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TBR News June 5, 2018

Jun 05 2018

The Voice of the White House 

Washington, D.C. June 5, 2018:”James Watt discovered something that started the Industrial Revolution. He found that if you blocked the spout of a boiling tea kettle, the steam blew the top off the pot. Donald Trump is about to discover the same truth but in the political and economic forums. His irrational and hostile actions in a multitude of fields is creating a growing field of resentment and resistance in both the economic and political fields and soon enough, the top will blow off that pot, just like Watts’ one.”


The Table of Contents

  • Billionaire Koch brothers take on Trump over tariffs
  • U.S. lawmakers set bill seeking to control Trump on tariffs: key lawmaker
  • Donald Trump’s ‘absolute right to pardon myself’ does not exist
  • Trump lawyers in Summer Zervos case seek to block evidence on other women
  • ‘Apprentice’ contestant lawsuit will proceed as Trump seeks stay: NY judge
  • U.S. Airstrikes Violated International Law in “War of Annihilation” in Raqqa, Syria, Says Amnesty International
  • Targeted Killing, Donald Trump Style
  • Secrecy News
  • Putin signs Russian ‘counter-sanctions’ into law
  • No need for Europe to buy US gas at triple the price, will continue imports from Russia – Austria
  • In Taking Crimea, Putin Gains a Sea of Fuel Reserves
  • Amid ‘Russiagate’ Hysteria, What Are the Facts?
  • Minority Lawyers Hanging From Their Own Bootstraps

 Billionaire Koch brothers take on Trump over tariffs

June 5, 2018

BBC News

Powerful US billionaire brothers Charles and David Koch are funding a multi-million dollar campaign against President Donald Trump’s trade tariffs.

Three political groups backed by the brothers say they will use advertising, lobbying and grassroots campaigns to push the benefits of free trade.

The duo run Koch Industries, one of the world’s largest privately owned firms.

The move comes just days after Mr Trump imposed tariffs on steel and aluminium imports from the EU, Canada and Mexico.

On Tuesday, the company was told that David Koch, 78, was stepping down because of his deteriorating health.

In a letter, Charles Koch, 82, told employees he was “deeply saddened” about his brother’s departure, adding that “David has always been a fighter and is dealing with this challenge in the same way”.

The three Koch-backed groups launching the campaign against Mr Trump’s tariffs: Freedom Partners Chamber of Commerce, Americans for Prosperity and the LIBRE Initiative, are urging the president to lift the recent tariffs on aluminium and steel imports as well as the proposed tariffs on other imports from China.

Americans for Prosperity president Tim Phillips said the tariffs would “hamstring our full economic potential”.

“There are better ways to negotiate trade deals than by punishing American consumers and businesses with higher costs,” he added.

The campaign indicates the level of concern among business groups, typically Republican supporters, about the impact of the tariffs.

Leaders from the EU, Canada and Mexico have criticised the move and threatened retaliation, sparking fears of a trade war.

On Tuesday, Mexico imposed a wide range of new tariffs on US goods, including steel, pork, and bourbon.

Donald Trump has said the steel tariffs will protect US steelmakers, which he says are vital to national security.

Presentational grey line: Republican cash machine takes on Trump

Analysis by Anthony Zurcher, BBC Washington

The Koch network of political organisations has been a reliable cash machine for Republicans for more than a decade. When Donald Trump became the party’s nominee, the spigot to conservative candidates continued to flow – although the primary focus of the conservative brothers were congressional candidates and not the top of the ticket.

Since Mr Trump’s surprise victory, Charles and David Koch have sought common ground with the president, particularly on tax reform, but they continue to be far from ideological soul mates. Now, as the president bangs the drums of a trade war, the relations between the libertarian-leaning billionaires and the populist-nationalist president are becoming increasingly frayed.

It’s not full political warfare yet, however. The advertising and advocacy campaign proposed by the Koch groups tilts in the direction of “friendly advice” for the president, not hostile criticism. When paired with congressional efforts to curtail the president’s ability to enact new tariffs, however, and the stakes increase.

The Republican party has long been a welcoming home to free trade advocates, who point to the economic benefits of globalism and international competition. Mr Trump is trying to change that – but he’s picking a fight with some very deep-pocketed adversaries.

Who are the Koch brothers?

Charles and David Koch’s company – the second largest privately owned business in the US – has interests ranging from pipelines to paper towels.

According to Forbes Magazine, each of the men are worth about $60bn (£45bn), and are tied for eighth richest man in the US.

According to the Koch Industries website, they have more than 120,000 employees between all their businesses and subsidiaries.

They have previously put money into groups denying climate change and attacking unions and workers’ rights.

But they have also pushed for criminal justice reform and made large donations to the American Civil Liberties Union.

Last November, the brothers helped fund Meredith Corporation’s deal to buy US magazine publisher Time Inc.

But to many Americans, they are known more for their political activism than their corporate brands.

The brothers are political mega-donors who have spent millions of dollars on supporting conservative policies, particularly causes that seek to roll back regulations.

In 1980, David Koch ran as a vice-presidential candidate of the Libertarian Party.


U.S. lawmakers set bill seeking to control Trump on tariffs: key lawmaker

June 5, 2018

by Patricia Zengerle


WASHINGTON (Reuters) – Republican and Democratic U.S. senators plan to introduce as soon as Tuesday legislation that would force President Donald Trump to obtain Congress’ approval before imposing tariffs on national security grounds, a senior senator said on Tuesday.

Republican Senator Bob Corker, chairman of the Foreign Relations Committee, said legislation would be introduced on Tuesday or Wednesday that would pare back the president’s authority under Section 232 of the Trade Expansion Act of 1962.

Prompting criticism from many members of his own Republican party and business groups, Trump decided last month to open a trade investigation into whether auto imports had damaged the U.S. auto industry, which could lead to tariffs of up to 25 percent on “national security grounds.”

Trump had cited similar security concerns in March in imposing U.S. steel and aluminum duties.

Trump, who campaigned on a pledge to pursue better trade deals in order to save U.S. jobs, has pursued aggressive measures against trading partners from China to Canada, Mexico and U.S. allies in Europe.

This has worried some Republican lawmakers who strongly back principles of free trade, warning that Trump could trigger a trade war that would destabilize the economy and ultimately hurt American workers.

“We plan to offer either later today or in the morning a bill that would redefine the 1962 trade act, as it relates to 232, the national security component,” Corker told reporters at the U.S. Senate.

“What this would do is redefine that and say that the president would go through the same steps that he goes through, but at the end of the day, if he decides that he wants to put tariffs in place, Congress would have to approve those,” he said.

Corker declined to say how many other senators supported the legislation, but said there was “a big list” of both Republicans and Democrats.

He said the measure’s backers were considering offering the measure as an amendment to the National Defense Authorization Act, or NDAA, a defense policy bill that is one of the few pieces of legislation Congress passes every year.

The Senate is expected to consider its version of the NDAA as soon as this week.

That would increase its chances of becoming law, especially given likely resistance from Trump.

“My guess is it might not be so positive,” Corker said, when asked about the measure’s likely reception at the White House.

Reporting by Patricia Zengerle; Editing by James Dalgleish


Donald Trump’s ‘absolute right to pardon myself’ does not exist

Contrary to his claim, the US president likely does not have the right to pardon himself, according to constitutional experts. But the key question is whether Congress would let Donald Trump get away with it anyway.

June 4, 2018

by Michael Knigge


Can US President Donald Trump pardon himself?

In his comparatively short tenure, President Trump has already issued several pardons, most of them highly controversial due to their clear political nature. On Monday, Trump upped the ante again by declaring via Twitter that he possessed “the absolute right to pardon myself,” but added that he did not intend to use it. His assertion, Trump wrote, was based on the opinions of numerous legal scholars.

To check whether Trump’s assertion — which if true would essentially render him above the law — DW asked two legal scholars with expertise on constitutional power and the presidency to weigh in on the president’s far-reaching claim.

Short answer: It’s complicated

“There is a long standing view both in the justice department and perhaps more importantly in the courts and in our constitutional system that a president can’t place himself above the law,” said Michael Gerhardt, a constitutional law professor at the University of North Carolina whose book “The Federal Impeachment Process” is considered the standard work on the issue.

“I think it’s pretty clear both from what the founding generation anticipated and from the basic assumptions of the constitution that a self-pardon power just does not exist,” concurred law professor Peter Shane, who earlier had published a scholarly article titled “Presidents, Pardons and Prosecutors”.

While both legal experts argue that the US Constitution does not grant the president the power to pardon himself, they point out that such a pardon is not explicitly prohibited in the Constitution either.

In fact, the Constitution touches upon the presidential power to pardon only briefly when it states in Article 2, Section 2 that “he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

But since the Constitution does not explicitly rule out self-pardons and no president has ever claimed such a power, should President Trump try to pardon himself, the US legal and political system would be in uncharted territory.

“Technically speaking a president could attempt to pardon himself,” said Gerhardt. “But then the question becomes whether he can get away with that.”

Technical and political questions

And that question is a political one, since a legal challenge, according to the scholars, would likely not be successful, because the courts would probably decline to take up the issue.

That means that if President Trump pardoned himself, Congress would likely be the instrument to act as a check on what the legal experts would consider an unprecedented power grab.

“It is not implausible that members of Congress could regard a self-pardon as being an impeachable offense because it would be such a conspicuous attempt by the president to put himself above the law in an unconstitutional manner,” said Shane.

Should Trump try to pardon himself and Congress fail to act, it would set a “dangerous precedent,” said Gerhardt, because it would not only dramatically expand the power of President Trump, but every subsequent president.

But that the current Republican-led Congress would serve as a check on Trump is not clear at all given, that his approval rating among Republicans currently stands at 87 percent — higher than many of his GOP predecessors at this point of his time in office.

Why did Trump claim self-pardon power, if he does not want to use it?

Like with many things regarding this president, no one really knows why Trump amplified an issue that was brought up over the weekend by his new lawyer, former New York City Mayor Rudy Giuliani. The move could be viewed as a trial balloon to see how such a claim would go over with the public, the media and lawmakers — regardless of whether the president and his advisors are in fact contemplating asserting presidential self-pardoning power.

But what seems clear, said the experts, is that this move coupled with another claim Trump made on Twitter, namely that the appointment of special counsel Robert Mueller was unconstitutional, serves as another milestone in Trump’s continued campaign to delegitimize and undermine the Mueller probe into alleged Russian meddling in the 2016 presidential election. That second claim, noted Gerhardt and Shane, is also unfounded.

What’s more, said Shane, asserting a self-pardoning power is also part of Trump’s negotiating strategy. “In a way it is the equivalent to impose tariffs on the entire world and then see how far he pulls back from it. You stake out the most outrageous position and then anything else you do looks moderate.”


Trump lawyers in Summer Zervos case seek to block evidence on other women

Attorneys for restaurateur suing president for defamation want access to president’s discussions of other female accusers

June 5, 2018


Lawyers for Donald Trump argued in court on Tuesday that a former Apprentice TV show contestant should not be able to obtain information on the president’s discussions of other women during the election campaign who have also accused him of sexual misconduct.

The court hearing was the first since a Manhattan judge turned down Trump’s attempt to dismiss Summer Zervos’s defamation lawsuit or delay it until after his presidency. Zervos has sued the president for saying her sexual misconduct claims were lies.

“It’s a defamation case,” Trump’s lawyer Marc Kasowitz told the Manhattan state supreme court justice Jennifer Schecter. As for information about other women who are not part of the case, “those claims, that evidence … is irrelevant”, he said.

Mariann Wang, the lawyer representing Zervos, said outside court that the other women’s accusations were indeed relevant: “It’s a defamation case, so we are required to prove the falsity of the statements, and his statements include statements about other women.”

Zervos’s lawyers have issued subpoenas seeking a range of information about Trump’s behavior toward women, including any Apprentice material that features Zervos or Trump talking about her or discussing other female contestants in a sexual or inappropriate way.

They also have requested any Trump campaign records concerning Zervos, any other woman who has accused Trump of inappropriate touching, or the 2016 emergence of a 2005 Access Hollywood show recording of Trump talking about aggressively groping women.

Zervos’s lawyers also have subpoenaed security video, records of Trump’s stays and some other information from the Beverly Hills Hotel, where Zervos says Trump made unwelcome advances toward her.

While Trump’s lawyers emphasized that they are continuing to ask appeals courts to toss out or postpone the case, the judge set deadlines for a number of information-gathering steps – including depositions, or sworn questioning of both Trump and Zervos by 29 January 2019.

Zervos, a California restaurateur, appeared in 2006 on Trump’s former reality show, The Apprentice. She says he subjected her to unwanted kissing and groping when she sought career advice in 2007.

She was among more than a dozen women who came forward late in the 2016 presidential campaign to say that Trump had sexually harassed or assaulted them.

The Republican candidate and now president has denied all of the claims, saying they were “100% fabricated” and “totally false” and his accusers were “liars”.

He specifically contested Zervos’s allegations in a statement and retweeted a message that included her photo and described her claims as a “hoax”.

Zervos says his words hurt her reputation, harmed her business and led to threats against her. She is seeking a retraction, an apology and compensatory and punitive damages.

Trump’s attorneys have said his statements were true, and also that his remarks were “non-defamatory opinions” that came amid the heated public debate of a national political campaign.

They also argue that a sitting president cannot be sued in a state court.



‘Apprentice’ contestant lawsuit will proceed as Trump seeks stay: NY judge

June 5, 2018

by Brendan Pierson


NEW YORK (Reuters) – A former contestant on Donald Trump’s reality TV show “The Apprentice” may pursue her defamation lawsuit against the U.S. president, a New York state judge ruled on Tuesday, despite Trump’s effort to have an appeals court put it on hold.

he contestant, Summer Zervos, has claimed that Trump sexually harassed her and defamed her when he denied her allegations. Trump has argued that as a sitting president he is immune from the lawsuit and is seeking an order from New York’s highest court freezing the case.

At a hearing in Manhattan on Tuesday, Trump’s lawyer, Marc Kasowitz, argued that Zervos’ lawsuit should not go forward until the New York Court of Appeals, and if necessary, the U.S. Supreme Court, decides the issue.

“It’s merely seeking a determination at the highest level of competent jurisdiction as to the resolution of this very important constitutional issue,” Kasowitz told Manhattan Supreme Court Justice Jennifer Schecter.

Zervos accused Trump of subjecting her to unwanted kissing and groping after she sought career advice in 2007.

She came forward during the 2016 presidential campaign, and Trump called her allegations lies. He also retweeted a post calling Zervos’ claims a “hoax.”

Zervos is one of more than a dozen women who have publicly accused Trump of sexual misconduct. The White House has said the women are lying.

Kasowitz said at Tuesday’s hearing that he may seek to bar any other women who have accused Trump of sexual misconduct from testifying in the case, though he did not make a formal motion.

Zervos’ lawyer, Mariann Wang, said multiple judges had already rebuffed Trump’s argument and the case should be allowed to go ahead.

“We understand it should be orderly. We want to cooperate with defendant in good faith to figure out when and how to proceed,” she said.

Kasowitz and Wang both declined to comment after the hearing.

Reporting by Brendan Pierson in New York; Editing by Cynthia Osterman


U.S. Airstrikes Violated International Law in “War of Annihilation” in Raqqa, Syria, Says Amnesty International

June 5, 2018

by Murtaza Hussain

The Intercept

As the battle for Raqqa, Syria, raged last October, a family in the Harat al-Badu neighborhood bunkered down in their home in an attempt to survive the fighting between the U.S.-led coalition and Islamic State militants. Mohammed Fayad, a man in his 80s, had lived in the same home in Harat al-Badu for the past 50 years. When the fighting began, Fayad refused to flee the property that he had put a lifetime of labor into, remaining in the home with his daughters and other relatives. As coalition airstrikes began pounding the city, Fayad’s home also became a refuge for other terrified neighbors and their families seeking safety from the attacks.

Their safe haven would not last. On the night of October 11, a coalition airstrike hit Fayad’s home. As Ali Habib, a local man who had been sheltering his family with Fayad, later told researchers from Amnesty International:

I was sitting on a chair holding my little boy and the women were sitting on the floor, huddled together. … I felt the roof of the house collapse on me. I could not move and my little boy was not next to me anymore. … I called my wife, my mother, my daughter, but nobody answered. … I realized that everybody was dead. Then my boy, Mohammed, called out and that gave me the strength to free myself from the rubble and go to him. He had been thrown some 10 meters away by the explosion. We were both injured.

Sixteen people were killed in the strike that hit Fayad’s home, including Fayad, his three daughters, and 11 other relatives and acquaintances.

Fayad’s story is one of many contained in a new report by Amnesty International, an appraisal of the coalition’s four-month anti-ISIS campaign and its impact on civilians living in the city. The report, entitled “War of Annihilation,” builds on earlier work by Amnesty International and others that has found that U.S.-led airstrikes have caused massive civilian casualties, and it asks whether the destruction was necessary in order to defeat the Islamic State.

For this latest report, researchers spent two weeks visiting more than 40 locations where coalition strikes took place and interviewing over 110 witnesses and survivors of these attacks. Based on these findings, the report’s authors write that there exists “prima facie evidence that several Coalition attacks which killed and injured civilians violated international humanitarian law,” adding that “Coalition forces did not take adequate account of civilians present in the city and failed to take the precautions necessary to minimize harm to civilians and civilian objects.”

The exact number of civilians who died in coalition strikes on Raqqa last year remains unknown. The independent monitoring group Airwars has estimated that the death toll was at least 1,800, though the true figure may be considerably higher. During the height of the fighting last August, the United Nations issued a statement criticizing the coalition for the “unacceptable price” that its attacks were inflicting on civilians in the city. A U.N. humanitarian mission that traveled to the city this April said they were “shocked by the level of destruction, which exceeded anything they had ever seen before.”

The Amnesty International report documents numerous cases in which entire families were wiped out by coalition air and artillery strikes that hit residential areas of the city. While thousands fled the city during ISIS rule, and many more in advance of the coalition offensive, thousands also remained to protect their homes and property from looting by militants. These individuals found themselves caught in the crossfire between the coalition, its allied ground forces, and ISIS fighters seeking to use residents as human shields.

One airstrike documented in the report took place last June, in the working-class Jezra intersection area of western Raqqa. That strike killed eight members of the Othman Aswad family, including five children between the ages of 8 and 17. The family had been sheltering in a cellar on their property and were killed when a coalition attack leveled the building.

The battle to liberate Raqqa from the Islamic State resulted in the near-total destruction of the city, with an estimated 11,000 buildings destroyed or damaged during the fighting. The U.S. military admitted to the use of “annihilation tactics” during the campaign, and Defense Secretary James Mattis rationalized civilian casualties as a “fact of life.” But for many, the most galling aspect of the battle for Raqqa was that, after many months of fighting, the coalition ultimately allowed safe passage for ISIS fighters to leave the city. This negotiated withdrawal raised serious questions about whether the campaign needed to be waged as brutally as it was.

“Many people in Raqqa are asking why the coalition deemed it necessary to kill so many civilians and destroy the entire city, only to ultimately let the ISIS fighters it was targeting leave,” said Donatella Rovera, a researcher for Amnesty International who conducted field interviews in the city. “If the coalition had deemed it necessary to take certain risks that would lead to them killing civilians, but deemed those necessary risks to target ISIS fighters, why, in the end, did they decide to let the ISIS fighters withdraw from the city with impunity, taking their weapons along with them?”

A statement announcing the withdrawal last October attempted to distance the coalition from the agreement, attributing it to the efforts of local tribal leaders seeking to reduce civilian casualties.

Rovera says the level of destruction in the city, coupled with the unwillingness of the coalition to carry out serious investigations of its strikes — including site visits and interviews of the types that independent researchers have conducted — casts doubt on U.S. claims that they take pains to minimize civilian casualties during their operations. The concerns are not limited to Raqqa. U.S. authorities have justified airstrikes in other parts of Syria and Iraq that were alleged to have caused widespread civilian casualties, but in each case, there’s no evidence that the military actually interviewed witnesses and survivors.

“Because the coalition is unwilling to share details of operations and are also unwilling to conduct investigations in a serious manner, it’s impossible to evaluate what decisions caused this massive loss of civilian life and whether it was proportionate,” said Rovera.

“U.S. military officials travel in and around Raqqa, and they meet with local officials regularly,” she added. “There is nothing preventing them from carrying out on-the-ground site visits at places where their strikes took place and interviewing witnesses and survivors. That’s absolutely crucial and that’s what we’d like to see them to do.”


Targeted Killing, Donald Trump Style

The administration is bombing people all over the planet, under looser rules and in the shadows.

June 4, 2018

by Kelley Beaucar Vlahos

The American Conservative

When a Navy SEAL was killed and three others injured during a raid in Central Yemen in early 2017, Americans asked, “What are we doing there?” When three U.S. Army Special Forces troops were killed in an ambush while on patrol in Niger, folks back home said, “What are we doing there?”

While these two surprise attacks by suspected al-Qaeda and ISIS fighters on the ground raised important questions about America’s military presence in countries where we haven’t declared war, as usual the queries and public outrage failed to illuminate the iceberg beneath the surface. U.S. military activity—in particular, airstrikes and raids in the Middle East and Africa, not to mention Afghanistan—has not only accelerated under the Trump administration, but targeted killing campaigns are reportedly operating under fewer constraints and with less transparency than even under the notoriously secretive Obama administration.

In short, there’s a lot of kinetic action going on that the American public doesn’t know about—at least until something awful happens or officials are forced to show their cards, and even then, they will be holding most of the deck under the table.

Earlier this year, investigative journalist Nick Turse, who U.S. African Command blacklisted after claiming he was not “legitimate,” reported that the U.S. has Special Forces operating in 149 countries on the planet—a 150 percent increase over the George W. Bush years. But what about the skies? Of this we have only troubling glimpses. According to the Bureau of Investigative Journalism, the Trump administration launched over 160 strikes in Yemen and Somalia in 2017—that’s 100 percent and 30 percent more, respectively, than the drone-loving Obama administration launched the year before. The attacks in Afghanistan as of January 1 were reaching the same levels as the 2009-2010 “surge,” and we all know how well that’s working out.

Since January, the Bureau has reported 27 lethal strikes in Yemen, 14 in Somalia, and upwards of 50 strikes in Afghanistan during the same time period.

To put it into more context, the Obama administration conducted 563 covert strikes in Pakistan, Somalia, and Yemen during its two terms, compared to 57 strikes under Bush. Obama only admitted to between 64 and 116 civilian deaths during that time, though the bureau said it was likely 380 to 801 times higher than that.

But from the current administration, near-silence on all of this. On Thursday, the Department of Defense issued a report to Congress mandated under the 2017 National Defense Authorization Act (NDAA). The DoD was supposed to list each strike—time, date, and place—that was confirmed (or reasonably suspected) to have resulted in a civilian casualty, along with the number of casualties, both civilian and combatant, in 2017. The report was 30 days late and, not surprisingly, fell terribly short of the requirements.

What it did reveal is that out of 10,000 total military strikes in 2017 (typically by drone, AC-130 gunships, missiles, and fighter-bombers), the DoD could confirm approximately 499 civilians killed and approximately 169 injured. These took place during Operation Inherent Resolve (Iraq, Syria), Operation Freedom’s Sentinel (Afghanistan), and U.S. operations in Yemen, Somalia, and Libya. Supposedly, DoD has no reports of civilian casualties resulting from strikes in Libya and Somalia, though we know targeting has increased in both countries under Trump, and according to outside observers, there were upwards of 10 civilians killed in Somalia in 2017.

The report also says DoD has 450 additional reports of civilian casualties that it has not yet been able to assess, so the number of confirmed civilian deaths is likely much higher. Furthermore, the report neglects to identify the combatant death totals or put any of the casualties into context—date, time, place. Instead, they’re lumped together, rendering the totals nearly useless in terms of deciphering the costs in each country.

“The Department of Defense’s report on civilian casualties contains glaring gaps, including a blatant disregard for statutory requirements to provide the number of combatant casualties and to list all operations that were reasonably suspected to have resulted in civilian casualties,” said Rita Siemion, legal counsel for Human Rights First.

Equally frustrating, the congressional mandate only covers U.S. military strikes—we still have no idea how many CIA drone operations have been conducted in each of these countries under Trump. That information was supposed to be included in an annual White House report of all civilians and combatants killed in American counterterrorism airstrikes in 2017. The report was required under an executive order signed by Obama in 2016. Yet the May 1 deadline came and went, with administration officials suggesting that, according to a spokesman who talked with the Washington Post, “the executive order that requires the civilian casualty report is under review,” and could be “modified” or “rescinded.”

Furthermore, “the previous administration’s EO requirement for the public report was based on Obama CT (counterterrorism) policies, many of which were rescinded to allow the warfighter to better pursue the evolving threat.”

Let’s unpack that for a moment. The Trump administration has never publicly announced the new rules of engagement, but it was widely reported in September that the Obama-era President Policy Guidance (most certainly vague but the only rules we have to go on since he issued them in 2013) would be relaxed in two major ways. The first was that the targets of so-called “kill missions,” which under Obama would have to pose “a continuing and imminent threat” to Americans, would be expanded to include mere jihadist foot soldiers “with no special skills or leadership roles,” according to New York Times reporting. In other words, it would now include those who weren’t an imminent threat.

Second, drone attacks and ground raids would no longer go through high-level vetting. A critical piece—that strikes would proceed only if there was “near certainty” that civilians would not be harmed—remained in place (though neither administration has ever explained what the standards are for achieving that level of assurance).

“The Trump administration issued a new policy but they have neither released that policy itself or even a declassified fact sheet or summary of it—or even acknowledged that it exists,” Siemion told TAC in an interview last week. “We don’t even know if they are being applied.”

To make matters more complicated, these rules, if they exist, only ever applied to countries deemed outside the “area of active hostilities.” Otherwise all bets are off and the laws of war apply, which are much less constraining. The area of active hostilities include Afghanistan, Iraq, and Syria, and, as of last year, parts of Yemen and Somalia, too. And remember, the current AUMF (Authorization for Use of Military Force) allows the president to target any ISIS, al-Qaeda, or “associated forces” at any time, and he need not define publicly who those forces are or where they are being targeted.

Why any of this would keep the White House from releasing a body count under the executive order (which, by the way, only covers CT operations outside the area of active hostilities) by May 1, however, is not clear. Nevertheless, a spokesperson for the White House told the Washington Post that there “was no increase in civilian casualties in 2017,” which is kind of amazing. In Obama’s 2016 report, he acknowledged only one civilian death, an announcement widely panned by outside groups. Given the uptick in strikes in Yemen, Somalia, and Libya post-Obama, the idea that there would be only one civilian death among them seems fantastical. Unfortunately, with both administrations playing a shell game—inside-versus-outside the area of active hostilities, military versus CIA—as a way to hide and massage totals, we cannot be completely sure.

Which is right where they want us to be. Outside groups get caught up trying to count via open-source reports, only getting the word out in fits and starts to a public that is distracted by a 24-hour news cycle obsessed more with Stormy Daniels and Russia-gate than the fact that in places like Iraq and Syria, where we are not technically “at war,” there were nearly 30,000 U.S.-led coalition airstrikes over the last four years.

As we speak, according to reporter Rebecca Gordon, AFRICOM is building a new $110 million installation in the Nigerian town of Agadez to serve as a new drone base. “It will soon become the new centerpiece in an undeclared U.S. war in West Africa,” Gordon says. “Even before the base opens, armed U.S. drones are already flying from Niger’s capital, Niamey, having received permission from the Nigerian government to do so last November.”

The worst of it all is, after three administrations setting, executing, and accelerating targeted killing programs of this nature, there has never been a real conversation about whether or not they work. Imagine that: tens of thousands of airstrikes, thousands of lives lost, and no honest assessment of the success, or blowback, whatever it might be. Official Washington likes to debate what “CT policy” should be, but not surprisingly, no one ever suggests that the idea of targeted killing should be reexamined entirely.

“We’ve been doing it, and keep on doing it without taking that step back to ask whether it’s effective, not just because we are spending billions of dollars, and Americans have lost their lives and all sorts of other people have lost their lives as well,” said Siemion, “But that there is a possibility it’s counterproductive and we are paying this very high price for something that is actually making the threat worse.”

Considering Trump, who has issued notoriously tone-deaf statements about targeting terrorists’ families and wondering aloud why a drone operator “waited” before dropping a bomb on a Syrian target, there’s not much hope such an examination will come soon. “So by default,” lamented Siemion, “everything’s on autopilot.”


Secrecy News

From the FAS Project on Government Secrecy

Volume 2018, Issue No. 38

June 1, 2018


The U.S. Department of Defense spent $11.3 billion on purchases abroad in 2015, including $1.6 billion worth of goods or services from the United Arab Emirates, according to a newly released DoD report to Congress.

The majority of foreign purchases by DoD were for fuel, services, construction and subsistence. The DoD report breaks down the total that was spent abroad by DoD in each of several dozen foreign countries.

See Purchases from Foreign Entities in FY2015, DoD report to Congress, June 2016 (released under FOIA May 2018).

DoD reports to Congress are often a significant source of official information and perspective on various aspects of U.S. military policy.

Most recently, DoD produced its required report on Civilian Casualties in Connection With United States Military Operations in 2017, June 1, 2018.

A few months ago, the Pentagon submitted an Interim Report on Organizational and Management Structure for the National Security Space Components of the Department of Defense, March 2018.

A report last year addressed Department of Defense Infrastructure Capacity, October 2017.

Public access to such reports is sporadic and often delayed. A bill pending in the House of Representatives would require the Government Publishing Office to post all such (unclassified) reports online. See Access to Congressionally Mandated Reports Act (HR 4631).


Iran’s central bank has filed a petition with the U.S. Supreme Court seeking to overturn a lower court ruling that would have transferred Iranian funds to the U.S. and made them potentially available for awards to victims of terrorism.

At issue is the legal interpretation of the Foreign Sovereign Immunities Act. A new brief from the Congressional Research Service provides background on the matter. See Iran’s Central Bank Asks Supreme Court to Consider Whether the Bank’s Assets Abroad are Immune from Attachment to Satisfy Terror Judgments by Jennifer K. Elsea, CRS Legal Sidebar, May 30, 2018.

Other new publications from the Congressional Research Service include the following.

Sidewalks, Streets, and Tweets: Is Twitter a Public Forum?, CRS Legal Sidebar, May 30, 2018

(Robo)Call Me Maybe: Robocalls to Wireless Phones Under the Telephone Consumer Protection Act, CRS Legal Sidebar, May 29, 2018

The Role of the Office of National Drug Control Policy (ONDCP), CRS Insight, June 1, 2018

The House Journal: Origin, Purpose, and Approval, May 31, 2018

Federal Grants and Loans for State and Local Emergency Communications Projects: Frequently Asked Questions, June 1, 2018

Federal Aviation Administration (FAA) Reauthorization Issues and Debate in the 115th Congress, May 29, 2018

U.S. Department of State Personnel: Background and Selected Issues for Congress, May 18, 2018

Putin signs Russian ‘counter-sanctions’ into law

June 4, 2018


MOSCOW (Reuters) – Russian President Vladimir Putin on Monday signed into law counter-sanctions legislation that was drawn up by lawmakers in response to U.S. sanctions imposed on Russia in April.

The legislation gives the president, among other things, the power to sever ties with unfriendly countries, and to ban trade of goods with those countries.

However, it has been watered down since it was first conceived by lawmakers in response to the new round of U.S. sanctions on Russian businesses.

Lawmakers initially proposed large-scale restrictions on U.S. goods and services, ranging from food and alcohol to medicine and consulting services.

The law was one of two items of legislation. In the second, lawmakers debated making it a crime punishable by jail for a Russian citizen to comply with the U.S. sanctions.

Russian and foreign business lobbies had said any such law would effectively force firms to choose between doing business with Russia and having dealings with the rest of the world.

Last month Putin said any retaliation against western sanctions must not hurt the Russian economy or partners that do business in Russia.

Reporting by Andrey Ostroukh; Writing by Tom Balmforth; Editing by Toby Chopra and David Stamp


No need for Europe to buy US gas at triple the price, will continue imports from Russia – Austria

June 5, 2018


The US is force-feeding Europe its liquified natural gas, which is three times more expensive that buying it from Russia, Austrian President Alexander Van der Bellen said after signing a gas-supply contract with Moscow until 2040.

While US politicians are accusing Europe of being dependent on Russian gas, they forget that “American liquefied gas is two or three times more expensive than Russian gas. Under such circumstances, it makes little sense in purely economic terms to replace Russian gas with American LNG,” Van der Bellen said at a press conference after meeting Russian President Vladimir Putin in Vienna on Tuesday.

Putin noted that Austria is a major transportation hub for Russian gas being exported to Europe. “Austria has become one of the key, if not to say, one of the most important units of Russian gas transportation to Western Europe and plays an important role in ensuring the energy security of the entire European continent,” Putin said.

He recalled that Russia has exported more than 200 billion cubic meters of natural gas to Austria in the past 50 years. After the meeting, Russia’s Gazprom and Austria’s OMV signed a gas supply contract until 2040.

Before Putin’s trip to Austria, Austrian Chancellor Sebastian Kurz also spoke about the importance of Russian gas shipments to his country. “I would like to note that fruitful cooperation of the two very important companies – OMV and Gazprom – which seems to me extremely beneficial for both sides,” the chancellor told TASS news agency in an interview.

OMV and Gazprom are now implementing the Nord Stream 2 pipeline, which seeks to double the capacity of the existing Nord Stream. The project has faced opposition from the US, which is seeking to ramp up LNG exports to Europe.


In Taking Crimea, Putin Gains a Sea of Fuel Reserves

May 17, 2014

by William J. Broad

New York Times

When Russia seized Crimea in March, it acquired not just the Crimean landmass but also a maritime zone more than three times its size with the rights to underwater resources potentially worth trillions of dollars.

Russia portrayed the takeover as reclamation of its rightful territory, drawing no attention to the oil and gas rush that had recently been heating up in the Black Sea. But the move also extended Russia’s maritime boundaries, quietly giving Russia dominion over vast oil and gas reserves while dealing a crippling blow to Ukraine’s hopes for energy independence.

Russia did so under an international accord that gives nations sovereignty over areas up to 230 miles from their shorelines. It had tried, unsuccessfully, to gain access to energy resources in the same territory in a pact with Ukraine less than two years earlier.

“It’s a big deal,” said Carol R. Saivetz, a Eurasian expert in the Security Studies Program of the Massachusetts Institute of Technology. “It deprives Ukraine of the possibility of developing these resources and gives them to Russia. It makes Ukraine more vulnerable to Russian pressure.”

Gilles Lericolais, the director of European and international affairs at France’s state oceanographic group, called Russia’s annexation of Crimea “so obvious” as a play for offshore riches.

In Moscow, a spokesman for President Vladimir V. Putin said there was “no connection” between the annexation and energy resources, adding that Russia did not even care about the oil and gas. “Compared to all the potential Russia has got, there was no interest there,” the spokesman, Dmitry Peskov, said Saturday.

Exxon Mobil, Royal Dutch Shell and other major oil companies have already explored the Black Sea, and some petroleum analysts say its potential may rival that of the North Sea. That rush, which began in the 1970s, lifted the economies of Britain, Norway and other European countries.

William B. F. Ryan, a marine geologist at the Lamont-Doherty Earth Observatory of Columbia University, said Russia’s Black Sea acquisition gave it what are potentially “the best” of that body’s deep oil reserves.

Oil analysts said that mounting economic sanctions could slow Russia’s exploitation of its Black and Azov Sea annexations by reducing access to Western financing and technology. But they noted that Russia had already taken over the Crimean arm of Ukraine’s national gas company, instantly giving Russia exploratory gear on the Black Sea.

“Russia’s in a mood to behave aggressively,” said Vladimir Socor, a senior fellow at the Jamestown Foundation, a research group in Washington that follows Eurasian affairs. “It’s already seized two drilling rigs.”

The global hunt for fossil fuels has increasingly gone offshore, to places like the Atlantic Ocean off Brazil, the Gulf of Mexico and the South China Sea. Hundreds of oil rigs dot the Caspian, a few hundred miles east of the Black Sea.

Nations divide up the world’s potentially lucrative waters according to guidelines set forth by the 1982 Law of the Sea Treaty. The agreement lets coastal nations claim what are known as exclusive economic zones that can extend up to 200 nautical miles (or 230 statute miles) from their shores. Inside these zones, countries can explore, exploit, conserve and manage deep natural resources, living and nonliving.

The countries with shores along the Black Sea have long seen its floor as a potential energy source, mainly because of modest oil successes in shallow waters.

Just over two years ago, the prospects for huge payoffs soared when a giant ship drilling through deep bedrock off Romania found a large gas field in waters more than half a mile deep.

Russia moved fast.

In April 2012, Mr. Putin, then Russia’s prime minister, presided over the signing of an accord with Eni, the Italian energy giant, to explore Russia’s economic zone in the northeastern Black Sea. Dr. Ryan of Columbia estimated that the size of the zone before the Crimean annexation was roughly 26,000 square miles, about the size of Lithuania.

“I want to assure you that the Russian government will do everything to support projects of this kind,” Mr. Putin said at the signing, according to Russia’s Interfax news agency.

A month later, oil exploration specialists at a European petroleum conference made a lengthy presentation, the title of which asked: “Is the Black Sea the Next North Sea?” The paper cited geological studies that judged the waters off Ukraine as having “tremendous exploration potential” but saw the Russian zone as less attractive.

In August 2012, Ukraine announced an accord with an Exxon-led group to extract oil and gas from the depths of Ukraine’s Black Sea waters. The Exxon team had outbid Lukoil, a Russian company. Ukraine’s state geology bureau said development of the field would cost up to $12 billion.

“The Black Sea Hots Up,” read a 2013 headline in GEO ExPro, an industry magazine published in Britain. “Elevated levels of activity have become apparent throughout the Black Sea region,” the article said, “particularly in deepwater.”

When Russia seized the Crimean Peninsula from Ukraine on March 18, it issued a treaty of annexation between the newly declared Republic of Crimea and the Russian Federation. Buried in the document — in Article 4, Section 3 — a single bland sentence said international law would govern the drawing of boundaries through the adjacent Black and Azov Seas.

Dr. Ryan estimates that the newly claimed maritime zone around Crimea added about 36,000 square miles to Russia’s existing holdings. The addition is more than three times the size of the Crimean landmass, and about the size of Maine.

At the time, few observers noted Russia’s annexation of Crimea in those terms. An exception was Romania, whose Black Sea zone had been adjacent to Ukraine’s before Russia stepped in.

“Romania and Russia will be neighbors,” Romania Libera, a newspaper in Bucharest, observed on March 24. The article’s headline said the new maritime border could become a “potential source of conflict.”

Many nations have challenged Russia’s seizing of Crimea and thus the legality of its Black and Azov Sea claims. But the Romanian newspaper quoted analysts as judging that the other countries bordering the Black Sea — Georgia, Turkey, Bulgaria and Romania — would tacitly recognize the annexation “in order to avoid an open conflict.”

Most immediately, analysts say, Russia’s seizing may alter the route along which the South Stream pipeline would be built, saving Russia money, time and engineering challenges. The planned pipeline, meant to run through the deepest parts of the Black Sea, is to pump Russian gas to Europe.

Originally, to avoid Ukraine’s maritime zone, Russia drew the route for the costly pipeline in a circuitous jog southward through Turkey’s waters. But now it can take a far more direct path through its newly acquired Black Sea territory, if the project moves forward. The Ukraine crisis has thrown its future into doubt.

As for oil extraction in the newly claimed maritime zones, companies say their old deals with Ukraine are in limbo, and analysts say new contracts are unlikely to be signed anytime soon, given the continuing turmoil in the region and the United States’ efforts to ratchet up pressure on Russia.

“There are huge issues at stake,” noted Dr. Saivetz of M.I.T. “I can’t see them jumping into new deals right now.”

The United States is using its wherewithal to block Russian moves in the maritime zones. Last month, it imposed trade restrictions on Chernomorneftegaz, the breakaway Crimean arm of Ukraine’s national gas company.

Eric L. Hirschhorn, the United States under secretary of commerce for industry and security, said sanctions against the Crimean business would send “a strong message” of condemnation for Russia’s “incursion into Ukraine and expropriation of Ukrainian assets.”

Alexandra Odynova contributed reporting from Moscow.


Amid ‘Russiagate’ Hysteria, What Are the Facts?

We must end this Russophobic insanity.

June 1, 2018

by Jack F. Matlock Jr.

The Nation

“Whom the gods would destroy, they first make mad.”

That saying—often misattributed to Euripides—comes to mind most mornings when I pick up The New York Times and read the latest “Russiagate” headlines, which are frequently featured across two or three columns on the front page above the fold. This is an almost daily reminder of the hysteria that dominates our Congress and much of our media.

A glaring example, just one of many from recent months, arrived at my door on February 17. My outrage spiked when I opened to the Times’ lead editorial: “Stop Letting the Russians Get Away With It, Mr. Trump.” I had to ask myself: “Did the Times’ editors perform even the rudiments of due diligence before they climbed on their high horse in this long editorial, which excoriated ‘Russia’ (not individual Russians) for ‘interference’ in the election and demanded increased sanctions against Russia ‘to protect American democracy’?”

It had never occurred to me that our admittedly dysfunctional political system is so weak, undeveloped, or diseased that inept Internet trolls could damage it. If that is the case, we better look at a lot of other countries as well, not just Russia!

The New York Times, of course, is not the only offender. Its editorial attitude has been duplicated or exaggerated by most other media outlets in the United States, electronic and print. Unless there is a mass shooting in progress, it can be hard to find a discussion of anything else on CNN. Increasingly, both in Congress and in our media, it has been accepted as a fact that “Russia” interfered in the 2016 election.

So what are the facts?

  1. It is a fact that some Russians paid people to act as online trolls and bought advertisements on Facebook during and after the 2016 presidential campaign. Most of these were taken from elsewhere, and they comprised a tiny fraction of all the advertisements purchased on Facebook during this period. This continued after the election and included organizing a demonstration against President-elect Trump.
  2. It is a fact that e-mails in the memory of the Democratic National Committee’s computer were furnished to Wikileaks. The US intelligence agencies that issued the January 2017 report were confident that Russians hacked the e-mails and supplied them to Wikileaks, but offered no evidence to substantiate their claim. Even if one accepts that Russians were the perpetrators, however, the e-mails were genuine, as the US intelligence report certified. I have always thought that the truth was supposed to make us free, not degrade our democracy.
  3. It is a fact that the Russian government established a sophisticated television service (RT) that purveyed entertainment, news, and—yes—propaganda to foreign audiences, including those in the United States. Its audience is several magnitudes smaller than that of Fox News. Basically, its task is to picture Russia in a more favorable light than has been available in Western media. There has been no analysis of its effect, if any, on voting in the United States. The January 2017 US intelligence report states at the outset, “We did not make an assessment of the impact that Russian activities had on the outcome of the 2016 election.” Nevertheless, that report has been cited repeatedly by politicians and the media as having done so.
  4. It is a fact that many senior Russian officials (though not all, by any means) expressed a preference for Trump’s candidacy. After all, Secretary of State Hillary Clinton had compared President Putin to Hitler and had urged more active US military intervention abroad, while Trump had said it would be better to cooperate with Russia than to treat it as an enemy. It should not require the judgment of professional analysts to understand why many Russians would find Trump’s statements more congenial than Clinton’s. On a personal level, most of my Russian friends and contacts were dubious of Trump, but all resented Clinton’s Russophobic tone, as well as statements made by Obama from 2014 onward. They considered Obama’s public comment that “Russia doesn’t make anything” a gratuitous insult (which it was), and were alarmed by Clinton’s expressed desire to provide additional military support to the “moderates” in Syria. But the average Russian, and certainly the typical Putin administration official, understood Trump’s comments as favoring improved relations, which they definitely favored.
  5. There is no evidence that Russian leaders thought Trump would win or that they could have a direct influence on the outcome. This is an allegation that has not been substantiated. The January 2017 report from the intelligence community actually states that Russian leaders, like most others, thought Clinton would be elected.
  6. There is no evidence that Russian activities had any tangible impact on the outcome of the election. Nobody seems to have done even a superficial study of the effect Russian actions actually had on the vote. The intelligence-community report, however, states explicitly that “the types of systems we observed Russian actors targeting or compromising are not involved in vote tallying.” Also both former FBI director James Comey and NSA director Mike Rogers have testified that there is no proof Russian activities had an effect on the vote count.
  7. There is also no evidence that there was direct coordination between the Trump campaign (hardly a well-organized effort) and Russian officials. The indictments brought by the special prosecutor so far are either for lying to the FBI or for offenses unrelated to the campaign such as money laundering or not registering as a foreign agent.

So, what is the most important fact regarding the 2016 US presidential election?

The most important fact, obscured in Russiagate hysteria, is that Americans elected Trump under the terms set forth in the Constitution. Americans created the Electoral College, which allows a candidate with a minority of popular votes to become president. Americans were those who gerrymandered electoral districts to rig them in favor of a given political party. The Supreme Court issued the infamous Citizens United decision that allows corporate financing of candidates for political office. (Hey, money talks and exercises freedom of speech; corporations are people!) Americans created a Senate that is anything but democratic, since it gives disproportionate representation to states with relatively small populations. It was American senators who established non-democratic procedures that allow minorities, even sometimes single senators, to block legislation or confirmation of appointments.

Now, that does not mean that Trump’s presidency is good for the country, just because Americans elected him. In my opinion, the 2016 presidential and congressional elections pose an imminent danger to the republic. They have created potential disasters that will severely try the checks and balances built into our Constitution. This is especially true since both houses of Congress are controlled by the Republican Party, which itself represents fewer voters than the opposition party.

I did not personally vote for Trump, but I consider the charges that Russian actions interfered in the election, or—for that matter—damaged the quality of our democracy ludicrous, pathetic, and shameful.

“Ludicrous” because there is no logical reason to think that anything that the Russians did affected how people voted. In the past, when Soviet leaders tried to influence American elections, it backfired—as foreign interference usually does everywhere. In 1984, Yuri Andropov, the Soviet leader then, made preventing Ronald Reagan’s reelection the second-most-important task of the KGB. (The first was to detect US plans for a nuclear strike on the Soviet Union.) Everything the Soviets did—in painting Reagan out to be a warmonger while Andropov refused to negotiate on nuclear weapons—helped Reagan win 49 out of 50 states.

“Pathetic” because it is clear that the Democratic Party lost the election. Yes, it won the popular vote, but presidents are not elected by popular vote. To blame someone else for one’s own mistakes is a pathetic case of self-deception.

“Shameful” because it is an evasion of responsibility. It prevents the Democrats, and those Republicans who want responsible, fact-based government in Washington, from concentrating on practical ways to reduce the threat the Trump presidency poses to our

political values and even to our future existence. After all, Trump would not be president if the Republican Party had not nominated him. He also is most unlikely to have won the Electoral College if the Democrats had nominated someone—almost anyone—other than the candidate they chose, or if that candidate had run a more competent campaign. I don’t argue that any of this was fair, or rational, but then who is so naive as to assume that American politics are either fair or rational?

Instead of facing the facts and coping with the current reality, the Russiagate promoters, in both the government and the media, are diverting our attention from the real threats.

I should add “dangerous” to those three adjectives. “Dangerous” because making an enemy of Russia, the other nuclear superpower—yes, there are still two—comes as close to political insanity as anything I can think of. Denying global warming may rank up there too in the long run, but only nuclear weapons pose, by their very existence in the quantities that are on station in Russia and the United States, an immediate threat to mankind—not just to the United States and Russia and not just to “civilization.” The sad, frequently forgotten fact is that, since the creation of nuclear weapons, mankind has the capacity to destroy itself and join other extinct species.

In their first meeting, President Ronald Reagan and then General Secretary Mikhail Gorbachev agreed that “a nuclear war cannot be won and must never be fought.” Both believed that simple and obvious truth and their conviction enabled them to set both countries on a course that ended the Cold War. We should think hard to determine how and why that simple and obvious truth has been ignored of late by the governments of both countries.

We must desist from our current Russophobic insanity and encourage Presidents Trump and Putin to restore cooperation in issues of nuclear safety, non-proliferation, control of nuclear materials, and nuclear-arms reduction. This is in the vital interest of both the United States and Russia. That is the central issue on which sane governments, and sane publics, would focus their attention.


Minority Lawyers Hanging From Their Own Bootstraps

How Law Schools Fail Those Who Seek Justice

June 5, 2018

by Erin L. Thompson


Law school applications are up this year in what some are calling a “Trump Bump,” since around a third of applicants were inspired to apply by Trump’s election. Nearly half of them identify themselves as members of a minority group. They’ve seen lawyers fighting Trump administration policies that discriminate against their communities and want to do the same. If these minority applicants succeed, they could change the balance of power in American society. If they fail, they will find themselves crushed under a lifetime of debt. But few are aware that they are taking this enormous gamble in a rigged game.

On average, minority students end up in lower-ranked law schools, which they pay more to attend than white students, resulting in higher debt burdens. Minority law graduates have lower bar exam passage rates, employment rates, and income levels. Given the intense competition for paid social justice positions, few of them will end up in careers where they can support themselves while fighting for the ideals that brought them to law school in the first place.

Legal education has failed and will continue to fail minorities. This shouldn’t be surprising, since the entire American system of restricting admission to the practice of law has long been designed, explicitly or implicitly, to exclude minorities. Nowadays, of course, minorities are no longer simply prohibited from entering law school. Instead, the system loads many of them with staggering debt before killing their hopes, leaving them hanging from the very bootstraps they had hoped to use to rise.

Attack on the Night Schools

If you want to practice law today, you minimally have to graduate from college, then law school, and then pass a state bar examination. This is a far cry from 1851, when, in the grip of the anti-elitist ideals of Jacksonian democracy, Indiana declared that all of its citizens were entitled to practice law, the only requirement being “good moral character.” Not until 1932 did that state concede that its lawyers might need some other training — and this wasn’t as unusual as it might seem. Before the turn of the twentieth century, the vast majority of America’s lawyers had never attended the few law schools that then existed. (Most of them had not gone to college and some hadn’t even completed high school.) Instead, like Abe Lincoln, most apprenticed in a lawyer’s office and read up on state laws before passing a short oral bar exam. Apprentices had to persuade a lawyer to take them on, had to pay him, and could not perform other work to support themselves while apprenticing.

The early twentieth century saw an explosion of new law schools founded to serve the needs of those for whom such conditions were daunting, especially minorities, recent immigrants, and women. Generally located in urban centers, those schools charged low tuition and were staffed with practicing lawyers who taught after working hours, so that their students could earn a living.

There was widespread horror at the prospect of night schools allowing a horde of undesirables to become lawyers who might charge cheaper fees and so undercut mainstream attorneys. As a result, the Association of American Law Schools, representing the more expensive, university-affiliated institutions, banded together with the American Bar Association (ABA) to campaign for states to raise the requirements for aspiring lawyers. The target: keeping minorities out of the profession.

Shortly after World War I, for instance, a New York lawyer argued that it was “absolutely necessary” to require law school applicants to have attended college or the country wouldn’t have lawyers “able to read, write, and talk the English language — not Bohemian, not Gaelic, not Yiddish.” Similarly, at a 1929 ABA meeting, a member claimed that the majority of complaints received by the Philadelphia Bar Association concerned “Russian Jew boys” and insisted that “these fellows that come up out of the gutter” be required to complete a college education to “absorb the American ideals.”

The process of restricting admission to the bar took decades. In 1923, although most aspiring lawyers attended law school, no state required them to do so. Only in the post-World War II years did all but a handful of states insist upon a law degree for everyone who wanted to practice in the legal system. Meanwhile, the ABA would be appointed the accrediting body for law schools in almost all jurisdictions and the cheaper, more accessible night schools would either close up shop or transform themselves into elite clones as best they could — and raise their tuitions to match.

Why do Minority Law Students Pay More for Worse Educations?

In 1968, the year Martin Luther King, Jr., was assassinated, only 1% of American lawyers were black. Other minority groups had so few lawyers that the numbers weren’t even tallied. Since then, those figures have steadily increased, but the percentage of minority students in the elite law schools that offer the best chances for a prestigious, well-compensated career remains far lower than at non-elite ones. (The same has been true of women: while, in 2016, female law students outnumbered males for the first time, only six of the top 20 law schools had at least half-female student bodies.)

The reason: Law School Admission Test (LSAT) scores. Minority and underprivileged students have consistently had lower average LSATs than white and wealthier test takers, even when other ways of measuring their abilities and achievements did not show a difference. There has been much debate about the causes of this score gap. The expense of the preparation courses that teach LSAT-taking skills is certainly one reason. Others suggest that the test itself has hidden racial biases, since it calls for analyses that might be performed differently by those with different backgrounds. (Or perhaps not so hidden: as late as 1986, LSAT takers had to answer questions about a reading passage set in a country where slavery was legal, featuring slaves who insisted that they found their condition “extremely pleasant.”)

The LSAT score gap means that American law schools have developed a kind of educational apartheid: minorities disproportionately end up at lesser law schools. In 2017, for instance, Arizona Summit Law School topped the charts as America’s most diverse law school, while also earning another record: worst bar passage rate. Only around 27% of its graduates passed the bar exam on their first try and only 34% landed long-term, full-time legal jobs.

Minority students generally pay more for the privilege of going to these lesser schools, again thanks to the LSAT. Schools offer merit scholarships to students with high scores in order to increase their rankings. Lower-scoring students pay full sticker price and so, in essence, fund those scholarships, which tend to go to a wealthier, less diverse group of students in what some critics have dubbed a reverse Robin Hood effect.

Exploitation Disguised as Opportunity

Elie Mystal, an iconoclastic legal pundit, counsels law school hopefuls that of America’s more than 200 law schools, “there are maybe 20 schools that are worth paying full price for. There are maybe another 20 schools that are worth it if you are getting reduced, in-state tuition. And that’s being extremely generous.” So why do so many minority students end up at lesser schools that offer them a significantly lower chance of success? In his recent book Law Mart: Justice, Access, and For-Profit Law Schools, law professor Riaz Tejani dissects the way low-ranked law schools market themselves to students with low LSAT scores by promising to provide “access to justice.” Accepting students who will largely fail to get legal jobs in the name of allowing them the opportunity to access a legal education is, Tejani claims, symptomatic of a neoliberal model of legal education, which offers “social inclusion” at a steep price “devoid of social protectionism.”

The profits to be made from marginal students are significant, since tuition hardly varies between law schools regardless of their quality. Indeed, in 2011, New York Law School, which ranked in the lowest tier of such institutions, was charging more than Harvard Law School. The 2010 graduating class of the Western Michigan University Cooley Law School, another bottom-tier institution, had a total debt of more than $87 million. Nearly all of this borrowing was from federal loan programs and, given Cooley’s dismal employment statistics, it’s likely that taxpayers will have to cover the significant portion that will never be repaid. Despite such statistics, the class Cooley enrolled in 2017 was the third largest in the country, behind only Georgetown and Harvard.

The average graduate will have taken on more than $100,000 in debt (the amount a woman crowd-sourced last year to pay off what she owed after law school in order to achieve her new goal of becoming a cloistered nun). Such a debt is a far heavier burden for minorities, since the lists of schools with the highest proportion of them and of those with the lowest percentage of graduates employed in full-time legal jobs show considerable overlap. For example, in 2015, Charlotte School of Law had the fourth highest percentage of African-American students among law schools (36%) and also the highest percentage of 2016 graduates who were either unemployed, employed in temporary or part-time work, or working in nonprofessional jobs (59.12%). The few minority lawyers who obtain high-paying legal jobs have overwhelmingly gone to a top law school. Three-quarters of current black law firm partners went to one of the top 12 law schools, and nearly half went to either Harvard or Yale.

Mind the Justice Gap

In a book widely considered to have launched the ongoing debate about the future of law schools, Brian Tamanaha notes that “perversely, the United States has an oversupply of law graduates at the same time that a significant proportion of the populace — the poor and lower middle class — go without legal assistance.” This “justice gap” is, in part, the result of the high cost of legal education. Even those who went to law school to help members of their community regularly find themselves unable to afford to do so — if they want to meet their monthly loan payments.

Access to affordable legal services offers a small but crucial boost to families struggling against poverty and discrimination. As studies like Matthew Desmond’s Evicted: Poverty and Profit in the American City demonstrate, those who have no choice but to represent themselves face large financial, social, and emotional costs in the overwhelmingly likely event that they lose in housing court or when trying to obtain debt relief or pre-trial release or a restraining order. Society as a whole then pays the price for the associated loss of productivity and the cost of baseless or useless incarceration. Affordable representation can quite literally be a matter of life and death. As Supreme Court Justice Ruth Bader Ginsburg has pointed out, “People who are well represented at trial do not get the death penalty.”

There have been a number of proposals to lower the cost of becoming a lawyer, including by making law school shorter, returning to an apprenticeship model, or establishing programs to train “legal technicians” in limited areas of the law. But while you could fight evictions effectively with cheaper and briefer legal training, you’ll never become a judge that way. For such positions, the broad, theory-based education offered by law schools is a virtual necessity. Critics, in fact, worry that a return to shorter, lower-cost programs would harden what already looks like educational apartheid. Minority applicants could be dumped into the equivalent of vocational programs and left without hope of rising to the sorts of positions of power in which change might begin to be implemented within the legal system.

Solutions are not simple, but change is clearly needed in areas ranging from admissions standards and law school coursework to the nature of the bar exam itself — and that undoubtedly only begins to touch on the deeper biases embedded in the system. In his prescient 1977 book, Unequal Justice: Lawyers and Social Change in Modern America, historian Jerold Auerbach argued that biases in the legal profession have “particularly serious consequences” in a country where we depend on lawyers to interpret and implement the principle of equal justice under the law. The difference that the rise in the number of female judges has made is already evident. For one thing, male judges are 10% more likely than female ones to rule against sex-discrimination claims.

Imagine, then, what a difference more minority judges might make. Unless the current system of education changes, however, that difference will remain a figment of the legal imagination.

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