different this time.
"Yes, he's been a victim in the past, and yes, his adversaries have obsessively pursued him with phony claims, and I've been at his side defending him when he is a victim," said Barr. "But this is much different. He is not a victim here. He was totally wrong that he had the right to have those documents."
Trump also could have easily avoided the current situation by simply returning the documents when asked. Even some of his most ardent backers in the Republican Party are frustrated that he would put himself in this position—and force them on the defensive—so incautiously. But the dynamics of the conservative movement are such that defending Trump at all costs is simply what the base demands.
Some commentators who have little personal love for Trump are nevertheless concerned at the thought of prosecuting him under the Espionage Act. Former Rep. Justin Amash (L–Mich.) tweeted that the Espionage Act has a history being abused by law enforcement. Writing for The Free Press, Eli Lake notes that the law "does not distinguish between actual spies—people who give or sell state secrets to a foreign power—and those who seek to inform the American people about their government's excesses and abuses."
"In this respect, the law is a loaded gun against modern journalism," Lake writes.
Meta CEO Mark Zuckerberg appeared on Lex Fridman's podcast last week, fielding questions about artificial intelligence, free speech, and the impact of the Twitter Files. Zuckerberg tried—and seems to have failed—to reassure Fridman that social media companies rather than the government were ultimately in the driver's seat when it comes to moderating content.
"There's so much pressure from all sides that any specific thing that someone says isn't really adding that much more to the mix," said Zuckerberg. "There's obviously a lot of people who think that we should be censoring more content. There are a lot of people who think we should be censoring less content. There are all kinds of groups involved in these debates. There are elected officials, the agencies, the medias, activist groups."
The fact that different interest groups—both within the federal government and outside it—are all attempting to exert influence on the platforms means that they aren't captured by a specific entity, in Zuckerberg's view. But for people who worry about the pressure on the companies in general, regardless of which direction it's coming from, Zuckerberg's comments were hardly encouraging.
Zuckerberg also accused the government health officials of losing the trust of the American people by prematurely shutting off debate on COVID-19 topics—an implicit suggestion that the CEO perhaps regrets some of his company's moderation decisions.
"Just take some of the stuff around COVID earlier in the pandemic where there were real health implications, but there hadn't been time to fully vet a bunch of the scientific assumptions," said Zuckerberg. "Unfortunately, I think a lot of the kind of establishment on that kind of waffled on a bunch of facts and asked for a bunch of things to be censored that, in retrospect, ended up being more debatable or true. That stuff is really tough, right? It really undermines trust."
Throughout the pandemic, CNN's on-air talent largely defended COVID-19 lockdowns as necessary for health and safety. But behind the scenes, a top executive at the network allegedly asked then-Gov. Andrew Cuomo to meet with an executive at CNN's parent company, Warner Bros. Discovery, about reopening movie theaters.
That's according to Semafor's Maxwell Tani, who reports that the legal dispute between CNN and former news anchor Chris Cuomo, the Democratic governor's brother, has produced revealing text messages. Editorially, CNN eagerly embraced the idea that opening up the economy was reckless in the face of COVID-19. But network executive Allison Gollust—herself involved in a secret romance with former CNN boss Jeff Zucker—sent the governor a message on September 22, 2020, asking him about movie theaters.
At the time, WarnerMedia was hoping for a big hit with the Christopher Nolan film, Tenet. Tani writes:
The September 22, 2020 texts are between Governor Cuomo and CNN's then-chief marketing officer, Allison Gollust. She had left his office years earlier for CNN but kept in frequent touch, helping to arrange appearances on CNN shows and smoothing over bumps when the governor was double-booked on other networks.
But while Gollust was assisting the network's programming side, that day she crossed over into advocating for the business interests of CNN's parent company, texting a request that the governor speak to WarnerMedia's studio chief, Ann Sarnoff.
"She's bummed you don't open theaters in NY, but perhaps you can hear her out," Gollust said in the message, which was read to Semafor by a person with firsthand access to the exchange.
The next day, Cuomo heeded Gollust's request and called Sarnoff, who lobbied the governor to loosen restrictions on movie theaters, according to a person familiar with the exchange.
Chris Cuomo has filed a wrongful termination lawsuit against CNN for $125 million.
The post Trump's Own Attorney General Says Indictment Is 'Very, Very Damning' appeared first on Reason.com.
]]>Former President Donald Trump has been indicted in federal court on 37 felony charges related to hoarding boxes of classified materials at his South Florida resort.
Trump faces multiple counts of conspiracy to obstruct justice, willful retention of national defense information, and concealing documents from investigators and a federal grand jury. The indictment alleges that the classified documents included information on U.S. nuclear programs, defense and weapons capabilities, vulnerabilities, and military plans for retaliation in response to a foreign attack.
"The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive collection methods," the government alleges.
Trump and his Republican supporters in Congress say the charges are part of the corrupt weaponization of the Justice Department by Joe Biden—who also mishandled classified records—against his political rival.
Sen. Mitt Romney (R–Utah) was one of the only Republicans to defend the charges: "By all appearances, the Justice Department and special counsel have exercised due care, affording Mr. Trump the time and opportunity to avoid charges that would not generally have been afforded to others," Romney said in a press release. "Mr. Trump brought these charges himself by not only taking classified documents, but by refusing to simply return them when given numerous opportunities to do so."
While the broad strokes of Trump's, Biden's, and Mike Pence's cases of retaining classified documents are similar, Romney is correct that Trump ran head-first into the charges, even with the generous benefit of the doubt that the Justice Department gives high-ranking politicians in cases involving classified records.
As Reason's Jacob Sullum explained in January after more classified records were discovered in Biden's garage, Biden's cooperation with federal law enforcement may weigh against finding that there was criminal intent or willful mishandling:
Trump, by contrast, took thousands of government documents, including 325 marked as classified, when he left office, and he persistently resisted returning them, apparently because he considered them his personal property. That resistance included months of wrangling with the National Archives and Records Administration and incomplete compliance with a federal subpoena, which culminated in the FBI's August 8 search of Mar-a-Lago.
Unlike last week's visit to Biden's house, the Mar-a-Lago search was not consensual. It was authorized by a warrant that a magistrate judge issued after concluding that there was probable cause to believe the FBI would find evidence that Trump or his representatives had committed federal crimes. Specifically, the FBI cited statutes that make it a felony to remove or conceal government documents, retain "national defense information," and obstruct a federal investigation.
But even if the charges are ultimately a result of Trump's obstinance, it does not negate the real problems with overclassification, the general bloat of the national security apparatus, and the abuse of the Espionage Act.
Sen. Rand Paul (R–Ky.) recently noted in an op-ed that, in 2017, over 4 million Americans with security clearances classified nearly 50 million documents.
Trump's charges include violating the Espionage Act of 1917, a World War I-era law that has been used to prosecute whistleblowers who leak classified documents to the press.
The Obama administration prosecuted a record number of leakers under the Espionage Act, and the Trump administration used it as well. The Trump administration prosecuted whistleblowers Reality Winner and Daniel Hale for leaking classified documents to the press. In Hale's case, he leaked documents showing how the U.S. was killing civilians overseas with drone strikes.
Paul proposed scrapping the law altogether last year. "The espionage act was abused from the beginning to jail dissenters of WWI. It is long past time to repeal this egregious affront to the 1st Amendment," he wrote.
It was an offer that Congress, including many of the Republicans now warning of dark days for American democracy, ignored.
The post Donald Trump Indicted on More Than 30 Charges in Classified Documents Case appeared first on Reason.com.
]]>During Donald Trump's CNN town hall last month, moderator Kaitlan Collins asked him about the hundreds of classified documents he took with him when he left the White House in January 2021. "Did you ever show those classified documents to anyone?" she wondered. Trump's response was vague: "Not really. I would have the right to."
Collins asked Trump for clarification: "What do you mean [by] 'not really'?" Trump said he meant "not that I can think of," which is not really the same thing. In any case, he said, "I have the absolute right to do whatever I want with them."
One of the things Trump seems to have done with them, judging from recent reports about a recording obtained by Special Counsel Jack Smith, is rebut the claim that former Joint Chiefs of Staff Chairman Mark Milley restrained him from taking military action against Iran toward the end of his presidency. During a July 2021 interview at his golf club in Bedminster, New Jersey, Trump reportedly cited a secret memo that he said showed it was actually Milley who was bent on confrontation with Iran.
If we can trust the anonymous sources who recently described that conversation to CNN and The New York Times, the episode could be an important piece of evidence in Smith's investigation of what Trump did with thousands of presidential records he retained after leaving office. As reported, Trump's remarks suggest that, contrary to his repeated claims that he had declassified every document stamped as "confidential," "secret," or "top secret" when he had the power to do so, he still viewed the Iran memo as classified half a year after decamping for Mar-a-Lago.
Legally, the classification status of the purloined records is not decisive. Under 18 USC 793, one of the statutes that the FBI invoked when it sought the warrant for its August 8 search of Mar-a-Lago, it is a felony to improperly retain "information relating to the national defense" that "could be used to the injury of the United States or to the advantage of any foreign nation." That law predates the classification system established in 1951 and so makes no reference to it. But Trump's comments could be relevant in establishing that he "willfully" retained national defense information and that he had "reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation," both of which are elements of the offense.
"We have seen absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws," Trump's lawyers said in an April 26 letter to the House Intelligence Committee. "Rather, all indications are that the presence of marked documents at Mar-a-Lago was the result of haphazard records keeping and packing by White House staff and [the General Services Administration]." As described, the Bedminster recording seems to contradict that claim.
The interview with Trump was conducted as part of the research for former White House Chief of Staff Mark Meadows' 2021 memoir The Chief's Chief. "The recording indicates Trump understood he retained classified material after leaving the White House, according to multiple sources familiar with the investigation," CNN reported this week. "On the recording, Trump's comments suggest he would like to share the information but he's aware of limitations on his ability post-presidency to declassify records, two of the sources said."
Irked by press accounts of Milley's restraining influence, the Times says, Trump "began referencing a document that he had with him, saying that it had been compiled by General Milley and was related to attacking Iran, the people briefed on the matter said." Trump "can be heard handling paper on the tape, though it is not clear whether it was the document in question."
Adding to the intrigue, CNN today reported that Trump's lawyers "turned over material in mid-March in response to a federal subpoena" related to the "classified US military document" he cited in the interview but "were unable to find the document itself." CNN says "it remains unclear" whether the document "was ever returned to the government or where it is now."
Trump has offered shifting accounts of how he supposedly declassified the documents he retained. He initially claimed he had issued a "standing order" that automatically declassified anything he happened to remove from the Oval Office, which was news to his former national security adviser and his former attorney general. Trump later said he had the power to declassify records simply "by thinking about it" or by taking them to Mar-a-Lago. During the CNN town hall, he reiterated that everything he removed was "automatically declassified."
Trump's lawyers, during the legal wrangling over the FBI's use of the documents it seized from Mar-a-Lago, avoided such extravagant claims. But they did note that, as president, Trump could have declassified the records. Trump lawyer James Trusty reiterated that point this week. "When he left for Mar-a-Lago with boxes of documents that other people packed for him that he brought, he was the commander in chief," Trusty told CNN. "There is no doubt that he has the constitutional authority as commander in chief to declassify." But according to the Times, Trusty "declined to say" whether Trump had declassified the Iran memo.
Compounding the confusion, attorney Timothy Parlatore, who was part of Trump's legal team until recently, told CNN this week that the former president's retention of records marked as classified was partly due to "the failure of document handling within the White House." That seems inconsistent with Trump's claim that his purported declassification, whether carried out by a "standing order," a mental declaration, or the very act of removal, operated as intended.
In any case, Parlatore said, the Iran memo's classification status is a red herring in the context of potential charges under 18 USC 793. "Whether it was classified or declassified is not really something that's relevant to the statute that we're talking about here," he said. "What DOJ is investigating is willful retention of national defense information. Whether it's classified or declassified is not an element of that offense."
Parlatore noted that "people have been convicted under this statute for possessing unclassified materials." Conversely, "people have been acquitted for possessing top-secret documents that were not national defense information and were actually overclassified."
That distinction, Parlatore said, poses a problem for any potential prosecution of Trump for mishandling national defense information: To prove that charge, the government would have to declassify the relevant documents so that the jury could assess whether they qualify as national defense information—in particular, whether they "could be used to the injury of the United States or to the advantage of any foreign nation." But the very act of declassification, Parlatore said, would undermine that claim. That challenge is one reason he thinks it is unlikely that Trump will be indicted under 18 USC 793.
In short, while parsing Trump's implausible and evolving declassification claims may be entertaining, it is not relevant to this potential charge. That means Trump's critics probably should spend less time on the question of when secrets are no longer secret. But it also means that citing the president's declassification powers, as Trump's supporters reflexively do when they dismiss the significance of his conduct, does not exonerate him of endangering national security (assuming he did that) by treating sensitive government documents as his personal property.
Classification likewise has nothing to do with Trump's broader assertion that he had "the absolute right" to do whatever he wanted with documents that belonged in the National Archives under the Presidential Records Act. Under 18 USC 2071, which the FBI also cited in its search warrant affidavit, it is a felony to "conceal" or "remove" government documents.
Nor does Trump's sweeping declassification claim affect his potential liability for obstructing a federal investigation, another charge Smith is considering. It is clear that Trump's lawyers failed to fully comply with a federal subpoena seeking all documents with classification markings that remained at Mar-a-Lago, which was the main justification for the FBI's search. The lawyers said they had turned over everything, but the FBI suspected they had not, and the search confirmed that suspicion by discovering 103 additional documents covered by the subpoena.
The question of whether Trump deliberately defied the subpoena hinges on his knowledge and intent. But if he did, he would be guilty of obstruction, no matter what you make of his claim that a document's classification status depends on his unexpressed whims and acquisitive impulses.
The post Trump Reportedly Viewed a Supposedly Declassified Document As a Secret He Was Not Allowed To Share appeared first on Reason.com.
]]>In 1913, three decades after Congress approved the Chinese Exclusion Act, California prohibited Chinese and other Asian immigrants from owning land. More than a dozen other states, including Florida, enacted similar "alien land laws" during the next few decades.
S.B. 264, which Florida Gov. Ron DeSantis, a Republican, signed into law this month, bears more than a passing resemblance to those xenophobic edicts, the American Civil Liberties Union (ACLU) argues in a federal lawsuit it filed yesterday in the U.S. District Court for the Northern District of Florida. "This law is unconstitutional," the ACLU's complaint says. "It violates the equal protection and due process guarantees under the U.S. Constitution; it intrudes on the federal government's power to superintend foreign affairs, foreign investment, and national security; and it recalls the wrongful animus of similar state laws from decades past—laws that were eventually struck down by courts or repealed by legislatures."
DeSantis portrays S.B. 264, which sharply restricts land ownership by Chinese citizens, as part of the state's efforts to contain the influence of the Chinese Communist Party (CCP). But the plaintiffs represented by the ACLU, who live in Florida legally but do not have green cards, have nothing to do with the CCP. They have been working or studying in the United States for years and are dismayed by the arbitrary, nationality-based rules that suddenly stand in the way of their plans to buy residential property.
Among other things, S.B. 264 restricts real estate purchases by Chinese citizens who are neither U.S. citizens nor legal permanent residents. Effective July 1, it prohibits them from buying agricultural land or any property within 10 miles of a "military installation" or "critical infrastructure facility." Those terms are "so broadly defined," the ACLU notes, that they "bar affected individuals from being able to purchase property across much of the state." The restrictions, it says, "will have the net effect of creating 'Chinese exclusion zones' that will cover immense portions of Florida, including many of the state's most densely populated and developed areas."
Those provisions also apply to other people "domiciled in a foreign country of
concern"—a category that includes Cuba, Venezuela, Russia, Iran, Syria, and North Korea as well as China. If they hold non-tourist visas, those people are allowed to buy one residential property in Florida, provided it is less than two acres and is not within five miles of a military installation. The ACLU notes that "there are more than a dozen military installations in Florida, many of them within five miles of city centers like Orlando, Tampa, Jacksonville, Pensacola, Panama City, and Key West."
Previously owned properties must be registered with the state, and owners who fail to comply are subject to civil penalties of $1,000 a day. Any property purchased in violation of the new rules is subject to civil forfeiture, and buyers generally are guilty of a second-degree misdemeanor, punishable by up to 60 days in jail and a maximum $500 fine. Anyone who knowingly sells land to a prohibited buyer is subject to the same penalties. But the penalties are much more severe when the buyer is a Chinese citizen: Buyers are guilty of a third-degree felony, punishable by up to five years in prison and a $5,000 fine, while sellers are committing a first-degree misdemeanor, punishable by up to a year in jail and a $1,000 fine.
In a May 8 press release, DeSantis said the law targets the CCP. "Florida is taking action to stand against the United States' greatest geopolitical threat—the Chinese Communist Party," he declared. "I'm proud to sign this legislation to stop the purchase of our farmland and land near our military bases and critical infrastructure. …We are following through on our commitment to crack down on Communist China." The plaintiffs challenging S.B. 264 are understandably puzzled by that rationale.
Yifan Shen, who works as a registered dietician and holds an H-1B visa for "specialty occupations," has lived in the United States for seven years, the last four in Florida. "She is not a member of the Chinese government or of the Chinese Communist Party," the ACLU notes. In April, she signed a contract to purchase a home in Orlando as her primary residence. That property "appears to be located within ten miles of a critical infrastructure facility and within five miles of a military installation." Because the expected closing date is after July 1, the complaint says, Florida's law "will prevent Ms. Shen from acquiring her new home," so she "stands to lose all or part of her $25,000 deposit."
Zhiming Xu, who applied for asylum after he was "persecuted by the Chinese government and had to flee to the United States," is in a similar situation. He has lived in the United States for four years and works as a manager of short-term rental properties. This year he signed a contract to buy a home near Orlando that "appears to be located within ten miles of a critical infrastructure facility." He "stands to lose all or part of his $31,250 deposit" if S.B. 264 takes effect.
Another plaintiff, Xinxi Wang, holds an F-1 visa for international students and is pursuing a doctorate in earth sciences at a Florida university. She already owns a home in Miami but would be forced to register it under S.B. 264, a requirement the ACLU describes as "burdensome, discriminatory, and stigmatizing."
Yongxin Liu, an assistant professor of data science who holds an H-1B visa and has lived in Florida for four years, likewise would have to register his home near Daytona Beach. S.B. 264 would nix Liu's plan to buy a vacation home for him and his parents near Pelican Bay.
The ACLU also represents Multi-Choice Realty, a real estate brokerage that, like the other plaintiffs, has no connection to the CCP. The company, which specializes in serving Chinese-speaking clients, worries that Florida's new restrictions will disrupt its business by disqualifying many of its potential customers. The complaint adds that S.B. 264 is apt to encourage broader discrimination against "people of Chinese descent even for transactions that are permitted, as sellers will seek to broadly avoid Chinese buyers given the criminal penalties imposed for selling property in violation of the new law."
Even leaving aside the fact that these plaintiffs are not CCP agents, the Chinese menace perceived by DeSantis seems chimerical. In 2022, the complaint notes, "Chinese buyers were involved in only 0.1 percent of all real estate purchases in Florida—they purchased only one out of every 1,000 residential properties sold in the state. Chinese buyers did not even crack the top-ten list of foreign buyers by country in 2022, with Chinese buyers constituting no more than two percent of all foreign buyers."
DeSantis has "presented no evidence that Chinese buyers of property in Florida are agents of the Chinese Communist Party or have caused harm to national security," the ACLU says. "Indeed, the State of Florida has failed to identify any nexus between real estate ownership by Chinese citizens in general and purported harm to national security."
DeSantis wants us to believe that preventing a dietician, a property manager, or a professor from buying property in Florida, based purely on their national origin and non-immigrant status, somehow strikes a blow against "the Chinese Communist Party" and "crack[s] down on Communist China." But it is hard to see why innocent people should suffer for the crimes of an oppressive regime they left behind.
The post Florida's Restrictions on Property Purchases by Chinese Citizens Hark Back to a Dark History of Xenophobia appeared first on Reason.com.
]]>This month's Discord leak of U.S. intelligence documents about the war in Ukraine has reignited a long-running debate about the conflict: Does U.S. aid to Kyiv amount to a proxy war against Russia?
The papers "illustrate how deeply the United States is involved in virtually every aspect of the war," wrote Washington Post senior national security correspondent Karen DeYoung in an able summary of the "proxy war" controversy. "The leaked documents confirm in detail that the United States is using its vast array of espionage and surveillance tools—including cutting-edge satellites and signals intelligence—to keep Kyiv ahead of Moscow's war plans and help them inflict Russian casualties." It's enough that, were three different countries involved in the same situation, we'd likely reach for the "proxy war" label with ease.
But the Biden administration has vehemently rejected the term on moral grounds. "We are not in a war with Russia, and we won't be in a war with Russia," DeYoung quotes Defense Secretary Lloyd Austin saying in an interview. His reasoning? The war "was Russia's choice to begin with."
So it was. But that says nothing about what the U.S. is doing, which by the administration's own account includes wanting "to see Russia weakened," and supporting the Ukrainian war effort—at a per-year price on par with the annual costs of the initial invasion and occupation of Afghanistan—for "as long as it takes."
Two things can be true at once here: The U.S. can admit that Russia is the aggressor, wholly in the wrong with this invasion, and admit that American involvement is extensive enough that the "proxy war" charge is at least plausible to reasonable people. Acknowledging the one does not negate the other—and false dichotomies won't move us toward greater understanding, prudent foreign policy, or peace.
Unfortunately, President Joe Biden's team isn't alone in this kind of thinking. The president's Republican critics are doing it too, albeit in mirror image. Former President Donald Trump, for example, has said the war is a U.S. "proxy battle" and Biden is only "pretending to fight for freedom" in Ukraine. But, again, it can be both: Ukraine really was invaded, and the Ukrainian people, especially in Russian-occupied territories, have suffered horrifying losses of life and liberty. That Washington also may have other, less idealistic motives for intervention doesn't make that cease to be the case.
This simplistic framing is particularly indefensible right now, just a month past the 20-year anniversary of the United States' invasion of Iraq. As many retrospectives recognized, there's no need to choose between ousted Iraqi dictator Saddam Hussein did awful things and should not have been in power and the U.S. should not have invaded Iraq to oust Saddam Hussein. How have we not absorbed that unmistakable lesson in the often-painful moral messiness of war?
Acknowledging and grappling with that complexity doesn't mean being a moral squish. It doesn't mean equivocation or cynicism or refusing to call things by their names. It means recognizing that even the U.S. military has limits to its capabilities, that even the most powerful nation on earth has finite power and must choose priorities among its possible uses, and that even America cannot police the world and forcibly remake it in its own image.
There's a reason, after all, that then–Secretary of State John Quincy Adams spoke of America not going "abroad in search of monsters to destroy" in his famous 1821 Independence Day address: There really are monsters. There are always monsters. The Russian invasion of Ukraine is monstrous.
That was Adams' whole point. If there weren't monsters abroad, there'd be no need to caution against going in search of them, no need to praise wise abstention "from interference in the concerns of others, even when [the] conflict [is] for principles to which [America] clings."
The "monsters" line is the most quoted part of Adams' speech, but in light of Ukraine and the proxy war debate, another piece bears revisiting, too. America "well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication," Adams said, "in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom."
That latter description doesn't ring true of the war in Ukraine—not on Ukraine's side, anyway. (Moscow, absurdly, has claimed its attack was defensive, which sounds a lot like the usurpation Adams had in mind.)
But the part about extrication is all too familiar. It points to questions we should already be asking about this conflict: Are there lines we won't cross? Are there circumstances under which the U.S. role would change? Will "as long as it takes" become "whatever it takes," especially if the presidency changes hands? What kind of accountability can we expect as the mission evolves—or, for that matter, as it stalemates?
The longer U.S. intervention in this war continues, the more unacceptable oversimplification and public "accountability" via leaks become—and the more we need realism and transparency from Washington.
The post Of Course Washington and Moscow Are Fighting a Proxy War appeared first on Reason.com.
]]>Another day, another government blunder used as an excuse to tighten the screws on the public in hopes of reducing the fallout from official incompetence. That's a fair takeaway from efforts by the Biden administration and security agencies to lean on the media for reporting the contents of the recent intelligence leaks, and to plan expanded internet surveillance to catch inevitable future leakers.
"We do believe that social media companies have a responsibility to their users and to the country to manage the private sector infrastructure that they create and now operate," White House Press Secretary Karine Jean-Pierre responded last week to questions about a massive leak of military documents detailing everything from Pentagon assessments of Ukraine's prospects in its war with Russia to apparent U.S. spying on its allies. "We normally urge companies to avoid facilitating those circulation of material detrimental to public safety and national security."
Strictly speaking, it's the job of governments to keep their own secrets. Private individuals and organizations have no responsibility to look away from information revealed to the world by random Air National Guard I.T. workers entrusted with sensitive intelligence. But when you're a government flack trying to explain away the latest in a series of screw-ups, it must be tempting to wag your finger at a world that so stubbornly refuses to ignore your bouts of institutional Tourette syndrome. Of course, the surveillance state has some clever ideas for fixing the problem.
"The Biden administration is looking at expanding how it monitors social media sites and chatrooms after U.S. intelligence agencies failed to spot classified Pentagon documents circulating online for weeks, according to a senior administration official and a congressional official briefed on the matter," NBC News's Carol E. Lee, Ken Dilanian, and Dan De Luce report.
Clearly, at least to state functionaries, extensive scrutiny of other people is the best way to address the inadequacy of your own internal security precautions.
Actually, the Biden administration might want to call a meeting to get its story straight. Even as the White House press secretary leans on private media to scrub the leaked documents from the internet and the intelligence community vows to leave no gaming chatroom unsurveilled, President Biden insists he's "not concerned about the leak because…there's nothing contemporaneous that I'm aware of that is of great consequence right now."
So, if the leak is no biggy, why demand that private companies ignore it and plan for a super-sized surveillance state? The obvious answer, as media operations around the planet parse the documents for items of interest, is that federal bureaucrats are really embarrassed. And rather than attempt to patch the flaws in a government behemoth that is resistant to repair if not entirely beyond hope, they'd rather demand that the rest of the planet avert its eyes from the trainwreck, as if that will fix everything.
"Yeah, you can totally delete things from the Internet – that works perfectly and doesn't draw attention to whatever you were trying to hide at all," Elon Musk snarked back at demands that Twitter remove sensitive information long after it began circulating.
Official desperation is apparent in an April 12 story in The Washington Post that "for years, U.S. counterintelligence officials have eyed gaming platforms as a magnet for spies" after the release of the documents on Discord, which hosts topic-based channels and is popular with gamers among others. (I can only assume the baking forums my wife frequents are havens for assassins—like John Wick, but fudgier.)
But seriously, "gaming platforms as a magnet for spies" makes sense only to the extent that intelligence agents might try to cultivate sources by playing to their interests, such as gaming or sex (or baking). It's a silly point to make if reports are to be believed that Air National Guardsman Jack Teixeira pilfered the documents not to benefit Russia's efforts in Ukraine, or as an act of whistleblowing on government wrongdoing, but instead to impress his buddies. Much to the chagrin of officials anonymously suggesting (in approved leaks) that "Russia or pro-Russian elements" were behind the leak, the current rounds of international headlines points to internal security flaws, not to Boris and Natasha.
Besides, it's not obvious that the government needs a whole lot more private-sector cooperation with its counterintelligence efforts. In addition to the open-source intelligence organization Bellingcat, Teixeira was outed by The New York Times. "Reporters from The New York Times were already gathered near the Dighton home of Airman First Class Jack Teixeira's mother when a half-dozen FBI agents, some of them heavily armed, pushed their way inside," according to the Boston Globe's Shannon Larson.
Maybe all of those former CIA and FBI officials taking gigs at media operations in recent years are onto something, if by "something" we mean a new way of doing their old jobs.
"The downside of outsourcing national security coverage to the TV spies is obvious," Politico media critic Jack Shafer warned in 2018. "They aren't in the business of breaking news or uncovering secrets. Their first loyalty—and this is no slam—is to the agency from which they hail."
Now media operations more effectively engage in counterintelligence than the government agencies tasked with that duty! But that's still not enough for federal officials who don't have a handle on their own procedures for managing sensitive data and see an opportunity to extend their reach to cover what others discuss and publish.
"The administration is now looking at expanding the universe of online sites that intelligence agencies and law enforcement authorities track," NBC News added in its report about official reactions to the leak. "The intelligence community is now grappling with how it can scrub platforms like Discord in search of relevant material to avoid a similar leak in the future."
The NBC story includes some caveats about civil liberties and the limits of surveillance authority. But it comes in the midst of a national frenzy over espionage via popular communications platforms such as TikTok. That fuels legislative proposals, including the RESTRICT Act, to vastly expand government authority over the online world.
"The RESTRICT Act isn't narrowly tailored at all. In fact, it's so broad it's difficult to see where its authoritarian powers end," I warned before the current leak hit the news. "Open-ended bills crafted to exploit popular panics make for terrible legislation."
Concerns over secrets posted in chatrooms and shared across social media can only feed into official efforts to shift blame for government failings and to expand state power.
Jack Teixeira may have only been trying to impress a group of online friends, but he also managed to leave the military and intelligence communities looking foolish. Never underestimate government officials' ability to turn embarrassing moments for them into opportunities to stick it to the rest of us.
The post Feds See the Document Leak as an Opportunity for Surveillance and Control appeared first on Reason.com.
]]>New clues shed light on the identity of the person responsible for the leak of 100 U.S. intelligence documents relating to the Russia-Ukraine war, the Middle East, China, and more. The leaker is a military man in his mid-20s whose primary motivation for sharing the documents was to impress an online group of young men who share his interest in guns, military gear, and video games, according to The Washington Post.
The Post interviewed a fellow participant—a teenage boy—in the Discord server where the documents first appeared. The teenage boy said the leaker goes by the name OG, which is internet slang for "original gangster." OG was revered as a hero by this online community; he would often share transcripts of confusing and jargon-heavy intelligent reports, annotating them with his own comments, which skewed toward a radical anti-government perspective. The Post reported:
OG told the group he toiled for hours writing up the classified documents to share with his companions in the Discord server he controlled. The gathering spot had been a pandemic refuge, particularly for teen gamers locked in their houses and cut off from their real-world friends. The members swapped memes, offensive jokes and idle chitchat. They watched movies together, joked around and prayed. But OG also lectured them about world affairs and secretive government operations. He wanted to "keep us in the loop," the member said, and seemed to think that his insider knowledge would offer the others protection from the troubled world around them.
"He's a smart person. He knew what he was doing when he posted these documents, of course. These weren't accidental leaks of any kind," the member said.
When interest in the transcripts began to wane, OG decided to publish images of the actual documents.
Late last year, a peeved OG fired off a message to all the members of the server. He had spent nearly an hour every day writing up "these long and drawn-out posts in which he'd often add annotations and explanations for stuff that we normal citizens would not understand," the member said. His would-be pupils were more interested in YouTube videos about battle gear.
"He got upset, and he said on multiple occasions, if you guys aren't going to interact with them, I'm going to stop sending them."
The teenager interviewed by the Post says he knows OG's real identity, and the paper was able to review a video of OG at a shooting range. The teenager expects he will be contacted by law enforcement but vows not to give up OG because "he was my best friend."
Assuming that these details are accurate, they present a nonpolitical rationale for the leak. Some have suspected that the ideology of the leaker may have been either pro-Russian or pro-Ukraine; the intelligence lays bare the weakness of the Ukrainian military position, and its publication may have been intended either to provoke more sympathy for Ukraine or to bolster a realist view of Russia's likely eventual victory. But if the Post report is accurate, then it seems that the leaker's motivations were much more personal: He wanted to impress his internet buddies.
The Foundation for Individual Rights and Expression (FIRE) has sent a letter to San Francisco State University that demands stronger action to protect free speech on campus in the wake of a conservative student event that went off the rails. That event was hosted by Turning Point USA and featured Riley Gaines, a former college athlete who has spoken out against transgender women competing in women's sports. A mob of protesters heckled Gaines and eventually trapped her in a room for three hours. She says that a man in a dress physically hit her, and neither the police nor the university administration did anything to swiftly resolve the situation.
FIRE's letter criticizes SFSU for wrongly stating that "the First Amendment was honored" during the event:
Your assertion that "the First Amendment was honored" during this event
does not track with the video footage that clearly showed uncontrolled and substantial disruption during Gaines' presentation not only in the hallway (audible inside the room), but also inside the room as protestors repeatedly interrupted her speech. We call on the university to investigate what led to last week's appalling display and respond accordingly to ensure it never happens again.As you must know, the First Amendment requires public universities like SFSU to protect student groups' free speech rights by making good faith efforts to address disruptions to expressive events as they occur. Failure to properly address such disruptions ratifies an unconstitutional "heckler's veto" and will only incentivize more threats to students' freedom of speech and deter them from hosting potentially controversial speakers on campus. When those opposed to speakers or their message target such events for disruption, educational institutions must respond with "bona fide efforts" to protect expressive rights.
In a statement to Reason, SFSU's administration had maintained that the disruptions did not occur until after Gaines had finished speaking. According to FIRE's account, this is plainly untrue.
An appeals court has partially blocked the Texas ruling that invalidated approval of the abortion drug mifepristone. According to The New York Times:
A federal appeals court ruled late Wednesday that the abortion pill mifepristone could remain available, but the judges blocked the drug from being sent to patients through the mail and rolled back other steps the government had taken to ease access in recent years.
In its order, a three-judge panel for the Fifth Circuit partly overruled Judge Matthew J. Kacsmaryk of the Northern District of Texas, who last week declared that the Food and Drug Administration's approval of mifepristone in 2000 was not valid, in essence saying that the drug should be pulled from the market.
The appellate court said its ruling would hold until the full case was heard on its merits.
In its order, the appellate panel said the F.D.A.'s approval of mifepristone could stand because too much time had passed for the plaintiffs, a consortium of groups and doctors opposed to abortion, to challenge that decision. The court also seemed to take into account the government's view that removing a long-approved drug from the market would have "significant public consequences."
The court did rule, however, that changes made by the FDA in 2016 could be subject to judicial review.
• Sen. Dianne Feinstein (D–Calif.) is giving up her seat on the Judiciary Committee as fellow Democrats call for her resignation.
• Republican Florida Gov. Ron DeSantis is seeking a six-week abortion ban.
• In the wake of NPR leaving Twitter over its "government-funded" designation, some are calling to defund it.
• North Dakota is banning transgender girls and women from participating on female sports teams.
• Millennials, rejoice: A Harry Potter television show is in the works.
The post Leaker of Ukraine Intelligence Was Reportedly a Gun Enthusiast Trying To Impress His Discord Friends appeared first on Reason.com.
]]>The leak of dozens of U.S. intelligence documents mostly pertaining to Russia's war against Ukraine has raised grave questions for both American policymakers and American allies and partners: Why were they leaked? How secure is U.S. information collection? How much does our government spy on its friends? Why do these materials seem to overestimate Ukrainian casualties, and how close to breakdown is Ukraine's air defense system?
But for the American public and the lawmakers theoretically representing us, one revelation should raise a larger concern: If there are U.S. boots on the ground in Ukraine, as these leaked documents indicate, are we closer to war with Russia than we thought?
To be clear, the boots are very few. "One slide suggested that a small contingent of less than 100 special operations personnel from NATO members France, America, Britain, and Latvia were active in Ukraine," The Guardian reported. A Daily Mail story includes an image of that paper, which shows the largest contingent of these forces are British (the U.K. has semi-denied the report), and only 14 are American.
That's not much. It's tiny compared to the thousands of civilian deaths and hundreds of thousands of combatant casualties reported in Ukraine already. It's also far smaller than U.S. deployments elsewhere, like, say, the roughly 900 U.S. troops lingering in Syria or the 2,500 in Iraq. Even an American embassy in a peaceful, friendly country could have a U.S. military presence of 14.
But that's the thing: Ukraine isn't a peaceful country right now, and Syria is a reasonable comparison. In both countries, the United States has a military presence but is technically not at war. Congress never authorized military intervention in Syria, and President Joe Biden has been adamant that "we will not be directly engaged in this conflict, either by sending American troops to fight in Ukraine or by attacking Russian forces" so "long as the United States or our allies are not attacked." And in both countries, our intervention puts us on opposing sides—and in close quarters in a warzone—with Russia.
That proximity doesn't guarantee we'll stumble into an unwanted U.S.-Russia war. Washington and Moscow alike have many good reasons to avoid that outcome, the specter of nuclear annihilation among them. Moreover, even if those 14 Americans come to real harm in Ukraine, the United States isn't forced to respond with escalation to the point of open conflict.
Syria is again a good comparison: When Iran-linked fighters killed a U.S. contractor and wounded five U.S. service members there last month, the U.S. retaliated with airstrikes, but we didn't launch a full-blown war on Iran. Likewise, though Moscow insists the United States is using Ukraine to wage a proxy war against Russia, it hasn't answered American involvement with military reprisal against us.
Recall, this leak isn't the first hint that Biden's promise not to "[send] American troops to fight in Ukraine or [attack] Russian forces" is only kept on a technicality. It's been nearly a year since The New York Times reported the U.S. was providing intelligence assistance for Ukraine to kill Russian generals and sink their prize warship. And by early October, The Intercept was already reporting that there's "a much larger presence of both CIA and U.S. special operations personnel and resources in Ukraine than there were at the time of the Russian invasion," citing unnamed "current and former intelligence officials."
In that context—not to mention the tens of billions in aid the U.S. has sent to Ukraine since February of last year—it's unlikely a contingent of 14 would make any significant difference to Russian President Vladimir Putin's calculations around chancing war with the world's most powerful military and 30 other NATO allies. Again, 14 is not much.
Still, "unlikely" is not "impossible" and "not much" is not "nothing."
U.S. deterrence is strong and reliable, but we're naïve to imagine that Washington can do whatever it pleases around the world without fear of retaliation. That's especially true in Ukraine, where Putin has indicated he sees a core national interest at stake. (Russia's operations in Syria, though also strategically motivated, aren't on the same scale.) While escalation is not inevitable, it's still a risk.
To Biden's credit, the leak also revealed his administration has been in at least one way more cautious than some of Ukraine's other supporters. "One of the documents says that Britain and France have sent crewed electronic warfare planes over the Black Sea while the United States has sent only drones," David Ignatius observes at The Washington Post. "Why? The answer is that we don't want a direct confrontation with Russia, like the one the documents say took place in September, when the Russians nearly shot down a British RC-135."
That's wise. Yet putting Americans in Ukraine, though only a few, could be a path to direct confrontation with Russia, too. What happens if they're killed by a Russian bomb? It's difficult to imagine a solely verbal response from Washington, particularly if the deaths become public. Even a small risk of a world-historic catastrophe is a serious risk.
The post Pentagon Leak Reveals 14 U.S. Troops in Ukraine appeared first on Reason.com.
]]>Would the RESTRICT Act—a.k.a. the TikTok ban bill—criminalize the use of VPNs? That's the rumor floating around about the legislation, which was introduced in the Senate by Sen. Mark Warner (D–Va.) earlier this month. Warner's office has said his bill wouldn't do this… but its broad language leaves room for doubt. And the act is still insanely far-reaching and could have a huge range of deleterious effects, even if it doesn't criminalize people using a VPN to access TikTok.
VPN stands for virtual private network, and there are several different kinds, but their general aim is the same: keeping your digital activities and location private. Using a VPN with your computer, phone, or another internet-enabled device can do things like mask your I.P. address and encrypt your internet connection. It's a great way to get around location-based firewalls (a.k.a. geoblocking) and other forms of internet censorship.
For this reason, VPNs are popular in countries that exercise authoritarian control over what their citizens can access online. It's sad that this contingent could soon include U.S. citizens, but include us it does, as both Republicans and Democrats get more and more gung-ho about banning the popular video platform TikTok.
Sen. Josh Hawley (R–Mo.) introduced one TikTok ban bill back in January. Hawley's bill would direct the president to use the International Emergency Economic Powers Act to specifically "block and prohibit all transactions" and to "prevent commercial operation of" TikTok parent company ByteDance in the U.S.
The latest legislation is more extensive—and even more invasive.
Warner's "Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act," or the RESTRICT Act, doesn't specifically mention TikTok or ByteDance. Rather, it would grant the U.S. secretary of commerce the broad power to "identify, deter, disrupt, prevent, prohibit, investigate, or otherwise mitigate … any risk arising from any covered transaction by any person, or with respect to any property" that the secretary determines to pose "an undue or unacceptable risk" in several different areas. These include federal elections, "information and communications technology products and services," and "critical infrastructure or digital economy," as well as "coercive or criminal activities by a foreign adversary that are designed to undermine democratic processes and institutions or steer policy and regulatory decisions in favor of the strategic objectives of a foreign adversary to the detriment of the national security of the United States."
The language describing who the RESTRICT ACT applies to is confusing at best. The commerce secretary would be authorized to take steps to address risks posed by "any covered transaction by any person," right? So what counts as a covered transaction? The bill states that this means "a transaction in which an entity described in subparagraph (B) has any interest." Entities described in subparagraph B are a "foreign adversary; an entity subject to the jurisdiction of, or organized under the laws of, a foreign adversary; and an entity owned, directed, or controlled by" either of these. Foreign adversaries can be "any foreign government or regime" that the secretary deems a national security threat.
It's a bit gobbledygooked, but this could be read to imply that "any person" using a VPN to access an app controlled by a "foreign adversary" or its alleged minions is subject to the secretary's ire. Hence anyone using a VPN to access TikTok would be in trouble—specifically, subject to up to $1 million in fines, 20 years in prison, or both.
Warner's office says this isn't so. Spokesperson Rachel Cohen told Newsweek that the provisions only apply when someone is "engaged in 'sabotage or subversion' of communications technology in the U.S., causing 'catastrophic effects' on U.S. critical infrastructure, or 'interfering in, or altering the result' of a federal election in order for criminal penalties to apply." The RESTRICT Act targets "companies like Kaspersky, Huawei and TikTok … not individual users," she said.
It's somewhat reassuring that at least Warner doesn't intend the bill's criminal provisions to apply to U.S. citizens using VPNs. But the verboten activities it lists are actually broader than those that Cohen mentions to Newsweek. And because the language of the bill is so expansive, it seems hard to rule out it ever being used in this way.
We've seen many times the way federal laws are sold as attacks on big baddies like terrorists and drug kingpins yet wind up used to attack people engaged in much more minor activities.
Besides, the RESTRICT Act doesn't just state that "no person may engage in any conduct prohibited by or contrary to" its provisions. It also says "no person may cause or aid, abet, counsel, command, induce, procure, permit, or approve the doing of any act prohibited by, or the omission of any act required by any regulation, order, direction, mitigation measure, prohibition, or other authorization or directive issued under, this Act," (emphasis mine). In addition, "no person may solicit or attempt a violation" and "no person may engage in any transaction or take any other action with intent to evade the provisions of this Act."
That language leaves even more room for the RESTRICT Act to touch a wide range of activities. Perhaps a court would ultimately deem it unusable against individuals merely trying to evade a TikTok ban, but that doesn't mean prosecutors wouldn't try, nor that authorities wouldn't use invasive surveillance measures to try and detect such evasion.
And even if the law would never be used to attack citizens for merely using VPNs, it's a deeply worrying piece of legislation that would give the government broad authority to restrict or ban all sorts of businesses and communications tools, so long as they're tangentially related to any country it decides is an adversary. It would give law enforcement wide leeway to punish a range of people involved in the provision or dissemination of any services from these entities. And it would grant authorities sweeping new powers to go after a huge range of economic and expressive activity and limit Americans' access to a wide range of tools, services, and products.
As Reason's Robby Soave asked yesterday, can we really "expect the veritable army of federal bureaucrats obsessed with policing speech on social media platforms to narrowly utilize this new mandate to deter foreign threats and focus solely on the CCP? Or should we anticipate that every weapon added to their arsenal is a threat to the free speech rights of everyday Americans?"
The good news here is that a broad range of people and groups—including civil libertarians, conservatives, and leftists alike—have come out against banning TikTok and against the RESTRICT Act more generally.
"This bill isn't about banning TikTok, it is never about what they say it is," Fox News host Tucker Carlson told the Daily Caller. "Instead, this bill would give enormous and terrifying new powers to the federal government to punish American citizens and regulate how they communicate with one another."
"This is not an effort to push back against China, it is part of a strategy to make America much more like China, with the government in charge of what you read and see and with terrifying punitive powers at their fingertips," he continued. "We've seen this before from the national security state again and again. Confronted with a foreign adversary, for example, after 9/11, the federal government uses the opportunity to expand their police powers over the American population and they do it under false pretexts and they do it quickly by whipping people into a panic."
Sen. Rand Paul (R–Ky.) makes similar points in a Courier Journal op-ed today:
Before banning TikTok, these censors might want to discover that China's government already bans TikTok. Hmmm . . . do we really want to emulate China's speech bans?
TikTok must be banned, the censors say, because they are owned and controlled by the Chinese communist government, but does TikTok do the Chinese government's bidding? Well, go to the app and search for Falun Gong, the anti-communist religious sect that is persecuted in China. Go to TikTok and search for videos advocating Taiwan's independence, criticism of Chinese Premier Xi Jinping. Videos are all over TikTok that are critical of official Chinese positions. That's why TikTok is banned in China.
As Drs. Mueller and Farhat of Georgia Tech write: "If nationalistic fears about Chinese influence operations lead to a departure from American constitutional principles supporting free and open political discourse, we will have succeeded in undermining our system of government more effectively than any Chinese propaganda could do."
States consider mandatory anti-porn filters. NBC News looks at anti-porn bills that are currently percolating in eight states. These bills "would force phone and tablet manufacturers like Apple and Samsung to automatically enable filters that censor nude and sexually explicit content," it points out:
The only way to disable the filters, according to the bills introduced this year, would be through passcodes. Providing such a passcode to a child would be forbidden, except when done by a parent.
Specifically, the bills say, the phone filters must prevent children from downloading sexually explicit content via mobile data networks, applications owned and controlled by the manufacturer, and wired or wireless internet networks.
Many device manufacturers already have adult content filters available for use, though it is not the norm to have them turned on by default. Many phone makers, for instance, allow parents to easily enable filters on web browsers that prevent children from navigating to websites known to host pornography.
Parents already have tools available to keep sexual content off their children's devices. These new bills would, instead, treat all adults like children.
Tariffs on baby formula returned—and so did the shortages. Reason's Eric Boehm explores how government policy is making it harder for Americans to feed their kids:
When supply chain issues caused a baby formula shortage last year, Congress (eventually) cut tariffs to help get more formula onto American store shelves.
It worked! Imports of baby formula soared during the second half of 2022 after tariffs and other regulations were lifted. Stores reported lower out-of-stock rates and news stories about panicked parents being unable to feed their infants abated. In short, the government removed economic barriers and the market solved the problem.
Then, the government put those barriers back in place. On January 1, the tariffs on baby formula returned. Now, so has the crisis.
"It's getting harder and harder" to find baby formula, pharmacy owner Anil Datwani told Fox News this week. "[Mothers] go from one store to the next store to the next store" looking for baby formula.
Meanwhile, some consumers are complaining on social media that prices for baby formula have suddenly spiked and availability is once again a problem.
More here.
• The Senate will vote today on whether to finally repeal Iraq war powers.
• This year's farm bill threatens to be "a bigger monster than ever," warns J.D. Tuccille.
• An Idaho bill would create the crime of "abortion trafficking."
• New York lawmakers are pondering a "Netflix tax."
• The government is turning border surveillance on Americans.
The post Could the RESTRICT Act Criminalize the Use of VPNs? appeared first on Reason.com.
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