The high price of free trade
ROGER FITCH ESQ • THURSDAY, JUNE 18, 2015
Busy season for the US Supremes ... Huge trade agreements a boon for corporates but unhappy consequences for the democratic process ... Australian proposals for the trade in professional services ... Rarely used federal death penalty for Boston bomber ... UN's guidelines on habeas corpus ... Ukrainian jobs for US residents ... Our Man in Washington
MAJOR supreme court cases will be decided this month, including Obergefell, the marriage equality case.
In King v Burwell, millions of Americans could lose their health insurance tax credits through a legislative drafting oversight in the Affordable Care Act. The case gives the court's conservative Republicans another shot at displacing "Obamacare".
There's also a civil rights case pending where CJ John Roberts could set back antidiscrimination law if he chooses.
In the next term, there's an opportunity for the Roberts Court to gut voting rights for Democrat-voting minorities in Texas, more here.
A decision requiring state senate districts to be structured differently to lower houses could help Republicans crack open one of the most intractably-Democrat states, California.
Some enlightened decisions continue to emerge from the court, and the latest concerns aFacebook posting -scienter is still required in prosecutions for threats. Scotusblog has the story.
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Freedom Act replaces the NSA's bulk data collection
Congress has now passed the absurdly-named USA FREEDOM (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring) Act to ban the NSA's bulk metadata collection in future.
Meanwhile, it cost corporations less than $18,000 per Senator to secure the passage of a"fast track" Bill, giving President Obama the power to negotiate, without Congressional input, the Trans-Pacific Partnership agreement. With 435 members, the House will cost more.
The TPP would remove "trade barriers", which might include environmental, labour, health, safety and other regulatory nuisances that inconvenience transnational corporations and inhibit their profits.
There's also a Transatlantic Trade and Investment Partnership under negotiation, with similar corporate "trade" proposals.
A UN body is worried about the impact of such "free trade" and investment agreements on human rights (more here).
The TPP will allow trans-national corporations to redefine sovereignty
Economist and Nobel laureate Joseph Stieglitz is alarmed by the social consequences of letting transnational corporations decide the laws that regulate them, bypassing national democratic processes.
WikiLeaks released documents from a third set of negotiations, the highly-secret Trade in Services Agreement, which has Australia as a co-conspirator, sorry, partner.
The TPP, TTIP and TISA form a globalisation trifecta, a corporate Trojan horse for deregulation and the reciprocal plundering of countries signing-up. Many provisions begin with "A Party [State] may not …" and are designed to take legislation off the table in signatory countries; worse, transgressions are litigated in special arbitration courts - staffed by corporate lawyers - from which there is no appeal.
States have no corresponding right of redress, and there is no recourse to their courts.
Forbes was disturbed by provisions regulating the internet, found in the Annex on Electronic Commerce.
TISA also has an Annex on Professional Services covering lawyers, accountants, engineers, architects, vets and "private education services".
Aussie lawyers may be interested in these provisions:
4. Local presence [Australian government proposal]
(a) No Party may require a service supplier of any other Party to establish or maintain a representative office or any form of commercial presence, or to be resident in its territory as a condition for the professional services.
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5. Foreign Capital Limitations [US proposal]
No Party may, with respect to entities supplying professional services through a commercial presence limit the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
There's also this Australian proposal:
10. Lawyers Fly-in, Fly-out (a) Where commitments are undertaken for the supply of legal services … for foreign law, a Party shall allow entry and temporary stay on a fly-in, fly-out basis without requiring the service supplier to establish or maintain a representative office or any form of commercial presence, or to be resident or domiciled in its territory, or to gain admission or otherwise qualify as a local practitioner, or to register in the Party ...
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Federal death sentence for the Boston bomber - rarely used
The US has performed badly again in the UN's annual review of its human rights record, more here.
Al Jazeera has more.
The US imposition of the death penalty has been highlighted by the conviction of the "Boston bomber", who received the federal death sentence in Massachusetts, a state strongly opposed to the penalty, and one where it has not been imposed since 1947.
The federal death penalty has been imposed just three times in 30 years, and there is some talk that capital punishment could finally be abolished in the US.
The UN has also issued its guidelines on habeas corpus, just in time for the 800thanniversary of Magna Carta.
It's a timely issue in the US, where the habeas action of Abu Zubaydah, the CIA's first (post-9/11) torture victim, has seen an extraordinary delay of nearly seven years in DC district court.
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Years after his plea bargain (Fitch of October 2012), and following 13 years of gratuitous torment by successive American and Canadian governments, Omar Khadr has finally been bailed by an Alberta court, pending his appeal of fake war crime convictions at the Pentagon's dodgy Court of Military Commission Review.
Khadr's chances look good, as the DC Circuit has just issued its long-awaited decision in Al Bahlul, striking down "conspiracy" and other US-invented "war crimes" as offences triable by military commission. Steve Vladeck comments.
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Government declassifications have led to more damaging revelations by Gitmo internees of their abuse, e.g. that of Majid Khan, the "High Value Detainee" presently awaiting a military commission sentence pursuant to a plea deal, and Shaker Aamer, the last British resident still held.
Marty Lederman explains the significance of ending the gag orders against Gitmo internees talking about their mistreatment, now that the US Senate's Feinstein Report on the same torture has been released.
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In the same week that the author of Boumediene, retired justice John Paul Stevens, called for reparations to some Guantanameros, the City of Chicago set-up a fund to pay the victims of past torture by the Chicago police.
US cities and towns pay out millions in civil damages and settlements every year for police negligence and misconduct, but Chicago's program will be the first systematic fund.
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Saakashvili: new job running Odessa
The New York lawyer and sometime Georgian president, Mikheil Saakashvili, has lounged around Brooklyn in recent years, looking for meaning in his life.
Now, he's finally found a job: Ukraine's ruling oligarch has made him Odessa's regional governor.
As one headline read, "Neocon Fugitive Given Ukrainian Province".
Like Ukraine's new Finance Minister, American ex-State Department functionary Natalie Jaresko, Saakashvili has taken out citizenship.
Ukrainian law requires that dual nationals renounce their other citizenship within two years, but by then the US-EU looting of Ukraine should be pretty well complete.
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