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With 25 conflicts added to the Battle Map, April was a busy month. So busy the Dispatch was delayed again. But better late than never, right?

Just like March, April was heavy with conflicts revolving around guns, as the debate spurred by the Parkland shooting continued. But seemingly eternal hot-spots including Confederate flag displays, prayer in schools, and sex ed flared up, too.

  • Guns: We recorded seven gun-related incidents, most pitting freedom of expression against safety or beliefs about the appropriateness of gun-related messages. Allegations of curbed speech included the Shawnee Mission, KS, school district telling students what they could or could not say at their April 20 walkout to protest gun violence. Students in Wisconsin, Massachusetts, and Nevada alleged that their pro-gun expression was curbed in various ways. A principal’s pro-gun comments in Charlotte-Mecklenburg, NC, led to possible disciplinary action against her and prompted Rep. Robert Pittenger (R-NC) to write a letter to the U.S. Department of Education asking if other districts had seen an employee’s speech bring out the “thought police.” A North Carolina state legislator made a moral plea for arming teachers, saying, “We should give them a fighting chance. Otherwise, when they die, and children die whom they could have defended, their blood will be on our hands.” Finally, Kyle Kashuv, a Parkland survivor who has defended gun rights, was repeatedly in the news for actions school personnel allegedly took against him.
  • Confederate Flags: Overall the Map contains 34 conflicts involving displays of Confederate flags, and two new ones were added in April, both revolving around displays on trucks in school parking lots. In Bay City, Michigan, accusations that an African-American student ripped a flag off a truck and the school did nothing about it prompted both pro-flag and Black Lives Matter demonstrations that closed the high school for a day. In Cleveland County, NC, students were suspended for flying Confederate flags. District officials, reacting to widespread displeasure over stories that flag displays were banned, said that it was fine to fly American flags, just not Confederate.
  • Sex Education: Sexuality has so many moral, religious, and safety ramifications, it’s no wonder it is constantly inflaming conflict. Indeed, I still need to read the book (it’s actually been a busy several years, not just month) but scorching disagreement over sex ed is an international phenomenon. April saw a national, coordinated effort to get parents to remove their kids from school to protest overly explicit sex education—dubbed the “Sex Ed Sit Out”—no doubt patterned after the Parkland gun walkout. Meanwhile a bill was introduced in Louisiana to go in the opposite direction, moving away from abstinence-only sex education.
  • Religion: Sex ed elicits a lot of religious concerns, but more directly religious expression and activities also spurred battles in April, as religion has done from the very beginning of public schooling. A bill was introduced in the Louisiana Senate to allow teachers to pray with students during the school day as long it doesn’t interfere with teaching. The Freedom from Religion Foundation warned that the legislation “would encourage teachers to show their students that they prefer and endorse Christianity, ostracizing non-Christian students.” Meanwhile, a teacher in Mobile, AL, was sent home after wearing a t-shirt that said “Just Pray.” Wrote teacher Chris Burrell in a since-deleted Facebook post, “I wasn’t trying to promote religion, it was just my Monday feel-good shirt.” Finally, Worcester, Maryland, saw people (ironically) getting angry over “Mindfulness” yoga, which some residents thought was putting Hindu spiritual activities into the schools, not just promoting good social and emotional health.

There were other conflicts in “the cruelest month,” of course—big headline grabbers involved a racially charged “promposal,” flowers for a gay teacher, and ordered use of Band-Aids—and we also asked a poll question on our Facebook page: “Should parents have the right to keep their child home to protest sex education?” The overwhelming response—95 to 5 percent—was “yes.” Right now we’re asking if it is acceptable for a teacher to pull a student’s hair, presumably in jest, to wake him up. Vote now, and we’ll report the results next month—hopefully towards the beginning of the month.

Richard Clarida had his nomination hearing to become Vice Chair of the Board of Governors of the Federal Reserve System before the Senate today.  He delivered a nearly mistake-free performance, giving articulate and concise answers to Banking Committee members’ questions.  His responses showed an understanding of both the Fed’s current normalization plans and some political concerns.

Clarida is widely agreed to be an expert on the international monetary system, with his nomination receiving a bipartisan letter of support, a rare occurrence in today’s Washington.  However, most of the questions he fielded were on the regulatory aspects of the Fed.  Here, Clarida mostly underscored Chair Powell’s interest in employing cost-benefit analysis to appropriately tailor regulations throughout the financial system, without sacrificing safety and soundness. 

Clarida’s missed opportunity came when Senator Elizabeth Warren asked whether any Fed “rule” could be made stronger.  Candidly, his answer was mostly boilerplate.  Instead of standard talking points, Clarida could have highlighted the evolution of his own thinking on monetary rules and targets since the crisis that has led him to embrace a price level targeting regime.  While such a target is better than the Fed’s current inflation target, there are reasons to believe Clarida may become an advocate of superior option: nominal GDP level targeting.  Adopting the proper target would improve monetary policy, in terms of both credibility and effectiveness, and address many of the concerns voiced by Senators today—from seeing escalating home foreclosures during downturns to having the Fed employ multiple rounds of QE to combat those slowdowns.

The Washington Post editorialized last month in favor of dropping the voting age to 16. I dashed off a letter to the editor, which they didn’t run, and is here adapted:

At what point are young people to be entrusted with important life responsibilities? The Post has repeatedly opposed easing the drinking age from 21 so as to allow persons of 18 or 20, who may include service members returning from combat missions, to enjoy a glass of beer. It opposes subjecting late-teen juvenile offenders to the level of accountability applied to adult criminal defendants. Its coverage suggests sympathy with proposals to raise the marriage age to 18, which would mean that a couple of 17 is not deemed mature enough to enter on binding vows of mutual support even with parental blessing and judicial ascertainment of their independent choice.

Now the Post supports slashing the voting age to 16. Perhaps the pattern here is that the Post sees 16 year olds as incapable of making decisions to govern their own lives, yet competent to govern everyone else’s.

 [cross-posted from Overlawyered]

On Friday, White House Chief of Staff John Kelly justified the administration’s new policy of separating children from parents fleeing violence in Central America by explaining:

They’re not MS-13… . But they’re also not people that would easily assimilate into the United States, into our modern society. They’re overwhelmingly rural people. In the countries they come from, fourth-, fifth-, sixth-grade educations are kind of the norm. They don’t speak English; obviously that’s a big thing. … They don’t integrate well; they don’t have skills.

His comments mix true facts—that Central American immigrants aren’t criminals, that they tend to have less education, that they often speak less English—with several inaccuracies—that they can’t fit into modern society, that they don’t have skills that the United States can employ, and ultimately that they don’t assimilate or can’t integrate well.

First Generation Central American Immigrants Assimilate

Kelly is correct that the vast majority of Central American immigrants do not speak English when they arrive in the United States. In 2016, according to data from the American Community Survey, 82 percent of Central American immigrant adults over the age of 25 who arrived that year spoke English “not well” or “not at all,” but as Figure 1 shows, length of residence does appear to result in greater language acquisition, with nearly three quarters knowing English after three decades or more in the United States.

Adult Central American Immigrants Speaking English Not Well

Their rapid integration into the labor market belies their supposed lack of skills and inability to adapt to a modern economy. With less than a year in the United States, already nearly half of Central American adults had found employment in 2016. As Figure 2 indicates, employment rates increase with the length of residence in the United States. Those with more than five years in the United States had an employment rate over 70 percent, more than 10 percentage points higher than the rate for all U.S. adults.

Share of Employed Adult Central American Immigrants

Naturally, this labor market integration eventually raises immigrants out of poverty. As Figure 3 shows, poverty among Central American adult immigrants who have lived in the United States in 2016 drops substantially, and those with 30 or more years experience in the United States had a lower poverty rate in 2016 than all U.S. adults.

Share of Adult Central American Immigrants in Poverty

It is possible that the better outcomes for immigrants who have lived in the United States longer were caused by better starting points, rather than by assimilation. I used the 1-year sample from 2006 to compare to 2016 to verify that residence is driving these trends, not wealthier and more employable immigrants in prior waves. For example, 78 percent of Central American immigrant adults who arrived from 2002 to 2006 spoke English “not well” or “not at all” in 2006. In 2016, only 63 percent of those who arrived during those years did. In 2006, just 60 percent of immigrant adults who arrived that year were employed. 73 percent of them were in 2016.

Descendants of Central American Immigrants Assimilate

Perhaps Kelly meant that the children and grandchildren of Central American immigrants don’t assimilate well. Unfortunately, the American Community Survey doesn’t make it easy to identify people as the children of Central Americans once they reach adulthood. However, they do ask about a person’s ancestry, and since most Americans with Central American ancestry are the children of immigrants, this category allows us to understand the trends on the intergenerational assimilation of Central Americans. Ancestry is a better measure than ethnicity, which people often abandon after one or two generations.

English language assimilation continues even faster into the second generation. Figure 4 highlights the impressive difference between first-generation immigrants with Central American ancestry and their descendants born in the United States (i.e. “natives”). 91 percent of Americans with Central American ancestry speak English “very well” with another 6 percent speaking it “well”. Only 3 percent speak it poorly or not at all. This compares with 49 percent in the first generation.

English Language Proficiency of Adults

The descendants of Central American immigrants also make significant strides in educational attainment. Kelly is right that Central American immigrants have little formal schooling—half had dropped out of high school, and just eight percent had a college degree in 2016. Adults with Central American ancestry who were born in the United States had the exact same level of educational attainment as all other natives—30 percent had a college degree, and only 10 percent dropped out of high school.

Educational Attainment for Adults

Central American native-born adults have no fall-off in terms of finding jobs either. In 2016, 78 percent of them were employed—a higher rate than Central American immigrant adults and nearly 20 percentage points higher than all other adults born in the United States.

Employment Status for Adults with Central American

Nearly 28 percent of native-born children with Central American ancestry were in poverty in 2016, but as Figure 7 shows, the percentage drops sharply among adults to the same or lower level than other U.S.-born Americans. Fully 90 percent of Americans with Central American ancestry over the age of 36 were not in poverty.

Share in Poverty for Adults

Other measures of assimilation—like patriotism—are difficult to capture in the American Community Survey data. But to the extent that enlisting in the military reflects a love for country, American adults with Central American ancestry were more than twice as likely to be an active duty member of the military than other U.S.-born American adults, as Figure 8 shows.

Share in Active Duty Military for Adults

How to Improve Assimilation: Give Legal Status

The level of assimilation that Central American immigrants and their children achieve is remarkable given that nearly half of all Central American immigrants are in the United States without formal legal status. This means that they cannot find legal employment, that the law requires employers to discriminate against them, that they cannot ever naturalize and become citizens, that they cannot receive in-state tuition and other benefits available to legal immigrants in many states, that they have no certainty about their future and could be forcibly removed at any time.

In other words, integration of Central American immigrants is occurring despite the best efforts of the United States government to prevent it. If Kelly is concerned that the rate of assimilation is still not quick enough, he should argue for legalizing immigration to the United States for workers without a college degree and for giving a pathway to citizenship to those who have lived in the United States for several years. These measures would incentivize better integration than criminally prosecuting parents and separating them from their children.

Obviously, Kelly’s concerns—even if true—have no bearing on the reasonability of forcibly taking children away from their parents. But at a minimum, we can conclude that Kelly’s concerns about assimilation and integration are wildly overblown. Central Americans assimilate quite well.

North Carolina is becoming the latest hot spot in the education funding wildfire—thousands of protesting teachers are expected in Raleigh on Wednesday—so before I deliver the promised wrap up on my state spending series, I thought I’d add NC to the mix.

As you can see on the following chart, North Carolina’s total spending per-pupil, which includes both operational and capital costs, fell appreciably between the 1999-00 school year, the earliest with readily available federal data, and 14-15. It dropped from inflation-adjusted $10,397 to $8,986, a roughly 14 percent decline. Like other states already profiled, spending peaked right before the recession, but unlike hot-spot states Colorado, Oklahoma, and West Virginia, it never recovered to eventually exceed the beginning of the period. It basically kept dropping until the last year in the period.

Where have the biggest changes been? Breaking the spending down in the chart below, the state has generally kept instructional spending pretty steady, ending only 3 percent lower in 14-15 than 99-00. The big drops were in capital outlays and interest on school debt. The latter disappeared almost entirely, and the former dropped 71 percent, from $1,549 to $448. Like other hot-spot states, North Carolina saw increases in various support categories, with the biggest percentage increase in “other support,” which grew 50 percent.

So there’s your North Carolina snapshot. Coming next: Our final installment looking at some of the possible reasons for these changes.

Robert McCoy was charged with the murder of three of his family members in Bossier City, Louisiana. The state brought capital charges against him, but McCoy maintained his innocence—claiming he was not even in the state at the time of the murders—and demanded a jury trial. But in light of the evidence against him, McCoy’s lawyer thought the best trial strategy would be to admit guilt to the jury and hope for leniency in sentencing. McCoy adamantly opposed this plan, but his lawyer pursued it anyway and told the jury that McCoy was guilty. The jury returned three murder convictions and sentenced McCoy to death.

Today, the Supreme Court held that it violated the Sixth Amendment for McCoy’s lawyer to admit his guilt over his express objection, and it ordered the state of Louisiana to grant McCoy a new trial. The majority opinion by Justice Ginsburg accords with the principle of defendant autonomy, and the long-standing maxim that the Sixth Amendment guarantees the right to a personal defense. While a defendant is, of course, guaranteed the “Assistance of Counsel,” the defendant himself remains master of the defense and is entitled to make fundamental decisions in his own case. The heart of the Court’s analysis closely follows the framework (and language) articulated in Cato’s amicus brief, which emphasized that defendant autonomy—not ineffective assistance of counsel—was the proper lens through which to view this case:

Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category [of decisions within the defendant’s sole prerogative]. Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.

Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as [McCoy’s lawyer] did in this case. But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration. When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.

Slip op. at 6-8 (citations omitted).

The Supreme Court’s vindication of McCoy’s autonomy is all the more crucial because the jury trial itself—that cornerstone of American criminal justice—is fast vanishing to the point of practical extinction. Our Constitution and legal heritage are premised on citizen participation in the criminal justice system. But today, more than 95 percent of criminal convictions are obtained through plea bargains, in which prosecutors can bring insurmountable pressure against defendants. Even innocent defendants are often forced to plead guilty, simply because the threat of a much harsher sentence at trial is too great. And coercive plea bargaining is exacerbated by the practical inability of most appointed defense counsel to subject prosecutions to meaningful testing. Public defenders are saddled with impossible caseloads, with individual attorneys often required to manage hundreds of different felonies per year, and even more misdemeanors. The role of defense counsel, intended to serve as the defendant’s trial advocate before a jury, has largely been reduced to that of plea negotiator.

There’s no easy solution to the problem of coercive plea bargaining, but the least we can do is not discourage trials even more than we already have. Jury trials entail risk and uncertainty, but the defendant should know that he will have a zealous advocate, committed to defending his innocence and putting the state to its burden. The Court’s decision today—guaranteeing defendants the right to decide for themselves whether to admit guilt at trial—is a small but important step toward restoring the centrality of the jury trial in our adversarial system of criminal justice.

The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Passed during Reconstruction, these provisions held the promise that freedman would finally be granted the same rights and protections as their white brethren. Yet less than five years after this amendment was enacted, the Supreme Court eviscerated the Privileges or Immunities Clause in what became known as the Slaughter-House Cases (1873).

There the Court held that the clause—which was supposed to protect substantive rights against state infringement—only guaranteed a limited set of federal rights, such as the right to access seaports, to use navigable waters, and to demand protection on the high seas (not exactly the key motivations for the Civil War). The ruling not only delayed the protection of African Americans’ civil rights, it left the Court’s Fourteenth Amendment jurisprudence hopelessly confused and contradictory.

Slaughter-House eventually led to the development of modern “substantive” due process doctrine as a makeshift bandage over the hole in the Fourteenth Amendment left by the unprotected privileges and immunities. While allowing the Court to protect some rights, the “incorporation” of certain rights through the Due Process Clause relegated other, often “economic” rights to second-class status. Instead of judges’ taking a hard look at the actual reasons a law was passed and asking whether the government has overstepped its constitutional bounds, infringements of the right to earn a living or the freedom of contract barely receive a passing glance. They are upheld unless nobody—not even the judge hearing the case!—could possibly imagine a legitimate rationale for the law. Suffice it to say, hardly any laws are struck down under this so-called rational-basis test.

Enter Ndioba Niang and Tameka Stigers, both of whom are traditional African-style hair braiders attempting to support themselves by offering their services to willing customers. The Missouri Board of Cosmetology and Barber Examiners, however, demands that they first pay thousands of dollars to receive completely irrelevant training that has virtually nothing to do with hair-braiding. Applying the usual government-can-do-whatever-it-wants-regarding-economic-regulations level of judicial scrutiny, both the federal district court and the U.S. Court of Appeals for the Eighth Circuit upheld the licensing scheme.

This approach is wrong: ethically, historically, and legally. There is a long and well-documented history recognizing the right to earn an honest living as being at the center of the Anglo-American legal tradition and indispensable to the maintenance of a free and open society. Industry insiders often lobby for licensing laws and regulations—and then populate the boards or agencies tasked with enforcing the new rules as a means of limiting their competition. By contrast, those harmed are often politically powerless groups with limited means to fight back. But as long as the government says the magic words of “safety,” “health,” or “consumer protection” in asserting its restrictions, courts are content to turn a blind eye.

Because the right to earn a living is one of the basic rights that our Constitution was formed to protect, Cato has filed an amicus brief supporting the hair-braiders’ petition to the Supreme Court. We ask that the Court take Niang v. Tomblinson and establish that courts must meaningfully examine government incursions against this essential liberty, regardless where in the Fourteenth Amendment it finds the relevant right.

 

The smart money was always on the Supreme Court to make the kind of ruling it did today, strike down a federal law that purported to tell states whether they could legalize sports betting. That doesn’t make it any less exciting or refreshing—and it’s deliciously apt as both the Washington Capitals and Vegas Golden Knights remain in the hunt for the Stanley Cup. 

In the first “anti-commandeering” case in more than 20 years, the Court resoundingly (7-2) reaffirmed a principle that should be obvious: the federal government can’t force states to pursue federal policy. That there were seven votes for that proposition underlines the renewed interest in federalism that’s spreading across the country. 

Indeed, as important as Murphy v. NCAA is for the gaming industry, the reason this case was so closely watched is because of its implications on so many areas of policy that have revealed federal-state tensions of late. From environmental regulation to sanctuary cities, marijuana to guns, states are flexing their sovereign muscles in a way that strengthens our body politic. It’s insane to think that in a large, pluralistic country like the United States, so many decisions should be made one-size-fits-all in Washington. Federalism is good for red states and blue states alike. 

Finally, a note on what the Court didn’t decide today: despite the protestations of the two dissenting justices (Ruth Bader Ginsburg and Sonia Sotomayor), it’s not at all clear that the federal government has constitutional authority to ban or regulate in-state gambling (if it decided to do so directly now that it can’t force the states to do its dirty work). If New Jersey and Nevada want to allow the March Madness money to flow, while Utah and Georgia don’t, what business is it of Congress? Justice Clarence Thomas was right to call this out—so remember this day if and when the justices ever reconsider their overexpansive Commerce Clause jurisprudence. 

For more background on this case, see my previous post discussing Cato’s brief, my op-ed on the subject, and my short law review article

 

When medical examiners conclude that the cause of death is opioid overdose, they rely primarily on the opioid blood concentration level in comparison to a pre-determined “fatal” cutoff. This approach is potentially inaccurate; the fatal ranges used are wide, and they overlap significantly with the ranges for living opioid users.

Numerous fatal ranges have been quoted for methadone: 220-3040μg/L (mean, 1371), 320-2980μg/L (mean, 772), and 600-3000μg/L. Baselt’s Disposition of Toxic Drugs and Chemicals in Man found fatal levels of 400-1800μg/L (mean, 1000) and 60-3100μg/L (mean, 280). These ranges are much too broad for determining cause of death because they include ranges experienced by many living users.

Worm et al. (1992) compared the methadone blood concentration levels of individuals who reportedly died from methadone toxicity while in treatment, out of treatment, or living: 30–1240μg/L (mean, 470), 30–990μg/L (mean, 270), and 30–560 μg/L (mean, 140). While the mean was lower for living methadone users, the ranges overlapped substantially.

Loimer and Schmid (1992) found a blood concentration range of 20–1308 μg/L (mean, 451.4) after a moderate oral methadone dose in 104 living addicts. Gagajewski and Apple (2003) found blood concentration ranges in deaths where methadone was an incidental finding of 180-3000 μg/L (mean, 1100 μg/L). In contrast, by Milroy and Forrest (2000) found the mean methadone range for those who reportedly died from methadone toxicity as 584–2700μg/L (mean, 584), with the majority under 500 μg/L.

Karch and Stephens (2000) compared the blood concentration levels between deaths “caused” by methadone toxicity and deaths where methadone was an incidental finding; they found no statistically significant difference.

Fatal morphine to blood concentrations from heroin use also vary widely. The minimum fatal concentration under North Carolina standards is 100μg/L, and Baselt has given fatal ranges of 50-3000 μg/L (mean, 430) and 10-1100 μg/L (mean, 300). Steven Karch, in his book Pathologies of Drug Abuse, examined twelve studies regarding fatal morphine concentrations and also found a wide range of fatal levels, from 100-2800 μg/L.

Darke et al. (1997) compared morphine concentration levels of current heroin users and heroin overdose deaths. Heroin-related deaths had a higher median concentration (350μg/L versus 90μg/L), but the concentrations overlapped substantially. In particular, a third of current users had morphine concentrations double the “fatal” level of blood morphine concentration.

Darke et al. (2007) compared the morphine concentration levels in deaths ruled morphine toxicity with those ruled homicide but with morphine in the body, finding no significant difference between the two groups.

With fatal toxic concentrations levels being so broad and overlapping with ranges that many addicts live with, a toxicology report is of little help when determining the cause of death. These broad ranges can skew medical examiner’s reporting and lead to an overrepresentation of heroin and methadone overdoses.

Theseus Schulze contributed to this blog post.

President Trump is seeking tariffs of $50 billion annually on more than 100 products imported from China. He is targeting telecommunications and other high-technology sectors where he and others contend that American companies have, in effect, been forced to turn over their technology to Chinese partners – in some cases by revealing their trade secrets – in exchange for being allowed to do business in China and have access to the booming Chinese market. These tariffs are to be imposed outside the legal bounds of the WTO treaty through unilateral actions taken under Section 301 of the US Trade Act of 1974.

For many of these U.S. allegations about China, however, WTO obligations apply, and could provide more effective recourse.  The various options under the WTO treaty for challenging Chinese trade practices will be explored in more detail in a forthcoming paper. This blog post focuses on one particular WTO obligation, covering trade secrets.

The Trump administration has been raising concerns about China’s failure to protect trade secrets, but evidently ignored so far is Article 39 of the TRIPS Agreement in the WTO treaty, which establishes a WTO obligation for the “Protection of Undisclosed Information.”[1] The United States was among the leaders in advocating the inclusion of Article 39 in the TRIPS Agreement as part of the WTO treaty, but the United States has, to date, not initiated an action in WTO dispute settlement claiming a violation by China of this WTO obligation.

Article 39 is a major innovation in intellectual property protection under international law. It is “the first multilateral acknowledgement of the essential role that trade secrets play in industry”[2] and “the first multilateral agreement to explicitly require member countries to provide protection for… ‘trade secrets.’”[3] One of the accomplishments of the Uruguay Round of multilateral trade negotiations that concluded the WTO treaty and established the WTO, “’[t]he inclusion of trade secrets under the TRIPS has been hailed as a major innovation.”[4]

This innovative WTO obligation offers an opportunity for challenging both the sufficiency of Chinese law and its application as part of a WTO complaint that China has not fulfilled its responsibility to enforce the protection of “undisclosed information.”

A specific focus of any WTO complaint by the United States relating to the failure of China to enforce the protection of trade secrets will be the continuing legal shortcomings of the Anti-Unfair Competition Law of China, which, as the Office of the United States Trade Representative has pointed out in its Special 301 Report for 2018, include “the overly narrow scope of covered actions and actors, the failure to address obstacles to injunctive relief, and the need to allow for evidentiary burden shifting in appropriate circumstances, in addition to other concerns.”[5] As USTR observes, in the 2017 update of the Anti-Unfair Competition Law, “despite long-term engagement from the United States and others – including from within China – China chose not to establish a stand-alone trade secrets law, and instead continued to seat important trade secrets provisions in the AUCL, an arrangement which contributes to definitional, conceptual, and practical shortcomings relating to trade secrets protection.”[6]

Those who would rather apply the broad illegal brush of unilateral tariffs instead of the sharp legal stiletto of a precise claim in WTO dispute settlement will protest that Article 39 has never been tested in a WTO dispute. This is true. Yet similar protests were heard ten and fifteen years ago against bringing legal claims in WTO dispute settlement under the Agreement on Technical Barriers to Trade and the Agreement on the Application of Sanitary and Phytosanitary Measures, which have both since been proven to be reliable tools for upholding and enforcing WTO obligations. Not having been tested is not the same as having been tried and found wanting. Until proven otherwise, a legal claim of a failure to protect “undisclosed information” under the novel obligation in Article 39 of the TRIPS Agreement must be seen as a potentially positive means to the end of protecting trade secrets.

It will certainly be said as well that proving a legal claim of illegal infringement of undisclosed information under Article 39 in WTO dispute settlement will not be easily accomplished. This also is true. As the complainant, the United States will have the burden of proving this and all its legal claims against China in  WTO dispute settlement. In challenging the enforcement of the Chinese law, the United States, with respect to each alleged infringement of a trade secret, will have to show to the satisfaction of a WTO panel that there is in fact “undisclosed information” comprising a trade secret. Moreover, the United States will have to prove to the panel each particular instance of the illegal infringement of specific trade secrets.

All of this will necessarily involve the accumulation and the submission of a veritable mountain of evidence – not easy in any case and certainly not easy in a case against a WTO Member with such an opaque and elusive economic and administrative system. Without question, China presents a formidable climb in the necessary fact gathering for winning a WTO case. But the United States has climbed this mountain successfully before in a series of complicated WTO complaints it has brought and won against China. Why is there so little confidence that the world-class legal advocates at USTR can climb it again?

Lastly, it will doubtless be insisted by those busy imposing unilateral tariffs that pursuing this claim and others in the WTO will take much time and much trouble and that, even if the United States prevails, a remedy is at best several years away. This likewise is true. But how much time and how much trouble are likely to result from the retaliatory legal actions and the retaliatory trade actions that are the certain consequence of tariffs imposed by the United States unilaterally and outside the legal framework of the WTO? Will US trade secrets be any better protected during the time it would take instead to seek and implement a WTO judgment under Article 39? And what other untold and untoward consequences will there be from an abandonment by the United States of America of the international rule of law?

[1] Article 39, TRIPS Agreement.

[2] Francois Dessemontet, “Protection of Trade Secrets and Confidential Information,” para. 3, at https://www.unil.ch/files/live/sites/cedidac/files/Articles/Protection%20Trade%20Secrets.pdf .

[3] Douglas C. Lippoldt and Mark F. Schulttz, “Trade Secrets, Innovation and the WTO,” Think Piece, E15 Expert Group on Trade and Innovation, E15 Initiative (Geneva: International Centre for Trade and Sustainable Development and World Economic Forum, August 2014), 1.

[4] Francois Dessemontet, “Protection of Trade Secrets and Confidential Information,” para. 2.

[5] Office of the United States Trade Representative, “2018 Special 301 Report” (April 27, 2018), 40.

[6] Ibid.

In a recent opinion piece for the Wall Street Journal I highlighted the plight of America’s Finest, a fishing vessel that, unless it is granted a waiver, will be prohibited from operating in U.S. waters due to its violation of the Jones Act. Although built in Washington state, the ship used steel, amounting to approximately 10 percent of the ship’s weight, that was cut and bent in the Netherlands. Coast Guard rules related to the Jones Act limit the amount of such foreign-modified steel to 1.5 percent (foreign-made raw steel, in contrast, can be used in unlimited amounts). 

Unsurprisingly the column has generated some notes of dissent, including a letter to the editor from Chris Philips, the managing editor of Fishermen’s News:

Regarding Colin Grabow’s “The Jones Act Drives America’s Finest Into Exile” (op-ed, April 30): The Jones Act is a cabotage rule similar to those enacted in most countries having a coastline, including Canada, Japan, South Korea, China, Germany and France. Mr. Grabow claims: “The shipyard says it simply wasn’t aware of the rule.”

The shipyard in question has been building Jones Act vessels for more than 40 years. No one at Dakota Creek Industries, from the security guard to the president, is unaware of the rule.

Mr. Philips is correct that the Jones Act is a cabotage rule. His contention that it is similar to those of most countries, and those he lists in particular, however, is incorrect. The World Economic Forum, for example, has described the Jones Act as the “most restrictive example” of such laws and none of the countries listed by Philips feature the Jones Act’s requirement that ships engaged in cabotage trade be domestically built. Furthermore, both Germany and France as members of the European Union allow ships from other EU members to engage in cabotage.

As for the claim by the shipyard which built America’s Finest that it was “wasn’t aware of the rule,” a fair reading of my column makes plain that this was in reference not to the Jones Act, but rather its specific restriction that foreign-modified steel is limited to 1.5 percent of the ship’s weight. Indeed, I cited that 1.5 percent figure in the sentence preceding the claim about a lack of awareness. 

Philips then continues:

Mr. Grabow says the price of new vessels encourages the use of older ships. This is a no-brainer and a non sequitur. The same market forces apply to any depreciable asset world-wide. He also makes the oft-repeated claim that the Jones Act “made it difficult to ship emergency aid to Puerto Rico.” This is simply false.

Such comments reflect a failure to engage with the substance of what I wrote. By prohibiting access to foreign-built ships—or in this case, domestically-built ships which use too much foreign-worked steel—the Jones Act artificially drives up the cost of newer vessels. This, in turn, forces mariners to work on ships that are less safe and efficient than newer vessels. Indeed, the company which ordered America’s Finest was motivated in part by a desire for greater efficiency and to provide its employees with safety improvements. This is by no means a non sequitur, and gets to the core of the burden imposed by the Jones Act.

Regarding aid to Puerto Rico, meanwhile, I stand by my words. Greenpeace, for example, says that it would have been easily able to transport donated supplies on a foreign-registered vessel to Puerto Rico absent the Jones Act, but instead the matter was “quite complicated.” Economist Thomas Grennes further notes that a “Norwegian-flag ship that was docked in New Orleans offered to take supplies to Puerto Rico, but the waiver expired before it could complete its voyage.” 

Philips concludes:

The Jones Act exists to protect our nation’s shipbuilding industry, which is critical to the security of this country. Those of us in the maritime and military fields understand this very well.

If this is so then the Jones Act, as typical of protectionist schemes, is a failure. In 2015 the U.S. Maritime Administration (MARAD) listed the number of active shipyards in the United States at 124 of which only 22 are “mid-sized to large shipyards capable of building naval ships and submarines, oceangoing cargo ships, drilling rigs and high-value, high-complexity mid-sized vessels.” In comparison, Japan currently has over 1,000 shipyards and it is estimated that China has over 2,000. Europe has roughly 60 shipyards capable of producing ships at least 150 meters in length. 

Measured in terms of output the picture is equally dismal, with the shipbuilding sector hugely dependent on government contracts. As MARAD itself notes, 10 out of 12 large deep-draft vessels delivered in 2014 were to U.S. government agencies and “98 out of the 150 new vessels ordered from U.S. private shipbuilders [that year] were for the U.S. military.” This lack of competitiveness and dependence on government is also evidenced by the fact that from 2006-2016 U.S. shipyards produced an average of merely 4.1 tankers and cargo ships per year. This is the opposite of a thriving sector. 

Such statistics are the tip of the iceberg in documenting the Jones Act’s myriad shortcomings, both in terms of ensuring a healthy shipbuilding sector and bolstering the country’s national security. 

During yesterday’s Senate Select Committee on Intelligence (SSCI) confirmation hearing on Gina Haspel’s nomination to become director of the CIA, I noted on Twitter that the Army and the CIA had literally walked away from the lessons and successes on detainee/POW interrogations learned during the 1991 Persian Gulf War. That prompted responses like this:

Fair critique or missing my point?

I agree with Beale that the circumstances of the capture of Iraqi soldiers and officers in the 1991 Gulf War were different than the rendition, detention, and interrogation (RDI) program run by the CIA, and the people (actual terrorists or innocents) swept up in it. But the notion that one group of captives (cooperative, captured Iraqi general officers) should be subjected to one standard while another group (uncooperative, captured alleged/actual terrorists) should be subjected to a different, violent, and brutal standard is wrong–on moral, legal, and effectiveness grounds.

As Senator (and former tortured POW) John McCain (R-AZ) noted in 2014 when the SSCI Torture Report summary was released:

But in the end, torture’s failure to serve its intended purpose isn’t the main reason to oppose its use. I have often said, and will always maintain, that this question isn’t about our enemies; it’s about us. It’s about who we were, who we are and who we aspire to be. It’s about how we represent ourselves to the world.

The other refrain we’ve heard in the debate over Haspel’s nomination is the same one we’ve heard from torture proponents (like President Trump), namely that torture works. Let’s take another look at what the SSCI torture report summary had to say about the difference in results between the FBI and CIA interrogators when dealing with an alleged or actual “dedicated jihadist” that Mr. Beale describes. From p. 208 of that report:

As anyone who knows my work understands, I have lots of problems with the way the FBI often conducts itself. But there’s one thing that Bureau agents are generally quite good at–eliciting information, including confessions, from even hardened murderers. How much more useful, accurate information would we have received in the wake of the 9/11 attacks if the FBI had been responsible for all such interrogations? My guess is, a lot.

But there was a time when the Army itself–which has its own dark chapter on torture in the post-9/11 era–knew how to do interrogations right. It’s what I was referring to in my tweet regarding the operations of the Army’s Joint Debriefing Center (JDC) during the Gulf War. While I was still at CIA, I filed a FOIA to try to get those reports released. Not surprisingly, in 1994 the Army wasn’t keen on doing so, but I did manage to get a heavily redacted version released, which you can read here.

One reason I filed the FOIA was that as an Army Reserve officer, I was deeply proud of how my fellow soldiers had comported themselves during the campaign. This extract from the Intelligence Information Report (IIR) titled “The Gulf War: An Iraqi General Officer’s Perspective” shows why:

Doing interrogations right is about us, not our enemies. But when we do interrogations right, it only helps us. Whether that lesson has truly been learned will be revealed in the Senate floor vote on Haspel’s nomination. 

This week, housing activists sued Secretary Carson and the Department of Housing and Urban Development (HUD) for delaying implementation of Affirmatively Furthering Fair Housing (AFFH), a controversial Obama-era HUD rule. The suit claims AFFH “was of great importance to Congress in enacting the [Fair Housing] Act.”

But as I’ve outlined previously, there isn’t a linear relationship between the Fair Housing Act and AFFH. The Fair Housing Act is focused on discrimination in the housing market and AFFH is focused on segregation.

There are other problems with AFFH. For example, AFFH requires federal and local government to spend up to $55 million annually collecting information, a good deal of which is unhelpful to its objective of understanding why racial segregation occurs. AFFH requires local governments to provide information on racial and ethnic concentrations, but that information doesn’t really tell policymakers what they want to know.

If policymakers are interested in determining the cause of racial segregation in cities, they don’t have to collect data and guess at it. A major cause of racial segregation is already known: zoning regulation. Zoning regulation segregates by race because race is frequently correlated with income.

Zoning segregates by income through density limits, minimum lot sizes, and by reducing the supply of housing in cities, thereby creating regional housing affordability issues that push low-income racial minorities out.

San Francisco’s mass exodus of racial minorities is a good example of this in practice. As one Atlantic article put it, “The people moving out [of San Francisco] are less likely to have completed college, and they tend be older, African American, and Hispanic…Perhaps no aspect of the annual migration in and out of San Francisco is as notable as the outflow of African Americans.”

The data supports the idea zoning increases segregation. In one study, 50 percent of the difference in levels of racial segregation between leniently regulated (less-segregated) Houston and restrictively zoned (more-segregated) Boston were a result of restrictive regulation. In another study, reducing zoning regulation was estimated to reduce the difference in racial segregation by at least 35% between the most and least segregated areas.

Regulations that limit development density may have the largest impact on racial segregation. Up-zoning (or increasing allowable development density) would reduce segregation naturally as individual choice improves. Up-zoning would support property rights and improve housing affordability as it increases housing supply.

If policy makers have decided that racial segregation rather than racial discrimination is the issue, a useful alternative to AFFH would require cities to identify neighborhoods that are currently zoned for low-density development and make plans to up-zone them. Cities have this information on-hand and wouldn’t have to expend enormous resources gathering it. This information would provide useful information about the origin of racial segregation.

Although collecting information on zoning would be more helpful, the Fair Housing Act doesn’t call for it. That makes this suggestion similar to AFFH from a process standpoint.

As a result, HUD should do what they can to remove AFFH, and eliminate the up-to-$55 million/year price tag along with it. HUD monitoring racial and income segregation isn’t going to meaningfully reduce barriers to housing opportunity. Local and state government relaxing restrictive zoning will.

One story about poverty in the United States goes like this: Poverty is simple to escape. Finish high school. Get a job, even a menial one. Do not have kids until you’re married. And if you do all these things, you’re pretty unlikely to be poor.

Conservatives like this story because it suggests that no significant social changes are needed to end poverty. On this view, poverty may even be just a personal choice. It’s largely up to you whether you follow the so-called “success sequence” or not.

Critics, though, are quick to point out that the success sequence is much easier described than followed, and that following it is much easier for some people than for others. Failing or dangerous schools offer little reason for students to remain. Getting a job is easier in some places than others, and easier for some types of people than others. In some communities, marriage partners are all too few. And avoiding having children is a lot to ask, because it’s a natural human desire to want to have them.

If the success sequence doesn’t hold up so well, what do we do about it? And what specifically libertarian steps remain to be done to fight poverty?

This month at Cato Unbound, we’re debating the usefulness of the success sequence as a tool for thinking about American poverty. Cato Senior Fellow Michael Tanner has written the lead essay, which I encourage you to read. Comments are open, and we welcome readers’ feedback. Discussion with a panel of diverse outside experts will continue through the end of the month.

Compliance Week invited me to write on what’s wrong with the Foreign Corrupt Practices Act. Excerpt

Scenario: an American city hires an Asian-based bank to float a bond deal. Scandal! Turns out the bank wined and dined the mayor and council and treated them to sports events. After an investigation, the Asian bank agrees to put things right by paying millions of dollars to the government of France.

That’s crazy, right? What does any of this have to do with the government of France? But it’s certainly no crazier than the workings of our own Foreign Corrupt Practices Act, under which European companies have been made to pay penalties of $398 million and $240 million to the U.S. government over bribes paid to officials in Nigeria and Iran, respectively….

FCPA oversteps the proper bounds of federal lawmaking in at least four ways: it is extraterritorial, vicarious, punitive, and vague….

The business community in Washington has been pressing for legislation to clarify the 1977 law’s requirements, but I suggest we go further and re-examine things more fundamentally, including (beyond the problems above) the law’s break from principles of mutualism and comity in foreign relations and its role in scaring capable bidders away from infrastructure projects that could help lift some rural populations out of desperate poverty. “Making us feel better isn’t a good enough reason for a law.”

Full text here, and earlier FCPA coverage here, here, here, here, and here

In 2005 the Malaysian political leader Anwar Ibrahim visited the Cato Institute. In the photo at right, I’m giving him a copy of my book Libertarianism: A Primer, which he told me he had already read – in prison. What a thing for an author to hear! After becoming leader of the opposition People’s Justice Party, he was again imprisoned on trumped-up charges in 2015. He remains in prison today. But thanks to yesterday’s elections, it now seems that Anwar may soon not only be released from prison but be named prime minister.

It’s a complicated story. Anwar was a youth leader and rising star in UNMO, the party that has ruled Malaysia for six decades since independence. He became finance minister and deputy prime minister under Mahathir Mohamad, who became well known for his defense of “Asian values” against supposedly Western notions of democracy and human rights. But Anwar fell out with Mahathir over the Asian crisis and charges of corruption. In 1998 Anwar was removed from office and then jailed in a trial that was criticized around the world. Amnesty International said that his trial “exposed a pattern of political manipulation of key state institutions including the police, public prosecutor’s office and the judiciary.” He was released in 2004 but banned from participation in politics for five years. After his return to opposition politics, he again angered the ruling party and was sent back to prison. Throughout his travails he was smeared in state-dominated media as homosexual, pro-Israel, and pro-American, the usual sorts of charges that authoritarian governments make against their critics. It should be noted that Anwar is no saint, and he tried to turn some of the same charges back against his persecutors.

Meanwhile, Mahathir retired as the world’s longest-serving elected leader in 2003. He became a sharp critic of his UNMO successors, Abdullah Ahmad Badawi and later Najib Razak. This year, at age 92, he became the opposition candidate for prime minister. From jail Anwar supported him. This week Mahathir led his new party to victory and has just been sworn in as prime minister. He has promised to release Anwar from prison and make him prime minister within two years. Observers are hopeful that Anwar’s leadership would mean reform in Malaysia: an end to kleptocracy and corruption and perhaps an economy that is “inclusive, rules-based and competition-oriented with a large, well-funded social safety net,” much like Singapore. According to the Human Freedom Index, Malaysia could use improvement in all areas.

Last year I complained that President Trump was welcoming Anwar’s jailer, Najib Razak, to the White House. Now of course Anwar is joining forces with his original jailer. What a long strange trip it’s been. But hopefully it’s not over.

Congress looks set to pass long-awaited changes to the Dodd-Frank Act that would relieve small and medium-sized banks from some of the onerous burdens of the post-crisis financial legislation package, the Hill reports:

The Senate in March passed a bipartisan bill to exempt dozens of banks from the stricter Federal Reserve oversight under Dodd-Frank and scores more from lending restrictions and reporting requirements. The deal, sponsored by Senate Banking Committee Chairman Mike Crapo (R-Idaho), passed by a 67-31 vote with support from more than a dozen Democrats.

A deal between the House and Senate would clear the way for Congress to pass the biggest changes to the Dodd-Frank financial rules since the law was enacted in 2010. The House and Senate have squabbled over the Senate bill, which Ryan vowed to freeze unless the Senate agreed to take up provisions from the House.

House Financial Services Committee Chairman Jeb Hensarling (R-Texas) said he was “excited that our negotiations over the last few weeks have culminated in the Senate agreeing to vote on our House bills.”

The 849-page Dodd-Frank Act introduced 27,000 new regulations on the financial sector. The Senate bill, which the House now appears ready to support, is only a modest step to relieve the burden of such a massive exercise in rule-making.

But the effort is nonetheless welcome. Since Dodd-Frank’s passage in 2010, compliance costs have rocketed up, especially for small banks. The number of new banks has virtually ground to a halt, while there is evidence that reduced small-business lending has adversely affected local communities across America.

To ease the supervisory burden on small and medium-sized institutions, and to exempt them from trading restrictions of which they were never the target, is thus necessary and appropriate. This the Senate bill does, and for that reason it constitutes a positive move to facilitate lending, competition and access to financial services.

study published last year by researchers at the University of Pennsylvania and Pennsylvania State University found that state Prescription Drug Monitoring Programs (PDMPs), a popular method used to drive down the opioid prescription rate, do not drive down opioid overdose death rates, but might have the unintended consequence of adding to them, by driving users to the underground market where dangerous drugs like fentanyl and heroin await them. Another study last October by a Purdue University researcher found that while PDMPs drove down the prescription rate of oxycodone, they significantly drove up the rate of heroin use.

Yesterday the Annals of Internal Medicine published a systematic research review by Columbia University epidemiologist David Fink and others that drew the same conclusion. The authors stated, “Evidence that PDMP implementation either increases or decreases nonfatal or fatal overdoses is largely insufficient, as is evidence regarding positive associations between specific administrative features and successful programs.” They added, “implementation of PDMPs may have unintended negative outcomes—namely, increased rates of heroin-related overdose.”

Meanwhile, all 50 states have implemented PDMPs and state and federal policymakers seem focused on beefing them up. This is driven by the mistaken belief that the opioid overdose rate is primarily the result of doctors over-prescribing opioids to patients. As I have written numerous times, the overdose crisis is primarily a product of drug prohibition, as non-medical users access drugs in the dangerous black market. PDMPs might be responsible for the dramatic drop in the opioid prescription rate these last 8 years (the rate peaked in 2010), but as the prescription rate has dropped the overdose rate has increased—while fentanyl and heroin are now causing these overdoses the majority of the time.

How much more evidence will it take before policymakers finally realize their approach is not evidence-based but is contributing significantly to the overdose crisis?

Over a decade ago, Rickey Kanter’s company, Dr. Comfort, shipped diabetic shoe inserts to a podiatrist in Florida. Dr. Comfort sold the inserts as being Medicare-approved, but they were not. Because of these events, Kanter, to this day, cannot legally own a gun.

U.S. and Wisconsin law prohibit anyone convicted of a crime “punishable by imprisonment for a term exceeding one year” from possessing any firearm or ammunition. In 2011, Kanter pled guilty to a single count of mail fraud for Dr. Comfort’s 2006 delivery of non-compliant shoe inserts to a podiatrist. Kanter has no other criminal convictions, is not under indictment, or a fugitive from justice, or an unlawful user of any controlled substance. He has not been judged mentally defective, been dishonorably discharged from the armed forces, renounced his citizenship, or been the subject of a restraining order relating to an intimate partner. In fact, Kanter has no history of any violent behavior at all.

So he brought suit in federal court, arguing that the categorical prohibition of firearms possession by felons was unconstitutional as applied to him: a non-violent, one-time offender. The district court sided with the government, which argued that a permanent revocation of Second Amendment rights for all felonies—no matter how serious or remote in time—passes constitutional muster. The court paid lip service to Kanter’s Second Amendment rights, finding that the commission of any felony shows that he “clearly disrespected important laws in the past,” which justifies completely stripping him of his rights. Kanter appealed to the U.S. Court of Appeals for the Seventh Circuit.

Because fundamental rights cannot be so summarily disregarded, Cato filed a brief as amicus curiae supporting Kanter. The scope of what is considered a felony has changed dramatically in recent decades, with more and more minor offenses carrying criminal penalties. This poses a serious concern where the government does not distinguish terrorism and armed robbery from falsification of fishing records or Martha Stewart’s infamous white lies in stripping a person of fundamental rights.

The district court was motivated by efficiency of administration—that simply treating all felons the same makes it easier for the government—and by a broad conception of legislative power to “establish certain ‘categorical disqualifications’” to the rights of the people. We disagree. Where any constitutional rights are at stake, courts must engage in meaningful review—especially of individualized challenges to such broad and overreaching laws. If the government wants to strip an individual of his rights, it must demonstrate, with actual evidence, that the deprivation survives an exacting level of scrutiny.

Falsely advertising a shoe insert may not be admirable conduct, but arguing that doing so means that a person should not be able to defend himself with a gun seems like shooting from the hip.

On May 9, CIA Deputy Director Gina Haspel will get her chance to shape–or reshape–the narrative surrounding one particular episode in her 30+ year CIA career: her time running one of the now-infamous Agency “black site” interrogation centers used in the Bush administration’s torture program. Haspel’s challenge will be in getting Senators and the public to look beyond existing media accounts about her alleged role in running the “black site” at which al Qaeda suspect Abd al-Rahim al-Nashiri was repeatedly waterboarded, and her role in carrying out the destruction of videotapes showing the gruesome sessions. 

Despite the benefit of an unprecendeted (and in my view very legally questionable) CIA domestic influence operation on her behalf, Haspel has her work cut out for her. It’s unlikely that the “I was just following orders” line will do anything other than sink her nomination. If she has and claims to Senators, as former CIA Station Chief John Bennett has suggested, that she has learned the proper lessons from the episode (i.e., that torture is wrong, that she would refuse a Trump order to restart a new torture program, etc.), should she get the chance to lead the Agency? Would she actually serve as a check on Trump? On the latter question at least, I think the answer is a resounding “no.” The reason is that America’s first torture program got off the ground because lots of people in government–not just at the CIA–elected to not only go along with it, but facilitated it.

It took a pliant Secretary of State to not make waves about the “black sites” being set up and run outside the control of the local U.S. ambassadors, generally the person in charge of all U.S. government activities, programs, and relationships with the host nation. It took an eager group of lawyers in the Department of Justice’ Office of Legal Counsel (OLC) to write the opinions effectively redefining torture out of existence, thus providing a legal shield for anyone participating in the program. If there’s one issue that is more important than who is running the CIA, it is who is in charge at DoJ, and especially what kind of lawyers populate OLC. Just because the McCain-Feinstein anti-torture amendment is law does not mean the next John Yoo or Jay Bybee won’t try to redefine it for executive branch agencies charged with starting a new torture program. 

In the first torture program’s aftermath, a new and untested president insisted that Americans “….look forward as opposed to looking backward” on the U.S. torture program. Because the CIA is one of the federal agencies exempted from normal Office of Personnel Management rules (i.e., CIA is an excepted service), Obama didn’t actually need to have a federal prosecutor file charges to get rid of CIA personnel involved in the torture program. He could’ve fired them himself. He didn’t, and that’s one reason why Gina Haspel now has a shot to run the CIA. 

To recap: At the State Department, we now have a pliant Secretary who in the past has clearly stated his support for the first torture program, like President Trump. We have a Justice Department that is constantly under siege from a White House that clearly has a “loyalty test” it tries to impose on those working there. And we have a previous manager of America’s first torture program teed up to lead the federal agency that ran that same program. The conditions are certainly ripe for a Torture Redux. The question now is whether the Senate recognizes the danger and will act accordingly. We will know soon enough.

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