Possible Amendments to the New Justice Against Sponsors of Terrorism Act (JASTA) 

As reported in a prior post, on September 28, the U.S. Congress overwhelmingly voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA) even though the Chair (Senator Bob Corker (Rep., TN)) and Ranking Member (Senator Benjamin Cardin (Dem., MD)) of the Senate Foreign Relations Committee and Senator Diane Feinstein expressed deep reservations about the wisdom of this law.

Immediately after the adoption of this law, Senator Corker and others expressed desires to change the new law.[1] Let us look at these concerns and efforts to amend JASTA.

Certain Senators’ Concerns

Senator Corker said he thought the issues could be addressed in the “lame-duck” /Senator session of Congress after the November election and that possible fixes included limiting the bill’s scope just to the Sept. 11 attacks, changing some of the technical definitions or thresholds in the bill and establishing a tribunal of experts who ‘could first determine if there was culpability there.’”

Without specifics Senate Majority Leader Mitch McConnell said there could be “potential consequences” of JASTA that are “worth further discussing.” House Speaker Paul Ryan said Congress might have to “fix” the legislation to protect U.S. troops in particular. Trent Lott, a former Republican Senate Majority Leader and now a lobbyist for the Saudis, said, “I do feel passionately this is a mistake for a variety of reasons, in terms of threats to troops, diplomats, sovereignty, there’s serious problems here. Hopefully we can find a way to change the tenor of this.”

 Saudi Arabia’s Reactions

On October 3 Saudi Arabia’s Cabinet released a statement criticizing the adoption of JASTA.[2] It said the new law was “a source of concern to the international community in which relations are based on the principle of equality and sovereign immunity, as this law came to weaken the immunity of the world guaranteed by the United Nations, its agencies and councils which were formed to preserve the legal sovereignty of all its member countries across the universe. Weakening this sovereign immunity will affect all countries, including the United States. [The cabinet] expressed hope that wisdom will prevail and that the U.S. Congress would take the necessary steps to avoid the bad and dangerous consequences that may result from the JASTA legislation.”

On October 20 U.S. Secretary of State John Kerry met with Saudi Arabia’s Foreign Minister Adel al-Jubeir. Afterwards the two of them held a joint announcement at the State Department.[3] With respect to JASTA, Kerry said:

  • We “did discuss [JASTA’s] very negative impact on the concept of sovereign immunity. And the interests of . . . [the U.S.] are at risk as a result of the law that was passed in Congress in the final days. And we discussed ways to try to fix this in a way that respects and honors the needs and rights of victims of 9/11 but at the same time does not expose American troops and American partners and American individuals who may be involved in another country to the potential of a lawsuit for those activities. Sovereign immunity is a longstanding, well-upheld standard of law, and unfortunately this legislation – unintentionally, I think – puts it at great risk and thereby puts our country at great risk. So we’re talking about ways to try to address that.”

Foreign Minister Adel al-Jubeir’s comments about JASTA were the following:

  • “I . . . want to add my voice to what the Secretary said about the importance of sovereign immunities. Sovereign immunities have been a cardinal principle of the international legal order that was established after the Treaty of Westphalia in the 1600s. The objective is to bring order to the international system. And where sovereign immunities are diluted, the international system becomes chaotic, and no country, and no government, is able to conduct its official business without having to worry about lawsuits. The United States, as the country with the biggest footprint in the world, of course has the most to lose by this, because you have operations all the way from Japan to South America to the Pacific, and I think that is why the vast majority of countries have come out vehemently and very strongly against . . . JASTA . . . for its dilution of sovereign immunities. And there have been a number of countries that are looking at reciprocal measures, and if this issue takes hold, we will have chaos in the international order, and this is something that no country in the world wants.”

However, neither gentleman provided details about so-called “fixes for JASTA.

Moreover, there already are “9/11 lawsuits” brought by 9,000 plaintiffs against Saudi Arabia consolidated in federal court in the Southern District of New York in Manhattan that had been dismissed, but will be resurrected under JASTA. Already there is talk about potential discovery and other pre-trial activity in the cases. This includes plaintiffs’ efforts to reinstate Saudi Arabia as a defendant. And on September 30 a new Sept. 11 lawsuit against Saudi Arabia was filed in U.S. District Court in Washington, D.C., on behalf of the widow and daughter of a Navy officer killed in the attack on the Pentagon.

However, Raj Bhala, a professor of international and comparative law at the University of Kansas Law School, opines that the “deck remains stacked against the plaintiffs” with their biggest challenge: persuading a court there is solid evidence of a direct Saudi government role in the 9/11 attacks.[4]

Other Reactions

On October 10 China’s Foreign Ministry said China opposes all forms of terrorism and supports the international community on anti-terrorism cooperation, but that such efforts should “respect international law and principles of international relations, including fundamental principles of nations’ sovereign equality.” Therefore, every country “should not put . . . [its] domestic laws above international law and should not link terrorism with any specific country, religion or ethnicity.” The Foreign Ministry also noted that China’s people and assets at home and around the world face a growing risk from terrorism, but it has a foreign policy of non-interference in other countries’ affairs.[5]

Many other countries oppose JASTA. France considers that laws such as JASTA would lead to a “legal chaos” at the international level. Russia has slammed the legislation as undermining international law. Turkey views JASTA as a law against the principle of individual criminal responsibility for crimes and expects it would be reversed shortly. Egypt’s Foreign Ministry warned that JASTA could have a dire effect on US international relations.[6]

Daniel Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, said JASTA was an example of “legislative fecklessness.” Immediately after the bill’s passage, Republican congressional leaders talked about the need to “fix” the bill and tried to blame President Obama for the problems by falsely claiming he had not made a strong case against the bill. But the president had vetoed the bill, publicly articulated the reasons for the veto and personally and through Administration officials had warned congressional leaders about the adverse implications of the bill. Thus, a “’stupid bill’ that adversely affects American national interests is now law.”[7]

A New York Times editorial, agreeing with Professor Drezner, said that the adoption of the bill over a presidential veto, was a new example of congressional “craven incompetence” and that JASTA should be repealed. A Wall Street Journal editorial also called for repeal.[8]

Conclusion

The only specific suggestions of ways to “fix” JASTA that I have seen are Senator Corker’s. The idea of creating a new tribunal presumably to assess whether a specific state has sponsored or aided and abetted acts of terrorism in the U.S. sounds too complicated, but there are not enough details about such an idea to have a detailed response. The same is the case for his other suggestion about changing some of the technical definitions or thresholds in the bill. The idea of limiting the law to 9/11, however, might be a way to see how such a law works out in practice before it is expanded to include any other situation as the law now stands.

Instead, I offer the following initial suggestions for amending JASTA on the assumption that repeal is not currently feasible:

  1. Assign exclusive jurisdiction over all civil actions under JASTA to the U.S. District Court for the District of Columbia and require or suggest that all such cases be assigned to a designated District Judge. That will assist the U.S. Departments of State and Justice, the White House and foreign governments in monitoring any such actions and eliminate the risk of inconsistent decisions at the District Court level and at the level of the federal courts of appeal. There is no reason to have any other federal courts involved in such cases and absolutely no reason to have any state courts so involved.
  2. Make the U.S. Government a necessary party to any such civil action.
  3. There should be limitations on permissible pre-trial discovery in such cases. Here is one way to do so. After answers to any complaint in any such civil action have been served and filed and before any other proceedings in the case, require the U.S. Government to provide its opinion as to whether the foreign state in any such case has sponsored or aided and abetted any acts of terrorism in the U.S. If the U.S. Government states that the foreign state has not sponsored or aided and abetted any act of terrorism in the U.S., then the civil action should be dismissed. If the U.S. Government states that the foreign state has so sponsored or aided and abetted, then the case should proceed to assess damages with appropriate discovery. If the U.S. Government states that it does not know whether the foreign state has so sponsored or aided and abetted, then the U.S. Government should propose a plan for discovery in the case to attempt to resolve that question as quickly and as inexpensively as possible with a prohibition of any discovery that is not included in such a plan.

Now we wait to see what bills will be introduced in Congress to amend JASTA.

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[1] Reuters, U.S. Lawmakers May change Sept. 11 Law After Rejecting Veto, N.Y. times (Sept. 30, 2016); Peterson & Lee, Congress Looks to Narrow Bill Allowing Terror Victims to Sue Foreign Governments, W.S.J. (Sept. 30, 2016).

[2] Reuters, U.S. Sept. 11 Law Weakens International Relations, Saudi Cabinet Says, N.Y. Times (Oct. 3, 2016); Saudi Press Agency, Press Release regarding JASTA (Oct. 4, 2016); Hubbard, Angered by 9/11 Victims Law, Saudis Rethink U.S. Alliance, N.Y. Times (Sept. 29, 2016).

[3] U.S. State Dep’t, Remarks with Saudi Arabian Foreign Minister Adel al-Jubeir After Their Meeting (Oct. 20, 2016) Reuters, U.S. Urges Houthis to Keep Ceasefire, Discusses JASTA With Saudi, N.Y. Times (Oct. 20, 2016). No additional details about any proposed “fixes” to JASTA were provided in response to questions at the State Department’s October 21 Daily Press Briefing.

[4] Mazzetti, Claims of Saudi Role in 9/11 Appear Headed for Manhattan Court, N.Y. Times (Sept. 29, 2016); Bravin, Lawyers Move Quickly After Congress Enacts Bill Allowing Suits Against Saudi Arabia, W.S.J. (Sept. 30, 2016).

[5] Reuters, China Backs Sovereign Immunity After U.S. Sept. 11 Bill Becomes Law, N.Y. Times (Oct. 10, 2016).

[6] Fotouh, JASTA: Real threats and hidden opportunities, Egypt Daily News (Oct. 24, 2016).

[7] Drezner, The unbearable idiocy of Congress, Wash. Post (Sept. 30, 2016).

[8] Editorial, Congress Has Itself to Blame for 9/11 Bill, N.Y. Times (Sept. 30, 2016); Editorial, Instant Senate Remorse, W.S.J. (Sept. 30, 2016).

Conservative Columnist George Will Condemns Donald Trump

This blog recently has discussed the severe criticism of Donald Trump by a Wall Street Journal editor and by other conservatives and Republicans. Another longtime conservative commentator, George Will, also has aggressively condemned Donald Trump, both before and after the latter’s July 21 Republican presidential nomination. Moreover, in June, when Trump was the presumptive nominee, George Will changed his party affiliation from Republican to “unaffiliated” because of Trump.[1]

Here are at least seven of these condemnations by Mr. Will.

Pre- Nomination

1.Donald Trump relishes wrecking the GOP[2]

Trump “boasts of his sexual athleticism, embraces torture and promises to kill terrorists’ families.” He has “ myriad [religious] conversions-of-convenience.” More importantly for Will, Trump has disavowed Will’s conservative milestones by liking the Obamacare mandate and by opposing Social Security reform and reductions.

2. The albatross of a Trump endorsement[3]

 “Trump’s distinctive rhetorical style — think of a drunk with a bullhorn reading aloud James Joyce’s ‘Finnegans Wake’ under water — poses an almost insuperable challenge to people whose painful duty is to try to extract clarity from his effusions.”

“Trump, the thin-skinned tough guy, . . . has neither respect for nor knowledge of the Constitution, and he probably is unaware that he would have to ‘open up’ many Supreme Court First Amendment rulings in order to achieve his aim. . . . [of chilling] free speech, for the comfort of the political class, of which he is now a gaudy ornament.”

Trump, “whose breadth of . . . ignorance is the eighth wonder of the world, actually thinks that judges ‘sign’ bills. Trump is a presidential aspirant who would flunk an eighth-grade civics exam”

3. Do Republicans really think Donald Trump will make a good Supreme Court choice?[4]

Trump is “a stupendously uninformed dilettante who thinks judges ‘sign’ what he refers to as ‘bills.’ There is every reason to think that Trump understands none of the issues pertinent to the Supreme Court’s role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters — arrogance leavened by frivolousness.”

“Trump’s multiplying Republican apologists do not deny the self-evident — that he is as clueless regarding everything as he is about the nuclear triad.”

4. If Trump is nominated, the COP must keep him out of the White House?[5]

“Donald Trump’s damage to the Republican Party, although already extensive, has barely begun. Republican quislings will multiply, slinking into support of the most anti-conservative presidential aspirant in their party’s history. These collaborationists will render themselves ineligible to participate in the party’s reconstruction.”

“If Trump is nominated, Republicans working to purge him and his manner from public life will reap the considerable satisfaction of preserving the identity of their 162-year-old party while working to see that they forgo only four years of the enjoyment of executive power.”

5. How entangled with Russia is Trump?[6]

After bewailing Trump’s many statements supporting Russia and Putin, Will says it “is unclear whether any political idea leavens the avarice of Trump and some of his accomplices regarding today’s tormented and dangerous Russia. Speculation about the nature and scale of Trump’s financial entanglements with Putin and his associates is justified by Trump’s refusal to release his personal and business tax information. Obviously he is hiding something, and probably more than merely embarrassing evidence that he has vastly exaggerated his net worth and charitableness.”

 Post- Nomination

 6. Trump’s shallowness runs deep [7]

Trump’s “speeches are . .syntactical train wrecks. . . . [He] rarely finishes a sentence. . . . [But maybe] he actually is a sly rascal, cunningly in pursuit of immunity through profusion.

“The nation, however, is . . . [being damaged] by Trump’s success in normalizing post-factual politics. It is being poisoned by the injection into its bloodstream of the cynicism required of those Republicans who persist in pretending that although Trump lies constantly and knows nothing, these blemishes do not disqualify him from being president.”

7. The sinking fantasy that Trump would defend the constitution,[8]

According to Will, “Trump knows nothing about current debates concerning the [Supreme Court’s]. . . proper role.”

Moreover, Trump has erroneous views on what Will regards as “the two most important [Supreme Court] decisions this century.

Trump has criticized Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010), which held corporations have a first amendment free speech right to make financial political contributions and which Will favors on the ground that “Americans do not forfeit their free-speech rights when they band together in corporate form to magnify their political advocacy.”

The other case, Kelo v. City of New London, 545 U.S. 469 (2005), held, 5-4, that a municipal government “behaved constitutionally when it bulldozed a residential neighborhood for the ‘public use’ of transferring the land to a corporation that would pay more taxes than the neighborhood’s residents paid to the government.” For Trump, his “interests as a developer and a big-government authoritarian converge in his enthusiasm for Kelo.” Will, however, thinks this decision “did radical damage to property rights.”

In addition, Will decries President Obama’s use of executive orders, which Trump promises to expand.

Conclusion

Although I disagree with George Will on the various political issues he discusses in these columns, I do endorse his condemnation of Donald Trump’s temperament, judgment and knowledge.

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[1] Diaz, George Will: Trump’s judge comments prompted exit from GOP, CNN (June 21, 2016).

[2] Will, Donald Trump relishes wrecking the GOP, Wash. Post (Feb. 21, 2016).

[3] Will, The albatross of a Trump endorsement. Wash. Post (Feb. 28. 2016).

[4] Will, Do Republicans really think Donald Trump will make a good Supreme Court choice, Wash. Post ( March 18, 2016).

[5] Will, If Trump is nominated, the GOP must keep him out of the White House, Wash. Post (April 29, 2016).

[6] Will, How entangled with Russia is Trump?, Wash. Post (July 29, 2016).

[7] Will, Trump’s shallowness runs deep, Wash. Post (Aug. 3, 2016).

[8] Will, The sinking fantasy that Trump would defend the constitution, Wash. Post (Aug. 5, 2016).

 

 

 

President Obama and Others Call for Republicans To Stop Backing Donald Trump

On August 2 at the White House President Obama said Donald Trump was “unfit to serve as president” and urged the leaders of the Republican Party to withdraw their backing for his candidacy.   This comment was part of a lengthy response to a reporter’s question at a joint press conference with Prime Minister Lee of Singapore. Many others have been voicing similar comments.

President Obama’s Statement[1]

President Obama
President Obama

“I think the Republican nominee is unfit to serve as President.  I said so last week, and he keeps on proving it.  The notion that he would attack a Gold Star family that had made such extraordinary sacrifices on behalf of our country, the fact that he doesn’t appear to have basic knowledge around critical issues in Europe, in the Middle East, in Asia, means that he’s woefully unprepared to do this job.”

“And this is not just my opinion. . . . [There also have been] repeated denunciations of his statements by leading Republicans, including the Speaker of the House and the Senate Majority Leader, and prominent Republicans like John McCain. . . . [They] have to ask themselves is, if you are repeatedly having to say in very strong terms that what he has said is unacceptable, why are you still endorsing him?  What does this say about your party that this is your standard bearer?  This isn’t a situation where you have an episodic gaffe.  This is daily, and weekly, where they are distancing themselves from statements he’s making.  There has to be a point in which you say, this is not somebody I can support for President of the United States, even if he purports to be a member of my party.”

“And the fact that that has not yet happened makes some of these denunciations ring hollow.  I don’t doubt their sincerity.  I don’t doubt that they were outraged about some of the statements that Mr. Trump and his supporters made about the Khan family.  But there has to come a point at which you say somebody who makes those kinds of statements doesn’t have the judgment, the temperament, the understanding to occupy the most powerful position in the world.”

“This “is different than just having policy disagreements.  I recognize that they all profoundly disagree with myself or Hillary Clinton on tax policy or on certain elements of foreign policy.  But there have been Republican Presidents with whom I disagreed with, but I didn’t have a doubt that they could function as President.  I think I was right, and Mitt Romney and John McCain were wrong on certain policy issues, but I never thought that they couldn’t do the job.  And had they won, I would have been disappointed, but I would have said to all Americans . . . this is our President, and I know they’re going to abide by certain norms and rules and common sense, will observe basic decency, will have enough knowledge about economic policy and foreign policy and our constitutional traditions and rule of law that our government will work, and then we’ll compete four years from now to try to win an election.”

“But that’s not the situation here.  And that’s not just my opinion; that is the opinion of many prominent Republicans.  There has to come a point at which you say, enough.  And the alternative is that the entire party, the Republican Party, effectively endorses and validates the positions that are being articulated by Mr. Trump. . . . [But] I don’t think that actually represents the views of a whole lot of Republicans.”

Others’ Comments About Trump

Meg Whitman
Meg Whitman

Similar thoughts were offered the same day by a prominent Republican and Hewlett Packard executive, Meg Whitman. Saying that Mr. Trump was “a dishonest demagogue” who could lead the country “on a very dangerous journey,” Whitman announced that she supported Hillary Clinton, including making a substantial donation to her campaign. Whitman also stated that she “absolutely” stood by her comments at a private gathering of Republican donors this year comparing Mr. Trump to Hitler and Mussolini.[2]

Richard Hanna
Richard Hanna

Representative Richard Hanna, Republican of New York, who called Mr. Trump “unfit to serve.” The Congressman added, “I was stunned by the callousness of his comments [about the Kahns]. I think Trump is a national embarrassment. Is he really the guy you want to have the nuclear codes?” The Representative also announced that he was planning to vote for Mrs. Clinton in the November election.[3]

Newt Gingrich, the former Republican Speaker of the House and a loyal Trump supporter said,

Former House speaker Newt Gingrich, one of Trump’s most loyal defenders, warned that his friend was in danger of throwing away the election and helping to make Democratic nominee Hillary Clinton president unless he quickly changes course. Said Gingrich, “The current race is which of these two is the more unacceptable, because right now neither of them is acceptable. Trump is helping her to win by proving he is more unacceptable than she is.” More generally “a feeling of despair and despondence . . . [has fallen] over the Republican establishment.” [4a]

Other advocates for Republicans to withdraw their endorsements and support for Mr. Trump were a Wall Street Journal editor, as discussed in a prior post; and the editorial board of the New York Times[4] and the Washington Post;[5] conservative columnist Michael Gerson; [6] conservative author and pubic servant, Robert Kagan;[7] University of Chicago Professor Harold Pollack;[8] and many other Republicans.[9]

From France came this comment by President François Hollande. He said Mr. Trump’s comments on the Khan family were “hurtful and humiliating” and his “excesses end up making you feel like you want to retch.”[10]

 Trump’s Reactions

Mr. Trump’s response to all this negative news? More of the same. On August 2 he said he had no regrets about his clash with the Khan family ; he declined to endorse for re-election several Republicans who had criticized him, including the House speaker, Paul D. Ryan of Wisconsin, and Senator John McCain of Arizona, who both face primaries this month.; and he had harsh words for Republican Senator Kelly Ayotte of New Hampshire, who had criticized his treatment of the Khans.[11]

The Republican vice presidential candidate, Mike Pence, however, on August 3 endorsed his “longtime friend” and a “strong conservative leader.” Paul Ryan. According to Pence, he had discussed his endorsement of Ryan with Trump on Wednesday morning and Trump had “strongly encouraged me to endorse Paul Ryan in next Tuesday’s primary.” [11a]

What will Trump now say about the federal judge of Mexican heritage, who on August 2 denied Trump’s motion to dismiss the case alleging that he had “knowingly participated in a scheme to defraud” with respect to Trump University. Instead, the judge ruled that this was an issue of fact that had to be resolved at trial.[12]

=======================================================

[1] White House, Remarks by President Obama and Prime Minister Lee of Singapore at Joint Press Conference (Aug, 2, 2016); Shear, Obama Says Republicans Should Withdraw Support for TrumpN.Y. Times (Aug. 2, 2016). 

[2] Meg Whitman, Calling Donald Trump a ‘Demagogue,’ Will Support Hillary Clinton for President, N.Y. Times (Aug. 2, 2016).

[3] Burns, House Republican Backs Hillary Clinton, Calling Donald Trump ‘Unfit to Service,” N.Y. Times (Aug. 2, 2016).

[4] Editorial, Mr. Trump and Spineless Republicans, N.Y. Times (Aug. 2, 2016).

[4a] Rucker & Balz, GOP reaches ‘new level of panic’ over Trump’s candidacy, Wash. Post (Aug. 3, 2016), https://www.washingtonpost.com/politics/gop-reaches-new-level-of-panic-over-trumps-candidacy/2016/08/03/de461880-5988-11e6-831d-0324760ca856_story.html?hpid=hp_hp-top-table-main_gop-120pm%3Ahomepage%2Fstory.

[5] Editorial, Donald Trump is a unique threat to American democracy, Wash. Post (July 22, 2016); Editorial, Is the G.O.P. turning on Mr. Trump?, Wash. Post (Aug.1, 2016) ttps://www.washingtonpost.com/opinions/is-the-gop-turning-on-mr-trump/2016/08/01/70b0a02c-581d-11e6-9aee-8075993d73a2_story.html.

[6] Gerson, Dear Republican leaders: it’s not too late to dump Trump, Wash. Post (Aug. 1, 2016), https://www.washingtonpost.com/opinions/republican-leaders–its-not-too-late-to-repudiate-trump/2016/08/01/6e9db5b4-5812-11e6-831d-0324760ca856_story.html?tid=hybrid_collaborative_1_na.

[7] Kagan, There is something very wrong with Donald Trump, Wash, Post (Aug. 1, 2016), https://www.washingtonpost.com/opinions/there-is-something-very-wrong-with-donald-trump/2016/08/01/73809c72-57fe-11e6-831d-0324760ca856_story.html?tid=a_inl.

[8] Pollack, Joe McCarthy was brought down by attacks on his decency. Trump will lose the same way, Wash. Post (Aug. 1, 2016), https://www.washingtonpost.com/posteverything/wp/2016/08/01/joe-mccarthy-was-brought-down-by-attacks-on-his-decency-trump-will-lose-the-same-way/?tid=a_inl.

[9] Blake, A former Christie aide is latest Republican to back Clinton, and the list is growing, Wash. Post (Aug. 2, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/06/30/heres-the-growing-list-of-big-name-republicans-supporting-hillary-clinton/.

[10] Breeden, France’s President Says Trump’s ‘Excesses’ Make People ‘Want to Retch,’ N.Y. times (Aug. 3, 2016) . http://www.nytimes.com/2016/08/04/world/europe/francois-hollande-donald-trump.html?ref=world&_r=0.

[11] Burns, Ignoring Advice, Donald Trump Presses Attacks on Khan Family and G.O.P. Leaders, N.Y. Times (Aug. 2, 2016) http://www.nytimes.com/2016/08/03/us/politics/donald-trump-gop.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=rank&module=package&version=highlights&contentPlacement=2&pgtype=sectionfront; Corasanti, Donald Trump Refuses to Endorse Paul Ryan and John McCain, N.Y. Times (Aug. 2, 2016), http://www.nytimes.com/2016/08/03/us/politics/donald-trump-refuses-to-endorse-paul-ryan-and-john-mccain.html?ref=politics.

[11a] Johnson, Mike Pence ‘strongly’ endorses Paul Ryan, as Trump refuses to do the same, Wash. Post (Aug. 3, 2016),https://www.washingtonpost.com/news/post-politics/wp/2016/08/03/mike-pence-strongly-endorses-paul-ryan-as-trump-refuses-to-do-the-same/?hpid=hp_hp-top-table-main_pence-2pm%3Ahomepage%2Fstory.

[12] Eder, Federal Judge Allows Suit Against Trump University to Proceed, N.Y. Times Aug. 2, 2016) http://www.nytimes.com/2016/08/03/us/politics/trump-university-case.html?

 

 

Wall Street Journal Editor Castigates Donald Trump

The Wall Street Journal has long been a strong voice for conservative policies and Republican candidates and office-holders.

It, therefore, is noteworthy that on August 1, Bret Stephens, the Deputy Editor of the Journal’s Editorial Page, concluded that Donald Trump had joined the group of American politicians of “permanent dishonor:” Huey Long, Charles Coughlin, Alger Hiss, Joe McCarthy and Bull Connor. Moreover, Stephens said,” those who supported and excused them will always be tainted by association.”[1]

Of all of Trump’s “vile irruptions—about Sen. John McCain’s military record, or reporter Serge Kovaleski’s physical handicap, or Judge Gonzalo Curiel’s judicial fitness—his casual smear of Ghazala Khan is perhaps the vilest.”

“What makes Mr. Trump’s remarks so foul is their undisguised sadism. He took a woman too heartbroken and anxious to speak of her dead son before an audience of millions and painted a target on her. He treated her silence as evidence that she was either a dolt or a stooge. He degraded her.”

This comment constituted “the full unmasking of Mr. Trump, in case he needed further unmasking. He has, as Humayun’s father Khizr put it, a ‘black soul.’ His problem isn’t a lack of normal propriety but the absence of basic human decency. He is morally unfit for any office, high or low.”

Thus, the “central issue in this election . . . [is Trump’s] character, such as it is. The sin, in this case, is the sinner.” (Italics in original.)

Now leaders of the Republican Party must stop campaigning for Trump, Stephens says. “It will not do for Republicans to say they denounce Mr. Trump’s personal slanders; his nativism and protectionism and isolationism; his mendacity and meanness and crassness; his disdain for constitutional protections—and still campaign for his election. There is no redemption in saying you went along with it, but only halfway; that with Mr. Trump you maintained technical virginity. To lie down with him is to wake up with him. It’s as simple as that.”

==================================================

[1] Stephens, To the Go-Along Republicans, W.S.J. (Aug. 1, 2016).

Wall Street Journal Publishes President Obama’s Plea for a Senate Hearing and Vote on Nomination of Merrick Garland to U.S. Supreme Court

On July 17 the Wall Street Journal, which usually is opposed to President Obama, published President Obama’s plea for a U.S. Senate hearing and vote on the President’s nomination of Judge Merrick Garland to fill the vacancy on the U.S. Supreme Court.[1] Here is what the President wrote.

“For more than 40 years, there has been an average of just over two months between a president’s nominating someone to the Supreme Court and that person’s receiving a hearing in Congress. It has now been more than four months since I nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit—and Congress left town for a seven-week recess without giving him a hearing, let alone an up-or-down vote.”

“This is much more serious than your typical case of Washington dysfunction. And if we allow it to continue, the consequences of congressional inaction could weaken our most important institutions, erode public trust and undermine our democracy.”

“Every Supreme Court nominee since 1875 who hasn’t withdrawn from the process has received a hearing or a vote. Even when the nominee was controversial. Even when the Senate and the White House were held by different parties.”

“But Chief Judge Garland isn’t controversial. He has more federal judicial experience than any Supreme Court nominee in our history. He is widely respected by people of both political parties as a man of experience, integrity and unimpeachable qualifications. The partisan decision of Senate Republicans to deny a hearing to a judge who has served his country with honor and dignity is not just an insult to a good man—it is an unprecedented escalation of the stakes. It threatens the very process by which we nominate judges, regardless of who our next president is. And it should concern every American who cares about the rule of law and upholding the institutions that make our democracy work.”

“Here’s why. Historically, when a president nominates a Supreme Court justice—regardless of when in the presidential term this occurs—the Senate is obligated to act. Senators are free to vote their conscience. But they vote. That’s their job.”

“If Republicans in the Senate refuse even to consider a nominee in the hopes of running out the clock until they can elect a president from their own party, so that he can nominate his own justice to the Supreme Court, then they will effectively nullify the ability of any president from the opposing party to make an appointment to the nation’s highest court. They would reduce the very functioning of the judicial branch of the government to another political leverage point.”

“We cannot allow the judicial confirmation process to descend into an endless cycle of political retaliation. There would be no path to fill a vacancy for the highest court in the land. The process would stall. Court backlogs would grow. An entire branch of government would be unable to fulfill its constitutional role. And some of the most important questions of our time would go unanswered.”

“This is troubling for two reasons. First, a functioning judiciary—at every level—is essential to the business of the nation. For example, last month, a deadlocked Supreme Court was unable to reach a decision on several major issues, leaving the law itself in limbo. Across the country, judicial vacancies are leaving some lower courts so overwhelmed they can barely make it through their dockets. Twenty-nine judicial emergencies have been declared by lower courts across the country. This has real implications for jurisprudence, real financial costs to the judicial system and real consequences in the lives of people awaiting the outcomes of those cases.”

“Second, treating the Supreme Court like a political football makes the American people more cynical about democracy. When the Supreme Court becomes a proxy for political parties, public confidence in the notion of an impartial, independent judiciary breaks down. And the resulting lack of trust can undermine the rule of law.”

“So here’s an idea. Democrats and Republicans in the Senate could agree to give Chief Judge Garland a hearing when they return from their extended recess, while also committing to give every future qualified Supreme Court nominee a hearing and a vote within an established time frame. It’s a good idea that my predecessor, President George W. Bush, suggested during his time in office. This reasonable proposal would prevent the confirmation process from breaking down beyond repair, and help restore good faith between the two parties.”

“In my travels around the world as president, I have seen how hard democracy is—how it takes more than a proclamation or even an election. Democracies depend on the institutions we build, the rules upon which the nation is founded, and the traditions, customs and habits of heart that guide our behavior and ensure that political differences never override the founding ideals that bind us. And it is on us—all of us—to preserve and protect them.”

“Now we need Congress to act. We need senators to demonstrate that, once again, America has the capacity to rise above disagreements and maintain a fidelity to the values that, for 240 years, have made this extraordinary experiment a success. That’s what the American people deserve—and it’s what makes ours the greatest country the world has ever known.”

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[1] President Obama, Merrick Garland Deserves a Vote—For Democracy’s Sake, W.S.J. (July 17, 2016).

Cuba’s Possession of U.S. Missile Threatens To Disrupt U.S.-Cuba Normalization

On January 7, 2016, it became publicly known through a Wall Street Journal article that since sometime in 2014 Cuba has had possession of an inert U.S. missile that was erroneously shipped to Cuba from Europe.[1] This post will discuss what is now known about this missile in Cuba and the reactions to this news.

Diversion of U.S. Missile to Cuba

Hellfire missile
Hellfire missile

The object is a dummy U.S. Hellfire missile without any explosives that is a laser-guided, air-to-surface weapon that weighs about 100 pounds and that can be deployed from an attack helicopter or an unmanned drone.

Its manufacturer, Lockheed Martin, in early 2014, with U.S. State Department authorization, shipped the missile from Orlando, Florida to Spain for a NATO training exercise for later return to the U.S. After the completion of the training exercise, it was packaged in Rota, Spain and sent on another freight-forwarder’s truck to Madrid, where it was sent by plane to Frankfurt, Germany. There it was supposed to have been shipped to Lockheed in Florida. Instead for unknown reasons it was shipped from Frankfurt to Paris on an Air France flight, and from Paris to Havana on another Air France flight. Upon its arrival in Cuba, a Cuban official noticed the labeling on the crate and seized it.

Around June 2014 Lockheed, after realizing the missile was missing and likely was in Cuba, notified the U.S. State Department. Thereafter the U.S. has been pressing the Cuban government for information about the missile and for Cuba to return it to the U.S., but Cuba has not responded.

During the summer of 2014, of course, the U.S. and Cuba were engaged in the final steps leading up to the December 17, 2014, announcement that the two countries were embarked upon normalization of relations. Since then, they have been taking various steps toward normalization.

The reason for the shipment to Cuba is unknown. Was it a stupid mistake by a freight forwarder or several of such companies? That I find difficult to believe. That seems to leave it being an intentional criminal or espionage act.

The U.S. is concerned that Cuba has or could give access to the missile to learn about its technology to Russia, China or North Korea. But an article by someone who apparently is technically sophisticated in such matters discounts such dire consequences because “there’s good reason to suspect that China and other large cyber powers might already have blueprints and more, thanks to the still-vague scope of several highly successful military cyber attacks;” because “the US sells thousands upon thousands of working Hellfires to ‘close military ‘allies’ like Iraq, Saudi Arabia, and Turkey;” and because “the fall of Iraq’s Mosul to forces from ISIS . . . led to about $700 million worth of working Hellfire missiles falling into the hands of terrorists.”[2]

 Criticism of the Obama Administration[3]

Unsurprisingly this news has prompted severe criticism of the Administration.

U.S. Senator Marco Rubio (Rep., FL), a Republican presidential candidate, voiced his criticism in a letter to Assistant Secretary of State for Western Hemisphere Affairs, Roberta Jacobson. Rubio opened with the seemingly incontrovertible statement, “Preventing the proliferation of sensitive U.S. technology is one of the most important duties carried out by the State Department.” Because Jacobson has been so deeply involved with normalization negotiations with Cuba, she was asked these questions:

  • “When was the State Department informed that a U.S. Hellfire missile had been sent to Cuba?
  • When were you personally first informed of this matter and by whom?
  • What has been done to obtain the missile’s return by the Cuban government?
  • What specific entity of the Cuban government is currently in possession of the missile?
  • Please provide a list of the specific occasions on which you or other U.S. Government officials have raised this issue with the Castro regime.
  • Why was the return of the missile not obtained as a result of the negotiations that led to President Obama’s December 17, 2014 announced change in U.S. policy toward Cuba?
  • Why was the return of the missile not a condition of removal of Cuba from the State Sponsors of Terrorism list?
  • Why was the return of the missile not a condition of establishment of embassies in Havana and Washington?
  • What members of Congress did you inform of this issue during your briefings and testimony regarding U.S. policy toward Cuba over the last 18 months?
  • Does the State Department know if the Cuban government shared the missile or its design with any foreign governments?”

The Rubio letter concluded, “Sensitive U.S. technology falling into the hands of such a regime [as Cuba’s] has significant implications for U.S. national security.  The fact that the administration, including you, have apparently tried to withhold this information from the congressional debate and public discussion over U.S.-Cuba policy is disgraceful.”

Also on Friday, Republican presidential candidate Jeb Bush tweeted: “Whether it’s Iran holding U.S. citizens hostage or Cuba holding a U.S. missile hostage, Obama always caves. I won’t.’’

Four other lawmakers critical of the Obama position toward Cuba also criticized the handling of the missile case. In a joint statement, Reps. Ileana Ros-Lehtinen (R., Fla.), Mario Diaz Balart (R., Fla.), Carlos Curbelo (R., Fla.) and Albio Sires (D., N.J.) said:

  • “Regardless of how Cuba came into possession of a U.S. Hellfire missile – which must be investigated – it is unconscionable that the Obama administration knew the Castros were in possession of this sensitive U.S. military technology since June 2014 and still moved forward with its policy to open up travel, trade, investment and diplomatic relations with the regime.”
  • “The fact that the Castro regime was able to acquire a U.S. Hellfire missile could be indicative of the lengths it is willing to go to undermine our national security and harm our interests. Congress must provide oversight to determine how the U.S. export control system failed to prevent this gross violation from occurring, and if Cuba’s espionage apparatus played a role in this Hellfire acquisition.”
  • “The Cuban regime rebuffed the President’s efforts to secure the return of the Hellfire missile even as the negotiations were ongoing, and yet the regime still got everything it could have wanted. It is no wonder that the Castro brothers feel ever more emboldened to continue on with the repression of the Cuban people, with intimidation and unlawful arrests at an alarmingly high rate.”
  • “This is a very serious breach and we are deeply concerned that the Castros have already shared the sensitive technology with the likes of Russia, North Korea or China. . . . We urge the Administration to start holding the Cuban regime accountable for its continued transgressions not only against its own people, but its continued disregard for international norms.”

Senator Ron Johnson (Rep., WI), the Chair of the Committee on Homeland Security and Government Affairs, sent a letter to the heads of the Pentagon and the State Department, asking for an explanation “why the U.S. military would forgo complete control, care, and custody of such cargo when transporting it abroad.’’ Mr. Johnson also asked the administration for details of any other lost shipments of sensitive technology over the past five years.

Administration’s Response to Criticism[4]

White House spokesman Josh Earnest said on January 8 that the administration takes the issue very seriously. “The Department of Defense and the State Department are, again, I think for obvious reasons, quite interested in getting to the bottom of exactly what happened.’’

The same day the U.S. State Department spokesman, John Kirby, said, “I am restricted under federal law and regulations from commenting on specific defense trade licensing cases and compliance matters. What I can say is that under the Arms Export Control Act the State Department licenses both permanent and temporary exports by U.S. companies of regulated defense articles. U.S. companies are responsible for documenting their proposed shipping logistics in the application of their export license as well as reporting any shipping deviations to the department as appropriate.”

Conclusion

Although I have been, and still am, a strong advocate for U.S.-Cuba reconciliation, I am very troubled by the news of this missile ending up in Cuban hands and of its diversion in mid-2014 apparently not affecting U.S. negotiation of normalization. Final assessment has to await Assistant Secretary Jacobson’s responses to Senator Rubio’s questions and other news about this situation. I pray that it does not disrupt or sabotage further progress towards normalization.

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[1] Barrett & Lubold, Missing U.S. Missile Shows Up in Cuba, W.S.J. (Jan. 7, 2016); Reuters, Inert U.S. Hellfire Missile Wrongly Shipped to Cuba in 2014:WSJ, N.Y. Times (Jan. 7, 2016); Assoc. Press, Dummy Hellfire Missile Mistakenly Shipped to Cuba, N.Y. Times (Jan. 8, 2016); Ayuso, The mystery of the US missile ended in Cuba, El Pais (Jan. 9, 2016).

[2] Templeton, It probably won’t matter Cuba got a dummy Hellfire missile—and that’s terrifying, ExtremeTech (Jan. 9, 2016).

[3] Barrett & Lubold, Republicans Criticize Obama Administration Over Missile Sent to Cuba, W.S.J. (Jan. 8, 2015); Missile that turned up in Cuba ignites backlash, Miami Herald (Jan. 8, 2016); Rubio, Rubio Demands Answers From Administration On U.S. Missile in Cuba’s Possession (Jan. 8, 2016); Ros-Lehtinen, Ros-Lehtinen, Diaz-Balart, Curbelo and Sires Make Joint Statement Regarding Unaccounted U.S. Hellfire Missile Acquired by the Castro Regime (Jan. 8, 2016)

[4] U.S. Dep’t of State, Daily Press Briefing (Jan. 8, 2016).

 

 

American People’s Reactions to U.S.-Cuba Reconciliation

After looking at international, Cuban and U.S. Government reactions to the December 17th announcement of U.S.-Cuba reconciliation, we now examine the reactions of the American people.

Those reactions can be obtained from public opinion polls and the views of prominent Americans, newspapers and business interests and from efforts to promote understanding of the issues and congressional support of the changes.

American public opinion polls consistently have shown that a majority of Americans favor reestablishing relations with Cuba. In April 2009 the favorable opinion ranged from 60% to 71% with the opponents from 20% to 30%. In April 2014 it was 51% to 20%, and in October 2014, 56% to 29%. [1]

This was confirmed just after President Obama’s December 17th announcement of the breakthrough with Cuba in a poll conducted by ABC News and the Washington Post. Re-establishing diplomatic relations was supported, 64% to 31%. Ending the embargo, 68% to 29%. Ending travel restrictions, 74% to 24%. [2]

On January 19, 2015, over 70 prominent Americans sent a letter to President Obama ”commending [him] on the historic actions [he is] taking to update America’s policy toward Cuba and Cuban citizens. Our new posture of engagement will advance our national interests and our values by empowering the Cuban people’s capacity to work towards a more democratic and prosperous country–conditions that are very much in the U.S. interests.” [3]

The New York Timeseditorial of December 18, 2014, “Mr. Obama’s Historic Move on Cuba,” stated that the changes in U.S. relations with Cuba “ends one of the most misguided chapters in American foreign policy. The White House is ushering in a transformational era for millions of Cubans who have suffered as a result of more than 50 years of hostility between the two nations.” 

The Wall Street Journal’s editorial on the announcement of the changes first admitted that “20 years ago these columns called for lifting the U.S. trade embargo on Cuba. We did so to assist the impoverished Cuban people and perhaps undermine the regime.” The Journal, however, went on to argue that “Mr. Obama’s approach will provide immediate succor to the Castro government in the hope of eventually helping the Cuban people.”  A similar negative view was expressed by the Journal’s conservative columnist, Mary Anastasia O’Grady, “So How’s That Cuba Deal Going?” Another of the Journal’s conservative columnists, Peggy Noonan, however, reached a different conclusion in her article, “The Cuban Regime is a Defeated Foe: In time, normalized relations will serve the cause of freedom.

An even more negative review was provided in the Washington Post’s editorial, “President Obama’s ‘betrayal’ of Cuban democrats.” 

On January 8, 2015, the United States Agricultural Coalition for Cuba was launched by 30 companies and other organizations “to strive to turn Cuba from an enemy to an ally . . . by building trade relations with an honest appraisal of the past and a fresh look to the future.” This mission is based upon the beliefs that “the improvement of agricultural trade between the U.S. and Cuba is the foundation for building successful and enduring relations between the two countries” and that “an increased exchange of ideas, knowledge, capital and credit will benefit both countries.” Speaking in support of this Coalition were U.S. Secretary of Agriculture (Tom Vilsack), Governor of Missouri (Jay Nixon), U.S. Senators Amy Klobuchar (Dem., MN) and Jerry Moran (Rep., KS) and U.S. Representatives Sam Farr (Dem., CA), Kevin Cramer (Rep., ND) and Rodney Davis (Rep., IL).

Another supporter of the reconciliation, including the ending of the embargo, is the U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations. On December 17, 2014, it stated, ““The U.S. business community welcomes today’s announcement, and has long supported many of the economic provisions the president touched on in his remarks. We deeply believe that an open dialogue and commercial exchange between the U.S. and Cuban private sectors will bring shared benefits, and the steps announced today will go a long way in allowing opportunities for free enterprise to flourish. The Chamber and its members stand ready to assist as the Cuban people work to unleash the power of free enterprise to improve their lives.”

CodePINK (Women for Peace) has started a campaign to have citizens: “Tell Congress that you support the President’s effort to improve US-Cuba relations, and you’d like them to go even further by lifting all travel restrictions, take Cuba off the terrorist list, and return Guantanamo naval base to the Cuban people.” 

An important event to promote Minnesotans understanding of these issues will be on February 23rd (9:30-11:00 a.m.): “Modernizing U.S.-Cuba Relations Summit.” [4] This Summit has been called by our Senator Amy Klobuchar, a self-identified “strong supporter of normalizing ties with Cuba and increasing travel and commerce that could create new economic opportunities for American farmers and businesses while increasing the quality of life for Cubans.” After the Senator’s opening remarks, the keynote speaker will be Michael Scuse (Undersecretary for Farms and Foreign Agricultural Services, U.S. Department of Agriculture). The Senator will then moderate a panel discussion with Dave Fredrickson (Commissioner, Minnesota Department of Agriculture), Devry Boughner Verwerk (Cargill Incorporated’s Director of Latin American Corporate Affairs and Chair of the U.S. Agricultural Coalition for Cuba), Rodolfo Gutierrez (Executive Director, Hispanic Advocacy and Community Empowerment through Research) and Ralph Kaehler (Minnesota farmer who has participated in trade missions to Cuba).

I am helping to organize Minnesotans for U.S.-Cuba Reconciliation to inform the citizens of our state about the importance of this breakthrough and to mobilize public opinion to persuade our representatives in Congress to support the various measures to implement such reconciliation.

Conclusion

Now is the time for U.S. citizens who want to see our country reconciled with Cuba to be active. Say thank you and support, politically and financially, senators and representatives who support this effort. Identify those in Congress who appear to be open to this point of view from the citizenry and communicate your views to them. Write letters to the editor or op-ed articles for publication. Or, like me, research and write blog posts on the issues. Talk with your friends and colleagues.

Fellow Minnesotans should contact me to join Minnesotans for U.S.-Cuba Reconciliation. Citizens in other states, I hope, will organize similar groups.

I also invite comments to this post with corrections or additional facts and sources regarding the American people’s reactions to this important change in our country’s relations with Cuba.

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[1] Edwards-Levy, Polls Show Support for U.S. To Re-Establish Ties with Cuba, Huff. Post (Dec. 18, 2014); Dugan, Americans on Cuba: For Normalized Relations, but Party Divide Exists, Gallup (Dec. 18, 2014). 

[2] Holyk, Poll Finds Broad Public Support for Open Relations with Cuba, abc News (Dec. 23, 2014).

[3] Fuerte, Prominent USA personalities Urge Obama to Deepen Relationship with Cuba, Havana Times (Jan 19, 2015). The signers of the letter included Bruce Babbitt (former Governor of Arizona and former U.S. Secretary of the Interior), Harriett Babbitt (former U.S. Ambassador to the Organization of American States), Samuel Berger (former U.S. National Security Advisor), Chet Culver (former Governor of Iowa), Francis Fukuyama (Stanford University), Dan Glickman (former U.S. Congressman and former U.S.Secretary of Agriculture). Thomas Pickering (former U.S. Ambassador and former U.S. U.S. Under Secretary of State for Political Affairs), Bill Richardson (former Governor of New Mexico and former U.S. Ambassador to the U.N.), Ken Salazar, former Colorado Attorney General, former U.S. Senator and former U.S. Secretary of the Interior), George Schultz (Former U.S. Secretary of State, Treasury and Labor) and Strobe Talbott (former U.S. Deputy Secretary of State).

[4]  The Summit will be at at the University of Minnesota College of Continuing Education, Room 135, 1890 Buford Avenue, St. Paul, MN 55108. It is free and open to the public. Please RSVP to Clara_Haycraft@Klobuchar.senate.gov.