IN PRAISE OF THE 70s CROWD

hey used to refer to us behind our backs as “the over-the-hill” crowd. Adults in their 70s started “forgetting” their birthdays, and even fudging their ages on resumes for fear that they would be passed over for jobs due to “ageism,” the implicit bias against old people.

Not so much anymore. People in their 70s seem to be ruling the world, or at least much of it. Special Counsel Robert Mueller was appointed to perhaps the most important job of his life after he hit the age of 70, and his senior, Bernie Sanders, seemed driven through the Presidential primary campaign by a near-boundless source of energy at the ripe young age of 73. If only the DNC had not wanted to play it so safe, deciding to go with Hillary (no spring chicken herself). Who decided that a 73-year old unabashed Socialist couldn’t get elected as President? If a reality show star who apparently (according to Michael Wolff) can’t read and has the attention-span of a 6-year old with ADD on Ritalin can make it to the White House, then anyone can!

  1. To be sure, we are on the “back nine,” but that does not mean that we should be sidelined or counted out of the game. I recently went to see my orthopedic surgeon for a hip X-ray. I had been avoiding making an appointment for months – perhaps years – since I was in deep denial of the increasingly obvious reality that I needed a hip replacement. After all, I had run over 24 New York Marathons and completed some of them under 3 hours, which is fairly respectable for an aging amateur. But in recent years, I had joined the Achilles Team of disabled runners, where I would act as an informal “guide” to one or more of my permanently disabled running colleagues, who did not have the same surgical options as I did to “cure” my growing disability.

My orthopedic surgeon specialized in sports medicine. A large poster in his waiting room urged his patients to “Get Back In the Game.” When he informed me of the obvious, that I had been running with “bone on bone” for years, I asked him if a could still run marathons with the new hip. He just looked at me and slowly nodded. Not in a good way. But who knows. I may surprise him yet. You can no longer count us “old codgers” out!

No one reacts much anymore when they learn that I have a 10-year old son. A generation ago, I would have been shunned or whispered about as a “dirty old man.” But not anymore. One of my closest colleagues and contemporary has an 11-year old son. No big deal. In fact, did you know that Medicare will pay us, seniors, a bonus for raising a minor child? I didn’t know it at the time, and it wasn’t part of my financial planning for my “golden years,” but it certainly came as a pleasant surprise.

I also have several other children running up to the age of 38, which also is not that unusual these days. Of course, it usually takes two plus marriages, which is what happened in my case. My wife is somewhat younger, which you may have already surmised, but she got her hip replaced before me. Nothing to do with age, though. She had always been an avid skier and competitive tennis player. “Better to wear it out than rust it out,” she is fond of saying. Now we will have something else to share; yet another bond between us (new hips). In fact, with a new hip, doesn’t the average age of your body parts go down?

Our next youngest is 23, and he just completed his Marine basic training at Parris Island, South Carolina. These days, it is not unreasonable for me to expect actually to be around and functioning reasonably well (albeit in my 90s) if he spends his full career as a Marine and retires in 20 years.

And that brings us to Donald J. Trump, who seems to be giving all of us 70-somethings a bad name. Steve Bannon apparently told the author Michael Wolff that Trump “had lost it,” or words to that effect. The rest of the White House staff and close family members seem to concur. Sad as he often tweets, since he has never learned the fine art of emailing. There is an exception to every rule. Maybe someone should take that “big nuclear button” away from him before he hurts himself, and blows up the world in the process. If he were in a senior living facility, they would probably have already taken any real silverware away from him and issued him a spork. How could the American people have been so thoughtless as to have given an increasingly deranged man the nuclear codes?

Won’t somebody do something? After all, I wrote up a 20-year plan for myself on New Year’s Day, and I would like to be permitted the opportunity to execute that plan. Thank you very much.

THE DOSSIER: ROADMAP FOR THE MUELLER INVESTIGATION

Recent reporting has disclosed that Christopher Steele, the former British MI-6 agent and author of the infamous 35-page Dossier on alleged Trump/Russian collusion, has been meeting with members of Mueller’s Special Counsel’s Office. While this is indeed newsworthy, the reliance by federal law enforcement on portions of the Dossier as a virtual roadmap of Russian interference in the 2016 Presidential election campaign has been ongoing for many months now, as first reported by Business Insider in March 2017.

In fact, long before BuzzFeed published the entire Dossier in January 2017, Steele was already cooperating with the FBI investigation, and the FBI even considered putting Steele on the federal payroll to ensure his continued assistance. No compensation was given him, but the mere fact that it was seriously considered highlights the value that federal law enforcement placed on the material he had already gathered.

Publicly, the Dossier has become a lightning rod for criticism. Both Donald Trump and Vladimir Putin immediately denounced the Dossier’s contents as “fake news,” and Trump refused to take questions from Jim Acosta of CNN, which had published a report about the Dossier, but not its entire contents. Putin echoed Trump’s denunciations in even more colorful terms, calling the Dossier “rubbish” and referring to those who leaked the document as being “worse than prostitutes.” He quickly added, however, that Moscow prostitutes “were the best in the world,” which seemed rather odd since the more salacious allegations in the Dossier referenced Mr. Trump’s supposed liaisons with prostitutes while visiting Moscow.

The reaction from the mainstream press ranged from extreme skepticism to outright dismissal, with virtually every news outlet referring to the Dossier’s allegations as “unverified.”  Few commentators at the time noted the irony that the identical language used by both the White House and the Kremlin to denounce the Dossier itself tended to corroborate the allegations of collusion.

Many of those who sought to discredit the Dossier dissected it with the working assumption that if some of the Dossier’s contents could be shown to be inaccurate, then all of it could be rejected. It was repeatedly pointed out, for example, that Alfa Bank, one of the Russian banks regularly used by Russian intelligence to move money around the globe, was mistakenly referenced in the Dossier as “Alpha Bank.” Commentators questioned how, if Steele misspelled the names of key players, he could be relied upon to have gotten anything right.

This criticism based upon relatively minor mistakes in the Dossier struck me as fundamentally unfair. As a former federal prosecutor who had reviewed literally thousands of FBI reports (known as “302s”) I knew that if I disregarded the entirety of every document that contained spelling errors, there would be few reports left to rely on. Law enforcement agents and intelligence officers are trained to get their investigative results and interview notes into written reports as quickly as possible, so Steele well knew the importance of getting his intelligence information down on paper as quickly as possible. As a result, the Dossier was not – as some erroneously think – a highly polished final report; instead, it was a series of a dozen or more separate memos strung together in sequential order as new information became available to him. Small wonder, then, that much of it reads like a first draft.   

The Dossier has also withstood scrutiny by U.S. law enforcement and intelligence community because at least several of its allegations have already been verified, while few (if any) have been found to be unfounded. In particular, the Dossier’s claim that the Trump campaign had agreed to minimize U.S. opposition to Russia’s incursions into Ukraine has been circumstantially confirmed by U.S. law enforcement and intelligence agencies, and even by the press.

During the 2016 Republican convention, Trump campaign operatives under the direction of Paul Manafort, Trump’s campaign manager, and J.D. Gordon, a senior Trump national security expert, succeeded in watering down the Party’s platform eliminating a proposal that the beleaguered Ukraine government be provided with “lethal weapons” by the U.S. Throughout the campaign, Trump had been saying nice things about Russia in general, and Vladimir Putin in particular, but the change in the Republican Party platform was something tangible on which  Trump could deliver as a tangible gesture of goodwill. Since party platforms are largely ignored, it may have represented only a small token, but it was an indication of what Trump could do for those who helped him in the unlikely event that he won the election.

Further evidence supporting the Dossier’s validity surfaced on February 10, 2017, when CNN reported that multiple U.S. officials had corroborated some communications between “senior Russian officials and other Russian individuals” described in the Dossier. Sources told CNN that these conversations had been “intercepted during routine intelligence gathering.” CNN further reported that such corroboration gave “US intelligence and law enforcement ‘greater confidence’ in the credibility of aspects of the dossier.”

  Last week, even some of the Republican leadership in Congress, including Senator Richard Burr, Chairman of the Senate Intelligence Committee, begrudgingly conceded that at least some of the “timeline” in the Dossier had been corroborated. Nevertheless, Burr personally criticized Steele for supposedly refusing to meet with the Committee, an allegation that the Steele camp roundly denied.

Thus, although the full extent to which the Dossier’s allegations hold up is not yet known, it has unquestionably been a major source of information and leads for U.S. investigators. Anyone who says differently is just spreading “fake news.”

JARED KUSHNER HAD CLOSE BUSINESS TIES WITH RUSSIA LONG BEFORE HE MET WITH THE RUSSIAN AMBASSADOR

The media is understandably fascinated by the revelation that Jared Kushner and Michael Flynn met with Russian Ambassador Kislyak at Trump Tower on December 1 or 2, 2016 (the White House has been rather vague as to the exact date). Apparently neither Kushner nor Flynn disclosed the meeting on their security clearance forms. Both of them have a lot of explaining to do. Not only was the meeting undisclosed, but the alleged reason for the meeting was highly unorthodox. According to an intercepted communication between the Ambassador and the Kremlin, Kushner had requested that the Russians give him access to a backchannel communications facility at the Russian embassy. His apparent intent was that he wanted to communicate directly with Moscow, free from the prying eyes and ears of the FBI and U.S. intelligence agencies.

It also recently has been disclosed that Kushner had another undisclosed meeting during the Transition period with Sergey Gorkov, a KGB graduate and head of Vnesheconombank (VEB), the Russian state-owned bank that has been subject to U.S. sanctions. This bank has also been linked to Russian spy operations in the U.S.

While Kushner’s apparent level of trust in the Russians demonstrated by his meeting with Kislyak and Gorkov may be surprising, it was not completely unexpected. Kushner has strong business relationships with Russian individuals and companies tied to Russia and Vladimir Putin. In some cases, these relationships have been in place for many years.

In May 2015, Kushner’s real estate company paid $295 million for the majority share in the former New York Times Building on West 43rd Street in Manhattan as part of a deal with Lev Leviev, the Uzbek-Israeli “King of Diamonds” with close ties to Vladimir Putin. Leviev serves as chairman of Africa Israel Investments Ltd., which has a Russian subsidiary, AFI Development PLC, a public company traded on the London Stock Exchange which is one of the largest real estate development companies in Russia. Leviev is also chairman of the Federation of the Jewish Communities of the CIS (former Soviet republics), and is closely associated with Rabbi Berel Lazar, the Chief Rabbi of Moscow who is often referred to in the Jewish press as “Putin’s rabbi.”

In November 2014, Kushner and his brother Joshua also formed a real estate investment company – Cadre – which attracted substantial venture capital from Russian high-tech billionaire Yuri Milner. As founder of the investment firms Digital Sky Technologies (now called Mail.ru Group) and DST Global, Milner’s net worth went from zero to $12 billion in two years as a result of his investments in Facebook and other social media platforms. Milner also owned the largest Internet providers in Russia and elsewhere in eastern and central Europe.

Other Russian and Chinese investors who invested in Cadre and other Kushner companies were rewarded with U.S. visas as part of the EB-5 program. The program gives investors putting at least $500,000 into American companies a two-year visa and a pathway to U.S. citizenship.

Kushner and his wife, Ivanka, are also close friends with Russian billionaire and Putin crony Roman Abramovich and his wife, Dasha Zhukova. Ivanka invited her close friend Dasha to the Trump Inauguration in January 2017, and they have been frequently spotted together at the U.S. Open tennis tournament and other events.

Abramovich, who is perhaps best known as the owner of the legendary Chelsea Soccor club in London, was reported by BBC to have given a $35 million yacht to Putin as a “gift.” Abramovich is also the Chairman of the Board of Trustees Federation of Jewish Communities in Russia (FJCR), which is a major supporter and ally of President Vladimir Putin within Russia.

Abramovich has a one-third interest in Evraz PLC, one of the world’s largest steel manufacturing companies. Through one of its Canadian subsidiaries, Evraz supplied about 40% of the steel used for the construction of the controversial Keystone XL pipeline in North Dakota.

One of Trump’s first actions in office was to sign an executive order expediting the approval of the Keystone pipeline. Construction of the pipeline had been halted by the Obama Administration in November 2015 based on environmental and other concerns. One of Trump’s campaign promises was to reverse this Obama order and to finish construction of the pipeline. Owned by TransCanada, the pipeline is intended to move Canadian tar sands oil southward through the Dakotas to Illinois, Oklahoma, and Texas. On January 24th, Trump also signed another executive order requiring that the steel for all U.S. pipelines had to be made in the U.S. to the “maximum extent possible.” Two days later, TransCanada filed a presidential permit application for the Keystone pipeline with the U.S. Department of State, which was granted.

Ironically, much of the steel to be used for the Keystone pipeline had already been manufactured outside the U.S. by Abramovich’s company Evraz, and was sitting in a field in North Dakota waiting to be used once Trump “green lighted” the project. Evraz had lobbied heavily against provisions that would have mandated that all of the Keystone steel be made in the U.S., and they got their wish when Trump’s executive order contained enough “wiggle room” to ensure that all of Evraz’s foreign manufactured steel was used on the pipeline. Just to be doubly sure, Trump spokesperson Sarah Huckabee Sanders announced on March 3, 2017 that Trump’s executive order requiring that U.S. steel be used on U.S. pipelines only applied to new pipelines, not those already under construction. This “clarification” meant that the Keystone pipeline was completely exempted from the executive order.

In March 2017, Jared, Ivanka, and their family took a ski vacation to Aspen, Colorado. There were some grumbling emanating from the White House to the effect that Kushner, as one of Trump’s senior advisors, should not have been off skiing in Aspen while Trump’s health care  agenda was going up in flames in Congress.

As it turned out, however, Kushner’s trip to Aspen was not completely a vacation. Roman Abramovich and his wife just happen to own a chalet in Aspen, and the two couples just happened to arrive in Aspen on the same day (March 18th). Although there were no photographs of the two families together in Aspen, it is reasonable to assume that – given the closeness of the relationship between the two families – Jared and Roman found some quality time together to close the Keystone pipeline steel deal and cover other business matters of mutual interest.

Thus Kushner, like his father-in-law, has a longstanding history and close affinity for Russian oligarchs who operate within Putin’s inner circle. At the same time, Kushner has had a longstanding suspicion (if not outright hostility) to federal law enforcement agencies and the media who, in his view, hounded his father out of the family business and into prison. It must have seemed perfectly natural, therefore, for Kushner to want to communicate directly with the Russians, out of sight from the media and unfettered by federal law enforcement/intelligence agency “interference.”

 

U. S WITHDRAWAL FROM THE PARIS CLIMATE ACCORD WOULD NOT ONLY BE BAD NEWS FOR THE PLANET, BUT IT WILL HARM THE AMERICAN ECONOMY AND ITS STANDING AS LEADER OF THE FREE WORLD

If Russia’s goal in meddling with our 2016 election in order to support the election of Donald J. Trump as President was to isolate the U.S. from the rest of the international community of nations and to weaken the NATO alliance standing in the way of Russia’s ambitions to recover parts of eastern Europe that it had “lost” after the collapse of the Soviet Union, then it has succeeded beyond its wildest imagination.

Every one of the U.S’s allies and trading partners has signed onto the Paris Climate Agreement, which has the goal of reducing global greenhouse gas emissions and slow the alarming rise in global temperatures. There are now 194 countries that have joined the Agreement, with only two holdouts (Syria and Nicaragua).

If the Trump Administration decides to withdraw from the Agreement, it will not only be jeopardizing this historic effort to address the serious perils of climate change, but it will mark the death knell of America’s position for the past 70 years as the leader of the free world. Since the end of World War II, the U.S. has – with limited exceptions – provided the leadership as well as the economic and military might to ensure that global and regional alliances promoting peace and stability can work effectively. In 1945, the international conference establishing the United Nations was sponsored by the U.S. in San Francisco, and it has been headquartered in New York City since then. The World Bank and the IMF are headquartered in Washington, D.C., and have helped contribute to global economic and financial stability for decades. In Western Europe, U.S. leadership of the NATO alliance has kept the peace in Europe and deterred the Soviet Union and its Communist allies from engulfing our democratic allies in Western Europe.

When President George W. Bush pulled the U.S. out of the Kyoto Protocol — an international treaty acknowledging that global warming exists and that that human-made CO2 emissions have caused it — the U.S.’s standing in the world was severely damaged and took years to repair. Former Secretary of State Colin Powell has recently acknowledged that the international and diplomatic “blowback” from this last attempt by a Republican administration to undermine international efforts to combat climate change was far greater than anticipated.

A similar blunder by the Trump Administration with regard to the Paris Accord would be likely to have even more severe consequences, given the fact that our allies are already questioning the U.S.’s willingness and ability to lead the Western democratic alliance. The Trump White House has already caused consternation among our NATO allies by raising doubts as to whether the U.S. can continue to be relied upon to come to the defense of another NATO country that is attacked, and his suggestion that Climate Change is a hoax perpetrated by the Chinese has made us the laughingstock of the rest of the world. President Trump also could not resist picking a fight with Chancellor Angela Merkel of Germany over trade and other issues during his recent overseas trip, and his ham-handed attempt to elbow another leader out of the way during a photo-op did little to repair the damage that he has already caused to our standing among our European allies. Chancellor Merkel has already started publicly talking about the necessity for Europe to forge its own destiny without the U.S., and this kind of thinking will only accelerate if the U.S. pulls out of the Paris Accord.

Christmas 2016

On this Christmas Day, thoughts of peace, hope and love naturally come to mind. But it would be wrong to idealize what occurred in the small town of Bethlehem over two thousand years ago through the gauzy mist of history. Yes, if you are Christian, a truly miraculous event occurred on that day. The Son of God was immaculately conceived and born to a young Jewish woman. Even our Muslim brethren believe – according to the Quoran — that Jesus was a truly great Jewish prophet who was immaculately conceived when God breathed life into the Virgin Mary’s womb. Of course, Muslims believe that this great prophet was later eclipsed by the Prophet Mohammad, but that’s another story for another day. After all, this is Christmas.
Over two thousand years later, it is important for us to remember that these dangerous and troubled times we live in are not dissimilar to the world into which Jesus was born. Oppressive local despots dominated much of the Roman Empire, ruling with an iron grip with the consent of the Roman Emperor Augustus, so long as they dutifully paid taxes and tribute to Rome. In Judea, Herod the Great was appointed as King of the Jews by Rome. A census was underway, which is why Joseph and Mary were traveling back to Joseph’s birthplace in Bethlehem so that they could be properly recorded in the census.
Their circumstances were exceedingly precarious. Joseph and Mary were engaged, but not married, and yet Mary was almost nine months pregnant with child. Imagine what Joseph and Mary must have thought, since they knew full well that they had never had carnal relations, and yet here she was pregnant! Very upsetting, to be sure. And this meant that the couple was about to have a child out of wedlock, which no doubt drew criticism from devout Jews all along the arduous route that they were travelling. Long distance travel was hard enough at the time in the best of circumstances, but travelling while pregnant must have made the ordeal almost intolerable. On top of all this, when they finally made it to Bethlehem, no doubt exhausted from trip, they couldn’t even get a room at the inn. The Inn was either fully occupied with other travelers, or the innkeeper didn’t feel it was appropriate to give a room to an unmarried couple, with the woman obviously pregnant.
Sleeping in a manger may sound romantic from a distance, but did you ever try sleeping in a barn filled with farm animals mucking about? Believe me, it is no picnic. Of course, a visit from the Magi and a few shepherds who followed a shining star to Bethlehem provided a welcome break, but giving birth in a barn without the benefit of an anesthetic or even a mid-wife to assist must have been close to torture for Mary. It’s a miracle that the mother and boy both survived the ordeal relatively intact.
But this was just the beginning of their troubles. According to the Gospel of Matthew, Herod ordered the execution of all young male children in the vicinity of Bethlehem, so as to avoid the loss of his throne to a newborn King of the Jews whose birth had been announced to him by the three Wise Men, also known as the Magi.
Herod himself, according to Matthew, had directed the Magi to Bethlehem, and instructed them to report back to him if in fact they found the king they were looking for. However, after they found Jesus and honored him, they were warned by an angel not to alert Herod, and they returned home by another route. When the Magi had gone, another angel appeared to Joseph in a dream, directing him to get up and take the child and his mother to Egypt, which he did.
When Herod realized that he had been outwitted by the Magi, he was furious, and he gave orders to kill all the boys in Bethlehem and its vicinity who were two years old or under, in accordance with the time frame he had learned from the Magi. This has come to be known as the Slaughter of the Innocents. Jesus and his family escaped only because they were in Egypt, where they remained until Herod’s death. And when they returned to Judea, the peaceful and tranquil life of a carpenter didn’t last very long for Jesus. He started preaching the gospel of love and peace, and performed a few miracles, but his temper sometimes got the better of him, like when he threw the money changers out of the Temple. And then the inevitable happened. He was too much a threat to the Jewish and Roman authorities that he had to be silenced, in brutal fashion. Crucifixions have apparently gone out of fashion as a strategy for both punishment and torture, but President-elect Trump has promised that waterboarding “and worse” will continue under his watch, and the Guantanamo Bay facility will continue to be very much open for business, despite the dearth of actionable intelligence that our “enhanced stress” techniques have been produced. But that is not really the point, is it? For thousands of years, torture has primarily been used to humiliate and degrade other human beings to the point where they can be viewed as sub-human. It degrades both the torture victim and the torturer, and yet our so-called “civilization” has not progressed to the point where torture, beheadings and mass killings are a thing of the past. They are very much with us still in the present, and at the rate we are going, we can expect them to be with us for the foreseeable future.
As the French proverb goes, “The more things change, the more they remain the same.” Just last week, the world watched in horror and frustrated impotence as hundreds if not thousands of innocents were killed in the siege of East Aleppo in Syria. The Assad Regime, Iran and Russia seemed to have formed a winning coalition, and in an uncertain world, one certainty is that the Syrian conflict will be continue to be as ugly and brutish in 2017 as it has been in 2016. Russia will continue its efforts to rebuild its Empire by absorbing parts of Ukraine and perhaps other neighboring states, and it is doubtful that, with Western Europe in disarray and a President Trump in the White House, any of the traditional “liberal democracies” will have the inclination or political will to stop the steady spread of authoritarianism throughout the world.
The prospects for the coming year are beak, but not totally hopeless. America has seen dark days before and survived – indeed, thrived – through periods of turmoil and depression. We survived a Civil War, a Great Depression, two World Wars, and even a Great Recession, so there is no reason to believe that continuing a permanent war footing against terrorism and a Trump Presidency will do us in. After all, short of a nuclear Armageddon, there is really nothing that a President Trump can do to permanently damage and dismantle our democratic institutions. Unlike his idol, Vladimir Putin, an American President has vast powers, but not total power. We still have a system of checks and balances, and if his real intention, as signaled by his Cabinet appointments, is to dismantle or neuter the EPA, Department of Energy, the Interior and Labor Departments, and other agencies that have served the country well for decades, then he will have a serious fight on his hands, and the Democrats in Congress and even some sensible Republicans have vowed to fight to the death to preserve these essential elements of our modern democracy and social system.
But nothing is pre-ordained. Nothing is for certain, and nothing can be taken for granted. We may wish to think that America is so special that its continued existence is part of some Great Cosmic Plan, but the reality is that history teaches us that empires rise and empires fall, and none to date have lasted forever. We have collectively assumed that America is an exception to this inexorable rule, and only time will tell whether American Exceptionalism is a reality or just a myth. The truth is that America has survived and thrived for over 200 years because each generation of Americans has faced and overcome the challenges that faced this great nation. Preserving our democratic ideals and institutions is hard work, and just when we thought that we were making progress in eradicating the last vestiges of racism, bigotry and prejudice in this country, we have been shocked out of our complacency by a Presidential campaign that seemed to be driven by divisiveness and the worst impulses of our human nature. With the raw divisions exposed in our country, we are poised to move forward or backwards, but will never be the same again. America has gone backwards before, and it could do it again. It is entirely up to us. The Civil War was followed by Reconstruction, where the freed slaves in the South were given civil and voting rights, albeit under the watchful eye of occupying federal forces. When the federal troops were withdrawn in 1877, as part of the Great Compromise that propelled Rutherford B. Hayes into the White House, the Jim Crow laws largely stripped African-Americans of their civil and voting rights, reducing many of them back to virtual peonage and snatching the American Dream from their grasp.
Someone once said that each generations of Americans have gotten the President that was needed, or the one that they deserved. Perhaps a President Trump is what America deserves. It is a country as deeply divided as at any time in our country’s history since the Civil War. There are Blue States on both coasts, and mostly Red States in between, with virtually no one willing or able to talk to or listen to the other side. There is much shouting, posturing and bombast abroad in the land, but not much thoughtful reflection on what path we should take to restore and reinvigorate our democratic institutions and to heal the wounds that so deeply divide us.
Only eight short years ago, America and the world were filled with hope that President Obama would be able to unite Americans and bridge the deep gorges that seemed to divide us. Remember the talk about there not being Red States or Blue States, only the United States? It seems so long ago. The Great Recession was in full swing, with the economy and financial system in a virtual free-fall. A massive stimulus program had to be quickly put in place that gave the American people an ownership share, at least on a temporary basis, of huge chunks of the auto industry and the financial sector. The economy and financial structure survived, and have actually thrived since those dark days. The economy has been expanding at a steady pace, and unemployment is down nationwide. Nevertheless, the pace of economic recovery has varied greatly throughout the country, with the East and West Coasts generally surging and leading the recovery, while the rural and traditional manufacturing centers of the Midwest and South lagging far behind. These Forgotten Americans – largely white and generally not very well educated or skilled – who voted overwhelmingly for Trump. They can be forgotten no more. Whether Trump genuinely was concerned about the plight of these Forgotten Americans or not, only time will tell. All indications seem to be that they will be forgotten once again as the Trump Administration is rapidly filling up with billionaires and plutocrats who don’t care one whit about the average unemployed or underemployed white men and women who turned out in droves for the Trump rallies throughout Middle America and still proudly wear their Make America Great Again hats and tee-shirts. Boy, are they in for a rude shock when Trump and the Republican Establishment repeals the Affordable Care Act, privatizes Social Security and Medicare, and wages war on ordinary working people through their own Labor Department.
Only time will tell. In the meanwhile, let’s do more than just hope for the best. We must redouble our efforts in the coming year to do everything in our power to preserve and protect our democratic principles and institutions, which are proving to be far more fragile than anticipated. When asked what kind of government we have, Benjamin Franklin, emerging from the Continental Congress, said: “A Democracy, if you can keep it.”
American Exceptionalism is over. We are but one of several Western liberal democracies that are under severe stress and susceptible to the siren call of national populist leaders that promise a return to the good old days that either never were or will never be again. Trump’s call to fearful Americans that a ban on Muslim immigration or the building of a Wall will save them from the ravages of a rapidly changing future is as seductive as it is hollow. But we will survive Trump as we have survived numerous other trials over time. The Democratic Resistance Movement is alive and well, and the Democratic Party will finally be forced to renew the faith of the Forgotten Americans who once were an essential part of their coalition. Then America will truly be Greater, not Again, but Greater than it ever was.
Dated: December 25, 2016
Charleston, South Carolina

THE ELECTORAL COLLEGE MUST NOW DO ITS JOB OF PREVENTING A PRESIDENT FROM TAKING OFFICE BASED UPON FOREIGN MEDDLING WITH THE ELECTION

On March 12, 1799, Alexander Hamilton published Federalist Paper No. 68, which explained that the Electoral College was designed to prevent the catastrophe that this Country now faces, namely, the ascendency to the Presidency of a person who is unqualified to hold that high office. With the announcement of the CIA Report the election of Donald Trump may also well be the product of foreign interference and meddling in the electoral system, exactly what our founder tried to avoid by establishing the Electoral College.
Hamilton wrote in Federalist 68 that the electoral college was specifically designed to prevent the election of a President who was the product of a “cabal, intrigue, and corruption,” and to thwart any attempt by “deadly adversaries of republican government … [and] foreign powers to gain an improper ascendant in our councils.”
Hamilton envisioned that an existential crisis might emerge for the new Republic where a foreign power could take control of the United States by “raising a creature of their own to the chief magistracy of the Union …[by] tamper[ing] with [the election process] beforehand to [cause voters to] prostitute their votes…” for the sole purpose of electing a President secretly chosen by that foreign power.
In such a dark and dangerous situation, where a foreign power has rigged the election, the Electors would then save the day and the Republic. They would do this by exercising their independent judgment and common sense to prevent the election to the Presidency of a person selected primarily by that foreign power, and not by the will of the People of the United States:
Thus without corrupting the body of the people, the immediate agents in the election [i.e. the Electors] will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it, [i.e., the selection of a qualified candidate for the Presidency who is not the product of foreign meddling].
Hamilton emphasized the importance of the task delegated to the Electors by the various states and by the entire Union since they are to be “a special body of representatives, deputed by the society for the single purpose of making the important choice.” Hamilton described the mission of the Electors to be one of “moral certainty, [in order to guarantee] that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications and who does not merely possess “talents for low intrigue, and the little arts of popularity.]”
Two hundred and twenty-eight years later after Federalist 68 was written, the Electoral College will have the solemn and awesome responsibility of deciding whether Donald Trump, an unqualified candidate for the Presidency be elected. Donald Trump who is poised to ascend to this high office based on not only his “talents for low intrigue” but, more significantly, as a result of outright cyber warfare. There is no longer any doubt that there was illegal hacking of critical databases and a concerted campaign of disinformation by the intelligence services of the Russian Government. This effort was led by Russian’s autocratic leader, Vladimir Putin. His intention was to not only disrupt the 2016 Presidential election and to undermine confidence in the American electoral process, but to specifically elect a man who has demonstrated time and time again that he is prepared to compromise vital U.S. interests both at home and around the globe. These interest include supporting Russian interest in Crimea, Eastern Ukraine and the Baltic Republics who are members of NATO. Trump is only interested in one thing, serving the long-term tactical and strategic interests of Russia and President Putin.
If the Electoral College does not do its job and prevent Donald J. Trump from taking office, America will be faced with a crisis of unprecedented proportions. Vladimir Putin will have achieved an espionage coup beyond even his wildest dreams: a Manchurian Candidate in the White House!

Florida’s St. Lucie Estuary Environmental Disaster and the Clean Water Act

A toxic algae bloom in the St. Lucie River and Caloosahatchee River estuaries in Florida has caused an unfolding environmental disaster of enormous proportions. The algae outbreaks are triggered by fertilizer sewage and manure pollution that the State has failed to properly regulate. “It’s like adding miracle grow to the water and it triggers massive algae outbreaks,” Earthjustice spokeswoman Alisa Coe told CNN. The Miami Herald describes the devastated area as being engulfed in blue-green colored water that resembles “guacamole.” NPR reports that the smell of hundreds or thousands of dead animals and fish baking in the sun has created a stench that is unbearable.

A State of Emergency was declared over to July Fourth weekend, emptying the beaches and bringing fishing, boating and swimming to a halt, as the waters covered by green slime were declared too toxic to touch. The tourist industry in the Stuart and Port St. Lucie areas rapidly ground to a complete halt, thus decimating by far the largest industry in the area.  According to the Florida Department of Environmental Protection, toxic blooms can damage the gastrointestinal system, liver, nervous system and skin. The blue-green algae is called cyanobacteria. It can release toxins that affect the liver and nervous system. No wonder that the tourists and many residents have fled the area.

While Governor Rick Scott has insisted that the problem is primarily a water storage issue, and that the federal government had been negligent in failing to properly fix the aging dike system and to provide for sufficient water storage in Lake Okeechobee during the wet season, there can be little question that the source of the toxic algae bloom is the huge amounts of fertilizer-related nitrogen and phosphorous from the Big Sugar companies and other polluters that has ended up in the Lake and then been released into the St. Lucie and other estuaries.

Most of the public and press attention has focused on the Army Corp’s decision to release polluted lake water into the estuaries to the east and west, rather than permitting more of the natural flow of water southward from the Lake through the drainage basin and complex canal system that has been developed there. The area to the south of the Lake includes the Everglades Agricultural Area, comprising former wetlands that were converted into farm use and have become dominated by what has become known as “Big Sugar,” primarily the U.S. Sugar Corporation, Florida Crystals, and the Sugar Cooperative Corporations. The Army Corp, which maintains jurisdiction of the dike system and the regulation of water releases under the Rivers and Harbors Act of 1899 and the Clean Water Act, has responded by stating that these huge releases of polluted waters were necessary to prevent a breach in the old and outdated Herbert Hoover Dike system surrounding the southern shore of Lake Okeechobee.

Serious allegations have been made that the Army Corp. has failed in its mission to properly regulate and maintain the infrastructure that was designed to keep this complex and delicate ecosystem in balance. There have been many calls for reforms, including the February 2014 letter from the Florida Senate to Congress requesting that it transfer authority over water releases from the Lake from the Army Corps to the Florida Department of Environmental Protection (FDEP). Meanwhile, Governor Rick Scott, who was forced to recently declare a State of Emergency in the area due to the dangerous concentrations of toxic algae in the area, has sought to focus on the need to upgrade the septic systems of property owners and businesses in the area.

However, neither the Army Corp nor the homeowners and residents of the area are primarily responsible for the dangerous build up in the levels of nitrogen and phosphorous “nutrients” in the Lake Water. Rather the primary parties responsible for the agricultural “run-off” of these chemicals are the Big Sugar interests controlling thousands of acres of cane sugar south of the Lake in the Everglades Agricultural Area (EAA).   These huge sugar companies are the continuing beneficiaries of the 1981 Farm Bill, repeatedly renewed in Washington, which guarantees sugar prices for the corporations at levels that are sometimes twice the price of the world market.

Under the federal Clean Water Act, polluters such as the Big Sugar companies, are required to clean up waters polluted by fertilizers or pesticides that are part of the agricultural process before such waters are permitted to be released back into navigable water system. Nevertheless, the Big Sugar companies have failed to adequately clean up the huge quantities of water that they use as part of the cane sugar agricultural process, resulting in the release of significant quantities of pollutants back into the Lake and eventually, the St. Lucie River and other estuaries.

The Clean Water Act (“CWA”) was originally enacted in 1948 to address the growing water pollution problems throughout the United States, with its primary enforcement authority given to the states. See Federal Water Pollution Control Act, Pub. L. No. 80-845, current version at 33 U.S.C. §§ 1251-1387. Since that time, Congress has amended the CWA on several occasions, including an amendment in 1972 establishing a system of effluent limitations, water quality standards, discharge permits and other regulatory mechanisms “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

One important issue addressed by the U.S. Supreme Court in 2006 was whether wetlands were “navigable waters” covered by the CWA. In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court narrowed the EPA’s broad definition of “waters of the United States” to wetlands adjacent to traditional navigable waters, with Justice Kennedy establishing a test, known as the “significant nexus” test, requiring that for wetlands to be covered by the CWA, there must be “a significant nexus between the wetlands in question and navigable waters in the traditional sense.”

One of the best-known provisions of the CWA is Section 402, which regulates discharges of pollutants from “point sources”, and any entity wishing to discharge pollutants into a water of the United States must obtain a National Pollutant Discharge Elimination System (NPDES) permit from the EPA or from a state agency authorized to run the program. In Florida, the EPA authorized the FDEP to manage the NPDES permitting program within the state. In addition, Congress left control over “nonpoint” and “agricultural” source pollution to the states to manage as each seed fit, so long as minimum federal water quality standards were met. In Florida, the FDEP developed these water quality standards and implemented them with the aid of the five water management districts. In addition, the Army Corps actually transferred operational control of the Lake Okeechobee watershed system to the South Florida Water Management District (SFWMD), including operational control of the complex network of canals and pump stations that artificially divert agricultural, industrial and residential runoff away from the agricultural lands to the south of Lake Okeechobee, which is where the Big Sugar lands are located, into the Lake itself.

Thus, the fertilizer contaminants in the water runoff from the Big Sugar plantations to the south of the Lake are theoretically regulated by the FDEP and SFWMD under the provisions of the CWA requiring states to create and implement water quality-based standards, including standards for nonpoint source pollution from agricultural properties, and must determine the “total maximum daily load” (TMDL) for each pollutant and allocate the allowable daily amount among all of the water body’s polluters. However, since the FDEP and SFWMD claim that they have a lack of resources to properly enforce these standards themselves, they have largely relied upon Big Sugar and other agricultural polluters to “self-regulate” the degree to which they produce phosphorous and nitrogen laced polluted runoff, which is then pumped by the SFWMD into the Lake. In other words, Florida has basically put the wolves in charge of the henhouse leaving it up to the sugar companies themselves to decide whether or not they are in compliance with the state regulations regarding the release of potentially toxic pollutants into the Lake. Not surprisingly, the instances where Big Sugar has turned themselves into the regulators for failing to comply with these emission standards are rare or non-existent.

Adding further confusion and lack of public protection to this regulatory scheme, while the Florida state entities (FDEP and SFWMD) have responsibility for setting standards regarding pollution-levels from agricultural properties and the adjacent canals being dumped into the Lake, only the Army Corps has the responsibility for releasing polluted Lake waters into the St. Lucie and other estuaries. While the Army Corps and the state agencies are, in theory, supposed to coordinate together so that the pollution levels of the billions of gallons of water being released by the Army Corps are known, in practice, it appears that this coordination is far from perfect and that the Army Corps may have no precise idea how much in the way of harmful phosphorous and other pollutants are being released into the estuaries.

As part of the 1972 amendments to the CWA, private citizens were permitted for the first time, to bring a civil action in federal court against any person or government that violated the requirements of the CWA. FWPCA § 505(a)(1), 33 U.S.C. § 1365(a). However, in order for an individual or group to bring a CWA suit under the citizen suit provisions, 33 U.S.C. § 1365 (a), that individual, business or group must have “standing to sue,” which means that the individual business or group must have suffered an “injury in fact” that is actual or imminent, not just conjectural or hypothetical. Sierra Club v SCM Corp. 580 F. Supp. 862 (1984).  Damage to a plaintiff’s aesthetic or recreational interest is sufficient to confer standing, as long as the plaintiff can show that he or she “use[s] the affected area and [is a] person ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 183 (2000). In Laidlaw, the court found sufficient injury for standing in the testimony of the plaintiffs’ members that they had ceased use of the river because of their concern that the defendant’s discharges were polluting the river and causing a depreciation in the value of one of the members’ homes. Laidlaw, 120 S. Ct. at 703.  The loss of recreational and aesthetic benefits, or just the loss of enjoyment caused by the pollution, is sufficient to confer standing. See Mt. Graham Red Squirrel v. Espy, 986 F. 2d 1568 (9th Cir. 1992). Even the probability of future harm, even though none has occurred yet, is sufficient to confer standing. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F. 3d 149, 160 (4th Cir. 2000).

There must also be a causal connection between the injury and the conduct complained of, but a plaintiff need not demonstrate that his or her injuries are caused specifically by the actions of the defendants. SPRIG v. Tenneco Polymers, 602 F. Supp. 1394 (1984). The plaintiff need only how that the defendant caused an unlawful discharge of pollutants; that the pollutants were discharged into a waterway in which plaintiffs have in interest that are or may be adversely affected by the pollutant; and that this pollution caused or contributed to the kinds of injuries alleged by the plaintiffs. See Public Interest Research Group of New Jersey v. Yates Industries Inc., 757 F. Supp. 438, 443 (D. N.J. 1991).

The Clean Water Act requires that a citizen give notice of their claims to any person, including the United States, and/or any other governmental entity sixty (60) days before bringing suit against the alleged violator. See 33 U.S. C. § 1365(a)(1) and (b)(1). This is a mandatory provision and compliance must be pleaded in the complaint. National Environmental Foundation v. ABC Rail Corp., 926 F. 2d 1096 (11th Cir. 1991); Walls v. Waste Resource Corp., 761 F. 2d 311 (6th Cir. 1985). Notice of a violation must be served on the alleged violator or violators. 40 C.F.R. § 135.2(c).

If, after the date that the suit is filed, the defendant continues to violate the CWA, the plaintiff may request both injunctive relief and civil penalties under the Act. See Weiszmann v. District Engineer, U.S. Army Corps of Engineers, 526 F. 2d 1302, 1304 (5th Cir. 1976); U.S. v. Context-Marks Corp., 729 F. 2d 1294, 1297 (11th Cir. 1984). Injunctive relief may be granted under a common law standard to enjoin a continuing a abatable nuisance or trespass. A court may also award costs of litigation, including reasonable attorneys’ and expert witness fees to the prevailing party. 33 U.S. C. § 1365(d).

In addition to statutory claims under the CWA, plaintiffs also have state common law damages claims for nuisance (interference with use and enjoyment of property), trespass (unauthorized entry on another’s property), negligence (breach of a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm, and violations of Florida state statutory law.

It is unlikely that there would be a cause of action for damages to “riparian rights” since, in Midenberger v U.S., No. 2010-5084 (U.S. Ct. of Appeals, Federal Circuit June 30, 2011), in a case brought by plaintiffs in the St. Lucie River area, the court found that the plaintiffs had failed to make a showing that Florida law permitted a cause of action for damages to riparian rights by property owners that was different or separate from the rights of the general public.

In short, individuals, businesses and associations who have suffered damages as a result of the toxic pollution of the St. Lucie Estuary have both federal and state law causes of action against the Big Sugar polluters, the relevant Florida state agencies and the Army Corp for the damages that they have sustained as a result of this major environmental disaster.

The Alien Tort Statute and International Human Rights

The Alien Tort Statute (28 U.S.C. § 1350), also called the Alien Tort Claims Act (ATCA), was one of the first statutes enacted by the U.S. Congress as part of the Judiciary Act of 1789. It opened the doors of the U.S. courts to all foreign citizens (i.e. “aliens”) with regard to any civil wrongs (i.e. torts) committed in violation of customary international law. The language of the statute is both short and simple: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

Immediately after its passage, the Alien Tort Statute (“ATS”) fell into virtual obscurity. There were only two reported court cases in the almost 200 years between 1789 and 1980.

Since 1980, however, there have been a virtual avalanche of ATS cases brought in federal courts on behalf of foreign nationals, and the courts have generally interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States. Lawyers associated with The Center for Constitutional Rights started the ball rolling in Filartiga v. Pena-Irala, a case brought on behalf of two Paraguayan citizens resident in the U.S against a Paraguayan former police chief who was also living in the United States. The plaintiffs alleged that the defendant had tortured and murdered a member of their family, and they asserted that U.S. federal courts had jurisdiction over their suit under the ATS.

At first, the case hit a stone wall in the district court, which dismissed the complaint for lack of subject-matter jurisdiction, holding that the “law of nations” does not regulate a state’s treatment of its own citizens. However, the  U.S. Court of Appeals for the Second Circuit reversed the decision of the district court. Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980). First, it held that the ATS was a constitutional exercise of Congress’s power, because “the law of nations…has always been part of the federal common law“, and thus the statute fell within the federal-question jurisdiction of the U.S. courts. Second, the court held that the contemporary law of nations had expanded to prohibit state-sanctioned torture, and that various United Nations declarations, such as the Universal Declaration on Human Rights, also prohibited official torture. The court therefore held that the right to be free from torture had become a principle of customary international law.

Following the Second Circuit’s decision in Filartiga, several cases brought in the U.S. courts against individuals and major corporations under the ATS proved to be successful. For example, in one 2007 case, Wang Xiaoning v. Yahoo!, the World Organization for Human Rights USA filed a lawsuit in the U.S. District Court for the Northern District of California against Yahoo! on behalf of Chinese dissidents Wang Xiaoning and Shi Tao (Guao Quingsheng), claiming jurisdiction under the ATS. No. C07-02151 (N.D. Cal. Nov. 13, 2007). According to the complaint, Wang and Shi Tao used Yahoo! accounts to share pro-democracy material, and a Chinese subsidiary of Yahoo! gave the Chinese government identifying information that allowed authorities to identify and arrest them. The Complaint alleges that the plaintiffs were subjected to “torture, cruel, inhuman, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor.” Yahoo! settled the case in November 2007 for an undisclosed amount of money, and it agreed to cover the plaintiff’s legal costs as a part of the settlement. In a statement released after the settlement was made public, Yahoo! said that it would “provide ‘financial, humanitarian and legal support to these families’ and create a separate ‘humanitarian relief fund’ for other dissidents and their families.” See Joint Stipulation of Dismissal, Xiaoning v. Yahoo!, Inc., No. C07-02151 (N.D. Cal. Nov. 13, 2007).

The first U.S. Supreme Court case directly addressing the ATS is the 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The plaintiff in Sosa (Alvarez) brought a claim under the ATS for arbitrary arrest and detention. Alvarez had been indicted in the U.S. for torturing and murdering a Drug Enforcement Administration officer. When the U.S. was unable to secure Alvarez’s extradition, it paid Sosa, a Mexican national, to kidnap Alvarez and bring him into the U.S. Alvarez claimed that his “arrest” by Sosa was arbitrary because the warrant for his arrest only authorized his arrest within the U.S. The U.S. Court of Appeals for the Ninth Circuit held that Alvarez’s abduction constituted arbitrary arrest in violation of international law. However, the Supreme Court reversed, holding that the ATS did not create a cause of action, but instead merely “furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” Sosa v. Alvarez-Machain, 542 U.S. at 720. According to the Sosa decision, such actions must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” Although the Court noted that scope of the ATS is not limited to violations of international law recognized in the 18th century, with respect to recognizing contemporary international norms, the court’s opinion stated that “the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping.” The Court further noted that under the ATS, any cause of action for violations of international norms must be as “specific, universal, and obligatory” as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy in the 18th century. Finally, the Supreme Court, in Sosa, found that the following categories to be actionable under the ATS: torture; cruel, inhuman, or degrading treatment; genocidewar crimescrimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance.

Specifically addressing Alvarez’s claims, the Supreme Court in Sosa concluded that “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 738.  Although not explicitly stated, the Supreme Court’s narrow interpretation of the ATS may have been influenced by a growing uneasiness that the U.S. courts really had no business resolving disputes solely involving foreigners, and that the U.S. taxpayers should not be required to foot the bill for costly court litigation relating to conduct that occurred outside the U.S.

The U.S. courts have almost always recognized that the ATS is an effective vehicle for foreign nationals who have been subjected to torture or other international law violations to pursue their claims, as long as the human rights abuses rise to the level where they may be considered to be in violation of international law. For example, in Kpadeh v. Emmanuel, Charles McArthur Emmanuel (also known as “Chuckie Taylor” or “Taylor Jr.”), the son of Charles Taylor, former President of Liberia, was the commander of the infamously violent Anti-Terrorist Unit (ATU), commonly known in Liberia as the “Demon Forces”. In 2006, U.S. officials arrested Taylor Jr. upon entering the U.S. (via the Miami International Airport) and the Department of Justice later charged him based on torture he committed in Liberia. He was convicted of multiple counts of torture and conspiracy to torture, and was sentenced to 97 years in prison.

The World Organization for Human Rights USA and the Florida International University College of Law then filed a civil suit in the Southern District of Florida on behalf of five of Taylor Jr.’s victims pursuant to the Alien Tort Statute and the Torture Victim Protection Act. See Rufus Kpadeh et al. v. Charles McArthur Emmanuel, No. 09-20050-civ (S.D. Fla. Feb. 5, 2010). The plaintiffs won by default judgment as to liability on all counts, and in February 2010, following trial on damages at which Taylor appeared, the court found Taylor liable to the plaintiffs for damages of over $22 million.  261 F.R.D. 687 (S.D. Fla. 2009).

While the U.S. courts have always recognized the jurisdiction under the ATS against individuals who commit human rights abuses, the liability of corporations under the ATS has been an entirely different matter. Until October 2011, there was a split in the federal circuit courts regarding whether corporations, as opposed to natural people, could be held liable under the ATS. In 2010 the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum Co. that “customary international law has steadfastly rejected the notion of corporate liability for international crimes” and thus that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS”. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010).

The plaintiffs in Kiobel were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law. The plaintiffs claimed that Royal Dutch Shell compelled its Nigerian subsidiary, in cooperation with the Nigerian government, to brutally crush peaceful resistance to aggressive oil development in the Ogoni Niger River Delta. Plaintiffs sought damages under the ATS. The defendants moved to dismiss on two grounds. First, they argued that customary international law itself – not the ATS — provides the rules by which to decide whether conduct violates the law of nations where non-state actors are alleged to have committed the wrong in question. Second, they contended that no norm has ever existed between nations that imposes liability upon corporate actors, as opposed to individuals. Thus, the Second Circuit dismissed the case against Royal Dutch Shell, not because there was not ample evidence indicating that it had been deeply involved in the Nigerian governments efforts to suppress any popular opposition to Shell’s oil exploitation, but because it reached the startling conclusion that there apparently are no international codes of conduct or ethics for corporations.  It has often been said that it is difficult to hold multi-national corporations liable under international law because they neither have a body to be jailed nor a soul to be damned. Yet even I was surprised that a U.S. court would basically grant corporations immunity from liability under the ATS, which is basically what the Second Circuit did in Kiobel.

However, in 2011, the Seventh Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals declined to follow the Second Circuit’s reasoning in Kiobel, all of them ruling that corporate liability was possible under the statute. On April 17, 2013, in Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court issued a decision affirming the Second Circuit Court of Appeals but on different grounds, holding that the ATS did not create jurisdiction for a claim regarding conduct occurring outside the territory of the United States, leaving the question of corporate liability unresolved. 569 U.S. ___(2013).

With its Kiobel decision, the Justice Robert’s Supreme Court thus left its unenviable mark as the most pro-corporate Supreme Court in history, severely restricting the ability of human rights victims to seek redress in U.S. courts against corporations from their commission and complicity in human rights abuses abroad. The plain language of the Alien Tort Statute itself and extensive jurisprudence starting with the trials of Nazi war criminals at Nuremburg had established that fundamental human rights violators may be prosecuted in the courts of all civilized countries, including the United States. With its decision in Kiobel, rogue corporations and executives were given some hope that they could seek “safe haven” for their participation in such human rights abuses, just as Nazi war criminals sought safe haven in Paraguay or Brazil at the end of World War II. The United States was never meant to harbor the enemies of mankind; on the contrary, it was – and hopefully will continue to be – a beacon of home for the downtrodden and oppressed who have been victims of violations of their fundamental human rights.

The Supreme Court again addressed the question of whether there is corporate liability under the ATS in Sarei v. Rio Tinto, a case brought by residents of the island of Bougainville in Papua New Guinea brought suit against multinational mining company Rio Tinto. The lawsuit, which was based on a 1988 revolt against Rio Tinto, alleged that the Papua New Guinea government, using Rio Tinto helicopters and vehicles, killed about 15,000 people in an effort to put down the revolt. On October 25, 2011, the Ninth Circuit Court of Appeals, sitting en banc, issued a divided opinion holding that certain claims against a foreign corporation implicating the conduct of a foreign government on foreign soil could proceed under the ATS. The company filed a petition for a writ of certiorari in the Supreme Court for review of the decision.  On April 22, 2013, the Supreme Court sent the case back to the Ninth Circuit for further consideration in the light of its decision in the Kiobel case, and on July 9, 2013, the U.S. Court of Appeals for the Ninth Circuit dismissed the case, based upon the Kiobel decision.

The U.S. courts have also generally required a fairly high standard of proof for ATS violations. For example, several courts have found that it is not enough for a defendant to just have knowledge of the human rights abuses to be liable under the ATS; a defendant must actively participate or aid and abet such abuses to be held liable, For example, on October 2, 2009, the Court of Appeals for the Second Circuit, in Presbyterian Church of Sudan v. Talisman Energy, Inc., held that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” 582 F.3d 244 (2nd Cir.2009). In this case, which involves allegations against a Canadian oil company concerning its purported assistance to the government in Sudan in the forced movement of civilians residing near oil facilities, the court concluded that “plaintiffs have not established Talisman’s purposeful complicity in human rights abuses.” In reaching that conclusion, the Second Circuit stated that “the standard for imposing accessorial liability under the Alien Tort Statute must be drawn from international law; and that under international law a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses.”

For an ATS case to be successful, therefore, an ATS complaint must set forth specific allegations of a defendant’s participation in the alleged human rights abuses; vague general allegations are insufficient. For example, on August 11, 2009, the Court of Appeals for the Eleventh Circuit issued a decision in Sinaltrainal v. Coca-Cola Company. In this case, plaintiffs alleged that Coca-Cola bottlers in Colombia collaborated with Colombian paramilitary forces in “the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists.” Sinaltrainal union members in Colombia launched the website “killercoke.org” which called for the boycott of Coke.

However, the district court dismissed the Sinaltrainal complaint and the Eleventh Circuit upheld that ruling.  In doing so, the Eleventh Circuit relied upon the Supreme Court’s recent Ashcroft v. Iqbal decision, 556 U.S. 662 (2009), in addressing the adequacy of the complaint, which has must have “facial plausibility” to survive dismissal, and noted that Rule 8 of the Federal Rules of Civil Procedure demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” The Eleventh Circuit then applied the Iqbal standard to plaintiffs’ allegations against Coca-Cola and held that they were insufficient to survive dismissal.

Another major ATS case is Doe v. Unocal, which was filed in September 1996 by four Burmese villagers against Unocal and its parent company, the Union Oil Company of California. In October 1996, another fourteen villagers also brought suit. The suits alleged various human rights violations, including forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline project in Myanmar, formerly Burma. In 2000, the district court dismissed the case on the grounds that Unocal could not be held liable unless Unocal wanted the military to commit abuses, and that plaintiffs had not made this showing. Plaintiffs appealed and ultimately, shortly prior to when the case was to be argued before the Ninth Circuit en banc court.  Doe vUnocal, 395 F.3d 932 (9th Cir. 2002), opinion vacated and rehearing en banc granted, 395 F.3d 978 (9th Cir. 2003). In December 2004, the parties announced that they had reached a tentative settlement. Once the settlement was finalized in March 2005, the appeal was withdrawn and the district court opinion from 2000 was also vacated. According to a joint statement released by the parties, while the specific terms were confidential, “the settlement will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region. These initiatives will provide substantial assistance to people who may have suffered hardships in the region.”

Thus, the Alien Tort Statute, while severely bruised, remains alive and well as to human rights abuses occurring internationally as long as there is some direct connection to the U.S., and where there is strong evidence that the conduct complained of violates customary international law norms. Corporations operating in the U.S. still must think twice before they ignore human rights standards in their insatiable quest to improve their bottom line.

The Supreme Court Further Undercuts the Fourth Amendment

On Monday, June 20, 2016, the U.S. Supreme Court further vitiated the Fourth Amendment’s prohibition against unlawful searches and seizures. In Utah v. Strieff (No. 14-1373), Justice Clarence Thomas wrote the majority opinion, joined by Chief Justice Roberts, and Justices Kennedy, Breyer and Alito. Justices Sotomayor, Ginsburg and Kagan dissented.

In this case, narcotics detective Douglas Fackrell was conducting a surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week led him to suspect that the occupants were dealing drugs. When he observed defendant Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

The Supreme Court reversed, holding that the evidence Officer Fackrell seized incident to Strieff’s arrest was not subject to the “exclusionary rule,” which requires that evidence unlawfully seized be excluded from evidence. In his majority opinion, Justice Thomas found that the evidence found on Strieff’s person was admissible based on an application of the “attenuation factors” originally articulated by the Court in Brown v. Illinois, 422 U. S. 590. This attenuation doctrine provides for admissibility when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance. See Hudson v. Michigan, 547 U. S. 586, 593. The basic argument applied by Justice Thomas in his majority opinion was that although the initial investigatory stop of Strieff was admittedly unlawful, since it was assumed that the officer did not have sufficient “reasonable suspicion” that Strieff was engaged in an illegal activity, the causal connection between the unlawful search and the seizure of evidence from his person was “attenuated” by the fact that Officer Fackrell’s discovered there was a valid, pre-existing arrest warrant for him.

As Justice Sotomayor pointed out in a blistering dissent, the majority decision basically means that any tainted evidence unlawfully seized after an illegal investigatory stop of a person may be used as evidence to convict that person of a crime as long as the officer later learns that there is an outstanding traffic ticket or moving violation outstanding against that person. Thus, this decision almost completely undercuts the exclusionary rule, which is the primary judicial remedy for deterring Fourth Amendment violations, and encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U. S. 796, 804.

Sotomayor’s remarkably strong dissent criticized the majority opinion as excusing clear-cut violation of the Fourth Amendment right to be free of unlawful searches and seizures, while saying “that your body is subject to invasion” even though your rights have been violated. Her dissent cited to the Department of Justice’s recent report on police misconduct in Ferguson, Missouri, as well as to various books that and books like Michelle Alexander’s “The New Jim Crow,” Ta-Nehisi Coates’ “Between the World and Me” and James Baldwin’s 1963 classic “The Fire Next Time.”

Sotomayor noted that, although Strieff is white, the majority opinion could be used by police officer to justify racial profiling: “The white defendant in this case shows that anyone’s dignity can be violated in this manner … But it is no secret that people of color are disproportionate victims of this type of scrutiny … For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

This decision is the latest in a long line of decisions that have been chipping away at the Fourth Amendment and the Exclusionary Rule’s deterrence against police misconduct and arbitrary stops without any reasonable suspicion. This is but another reason why the selection of the ninth Supreme Court justice to fill the vacant seat on the Supreme Court is so critical to important issues raised by this case and so many others.

 

Namibia: Germany’s Forgotten Genocide

Although it took Germany many decades, the German government finally accepted responsibility for the Holocaust, the German’s systematic attempt to annihilate the Jewish population of Europe. More recently, the German Parliament has passed a resolution condemning the forced relocation of the Armenian population by the Ottoman Empire in 1915 as a genocide. Turkey promptly withdrew its ambassador from Berlin, which Germany took as a confirmation of its moral rectitude and sensitivity to human rights

However, before Germany gets carried away with its self-congratulatory righteousness, it must first come to terms with its first genocidal campaign, which took place in Africa many decades before the Jewish Holocaust. During the period from 1904 through 1908, Imperial German forces annihilated over 100,000 members of the Ovaherero and Namaqua tribes in what was then called Southwest Africa (now Namibia). This is now generally recognized as the first genocide of the Twentieth Century, and yet no mention of this dark period in German history can be found in German school textbooks, and few German students are even taught that Germany was one of the great colonial powers occupying substantial portions of sub-Sahara Africa.

Imperial Germany first established its colony in Southwest Africa in 1883, and then signed a treaty with the Chief of the Herero tribe, Kamaharero, on October 21, 1885. Interestingly, the treaty was signed on behalf of Imperial Germany by Heinrich Ernst Goring, the Colonial Governor and father of Nazi Luftwaffe commander Hermann Goring. No sooner than the ink was dry on the treaty documents than the Germany began repeated violations of its terms, including the rape of Herero women and girls by Germans, a crime that the German authorities largely ignored. Under German colonial rule, natives also were routinely used as slave laborers, and their lands and cattle were frequently confiscated and given to German colonists. By 1903, over a quarter of Herero lands (originally approximately 50,000 square miles) had been seized by German colonists. In addition, the confiscation of Herero and Nama lands was expedited following the completion of the Otavi Railway Line running from the South West African coast to the inland German settlements.

In early 1904, having learned of a German plan to further divide up their territory and to establish “reservations” or “concentration camps,” the Herero finally revolted, and armed primarily with spears, killed between 123 and 150 Germans. Led by Chief Samuel Maharero, the Herero surrounded the town of Okahandja and cut links toWindhoek, the colonial capital. Colonial Governor Leutwein, who reported to the Colonial Department of the Prussian Foreign Office, called for urgent assistance, and on June 11, 1904, Lieutenant General Lothar von Trotha, who had been appointed as Supreme Commander of South-West Africa, arrived with an expeditionary force of 14,000 troops. Trotha, who had earned a reputation as an effective and ruthless officer after effectively crushing a similar revolt against German colonial rule in East Africa, made clear his intentions to crush the resistance and to annihilate the Herero and Nama peoples. Prior to the Battle of Waterberg on August 11-12, 1904, where his troops defeated 3000-5000 Herero combatants, General Trotha issued the following proclamation:
I believe that the [Herero] nation as such should be annihilated, or, if this was not possible by tactical measures, have to be expelled from the country…This will be possible if the water-holes from Grootfontein to Gobabis are occupied. The constant movement of our troops will enable us to find the small groups of nation who have moved backwards and destroy them gradually.
After the battle, the pursuing German forces pushed the surviving Herero further into the desert. As the exhausted and dehydrated Herero fell to the ground, German soldiers acting on orders killed men, women, and children mercilessly, even though almost all of them were unarmed and unable to offer any resistance. They were just trying to get away with their cattle. Those who managed to make it into the desert were prevented by German troops from returning.

On October 2, 1904, Trotha issued the following warning:
The Herero nation must now leave the country. If it refuses, I shall compel it to do so with the ‘long tube’ [cannon]. Any Herero found inside the German frontier, with or without a gun or cattle, will be executed. I shall spare neither women nor children. I shall give the order to drive them away and fire on them. Such are my words to the Herero people.
Trotha gave orders that captured Herero males were to be executed, while women and children were to be driven into the desert so that they would die of starvation and thirst. Trotha argued that there was no need to make exceptions for Herero women and children, since these would “infect German troops with their diseases.” Trotha further explained that his campaign to annihilate the Herero people “is and remains the beginning of a racial struggle”. Thereafter, German soldiers regularly raped young Herero women before killing them or letting them die in the desert.
The German general staff was aware of the atrocities that were taking place; its official publication, named Der Kampf,noted that:
This bold enterprise shows up in the most brilliant light the ruthless energy of the German command in pursuing their beaten enemy. No pains, no sacrifices were spared in eliminating the last remnants of enemy resistance. Like a wounded beast the enemy was tracked down from one water-hole to the next, until finally he became the victim of his own environment. The arid Omaheke [desert] was to complete what the German army had begun: the extermination of the Herero nation.

Governor Leutwein objected to Trotha’s “final solution” of the Herero and Nama “problem,” but not on humanitarian grounds. Rather he objected to the extermination of these indigenous peoples on economic grounds, writing that:
I do not concur with those fanatics who want to see the Herero destroyed altogether…I would consider such a move a grave mistake from an economic point of view. We need the Herero as cattle breeders…and especially as labourers.

By the end of 1904, the surviving Herero and Nama peoples remaining in South-West Africa, the majority of whom were women and children, were herded into concentration camps, where they were made available to colonists and private companies as slave laborers, or exploited as human guinea pigs in medical experiments. The most notorious of these camps was at Shark Island on the Atlantic coast, where the German authorities learned many of the lessons that were later employed at Auschwitz and other concentration camps during World War II. All prisoners were first divided into two categories: those who were fit to work and those who were not. For administrative purposes, pre-printed death certificates uniformly gave the cause of death as “death by exhaustion following privation.” Estimates of the mortality rate from disease, exhaustion and malnutrition at Shark Island and other concentration camps were between 45% and 74%. Despite these harsh conditions, any Herero who could still stand were taken outside the camp every day as forced laborers by the German guards, while the sick and dying were left without medical assistance. Shootings, hangings and beatings of the forced laborers were widely reported by eyewitnesses and in the press. One British eyewitness reported that “cartloads of their bodies were every day carted over to the back beach, buried in a few inches of sand at low tide, and as the tide came in the bodies were out, food for the sharks.”

Medical experiments on live prisoners were made by German doctors such as Dr. Bofinger, who injected Herero that were suffering from scurvy with various substances including arsenic and opium. After these “patients” inevitably died, he autopsied the bodies and reported the results. German doctors also experimented with dead body parts from prisoners, including those by Zoologist Leopard Schultzel, who noted that the taking of “body parts from fresh native corpses” was a “welcome addition.” An estimated 300 skulls were sent to Germany for experimentation, in part from concentration camp prisoners. The primary goal of the experimentation was to “prove” the superiority of the “white race” and the “Germanic people.” In October 2011, after three years of talks, the first skulls were returned to Namibia for burial, but the last human remains were not delivered back to Namibia until 2014.

Some researchers have drawn some direct links between the medical experiments by Dr. Eugen Fischer and later medical procedures used during the Nazi Holocaust. For example, Fischer later became chancellor of the University of Berlin, where he taught medicine to Nazi physicians. Otmar Freiherr von Verschuer was a student of Fischer, and Verschuer himself had a prominent pupil, the infamous Dr. Josef Mengele, who experimented on victims at the Auschwitz camp. In addition, Franz Ritter von Epp, who later participated in the liquidation of virtually all Bavarian Jews, took part in the Herero and Nama genocide as well.

Although the Shark Island Concentration Camp and other death camps were finally closed, the surviving Herero were distributed as forced or slave laborers to German settlers. All Herero over the age of seven were forced to wear a metal disc with their labor registration number. The Herero were also prohibited from owning land or cattle, both of which were considered necessary for survival.

In 1985, the United Nations’ Whitaker Report classified the massacres as an attempt to exterminate the Herero and Nama peoples of South-West Africa, and therefore one of the earliest cases of genocide in the 20th century.

In 1998, German President Roman Herzog visited Namibia and met Herero leaders. Chief Munjuku Nguvauva demanded a public apology and compensation, but Herzog stopped short of an apology, only expressing “regret.”

On August 16, 2004, at the 100th anniversary of the start of the genocide, a member of the German government, Heidemarie Wieczorek-Zeul, Germany’s Minister for Economic Development and Cooperation, apologized and expressed grief about the genocide, but the German government quickly made it clear that her speech could not be interpreted as an “official apology” by Germany or a basis for the payment of any compensation, reparations or restitution.
The parallels between the Herero and Nama Genocides and the Holocaust are inescapable. Even the rhetoric used by Trotha eerily presages the language used by Hitler to justify the mass extermination of the Jewish people as an “ethnic cleansing.” Trotha saw the annihilation of the Herero and Nama peoples as serving a higher purpose, as part of the establishment of a new world order. He said: “I destroy the African tribes with streams of blood… Only following this cleansing can something new emerge, which will remain.”

Until Germany formally acknowledges the Herero-Nama Genocide and provides appropriate compensation, this dark stain on German history and its collective psyche cannot be fully atoned for. The return of some skulls is just not a full and adequate response. The German government has had some discussions with representatives of the Namibian government, but even if some settlement is reached between those two countries, this will not provide any satisfaction to the Herero or Nama peoples themselves since they are recognized indigenous groups with identities separate and distinct from the government of Namibia itself. Paramount Chief Vekuii Rukora is the current recognized leader of the Ovaherero in Namibia, but the Ovaherero peoples also have communities in Botswana, South Africa and elsewhere in Africa, as well as an expatriate community in the United States and other countries. Even in Namibia, the Herero and Nama communities are in the distinct minority, and the political parties they support have never played a major role in the Namibian government itself, which has been dominated by one political party since the country gained its independence in 1990. As a result, Chief Rukora and others have asked the law firm of McCallion & Associates LLP to represent them in their search for recognition and justice from Germany.