Monday, February 27, 2017

"We are not a 'Show me your Papers' Society. . . "

Last Thursday, Customs and Border Patrol (CBP) agents asked passengers to show their identification while deplaning in New York from a flight originating in San Francisco. They were searching for a person who had been ordered deported.

It's another example of CBP overreach. Ten days ago I wrote about an incident where CBP asked a returning U.S. citizen to hand over his cell phone for inspection, and to provide his passcode, in Houston, Texas. I concluded that, despite appellate cases to the contrary, in light of U.S. v. Riley (2014) CBP does not have a right to snoop through your phone or computer at the border without probable cause and a search warrant; at least not if you are a citizen or permanent resident of the United States.

Today, Garrett Epps, a teacher of constitutional law at the University of Baltimore, reaches the same conclusion with respect to the right of CBP agents to check your driver's license as you deplane from a domestic flight. They don't have that right. An ID check is a "search" within the meaning of the 4th Amendment to the constitution, and police or CBP needs probable cause and a warrant (or your permission) to conduct such a search.

Don't give your permission.

Here's Epps in the The Atlantic:
An ID check is a “search” under the law. Passengers on the JFK flight were not “seeking admission (to the country)”—the flight originated in the U.S. CBP officials told the public after the fact that they were looking for a specific individual believed to be on board. A search for a specific individual cannot include every person on a plane, regardless of sex, race, and age. That is a general paper check of the kind familiar to anyone who has traveled in an authoritarian country. As Segura (a 4th Am expert) told me, “We do not live in a ‘show me your papers’ society.”
Every society gets the police we deserve, they say. Police have no business checking our identification while boarding or deplaning domestic flights. By analogy, the same would hold true for spot searches on a bus, train, or sidewalk.

Resistance starts with us. Epps has taken this to heart. He writes:
I am a white, English-speaking law professor, affluent, privileged, articulate, and a native-born citizen. Such hair as I have is white and I can hardly seem like a threat to anyone. I have researched the matter, and feel reasonably confident that an agent would have to let me pass if I refused the demand for my papers. If not, I can afford counsel and my family knows excellent lawyers to call.
I am vowing here and now not to show papers in this situation. I know that it will take gumption to follow through if the situation arises. What will be the reaction of ordinary travelers, some with outstanding warrants or other legal worries? Should we expect heroism of people who just want to get off an airplane?

Artifact from a "show me your papers!" society

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The World's Interdependent Economy: New World Bank Data

According to new data released by the World Bank, the U.S. continues to have the largest slice (24.32%) of the world's $74 trillion economy. 

Here is a detailed listing by country and region. It is noteworthy that if we look at regions, East Asia and the Pacific Region ranks first ($21.7 trillion), Europe and Central Asia ranks second ($20.1 trillion), and North America is in third position ($19.6 trillion).

Top Ten Ranking by Country (GDP in brackets)

1. United States ($18.03 trillion)
2. China ($11 trillion)
3. Japan ($4.38 trillion)
4. Germany ($3.36 trillion)
5. UK ($2.86 trillion)
6. France ($2.42 trillion)
7. India ($2,09 trillion)
8. Italy ($1.82 trillion)
9. Brazil ($1.77 trillion)
10. Canada ($1.55 trillion)

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Thursday, February 23, 2017

We are All One Society

The white working class who elected Donald Trump president--those non-college educated workers in the middle 50% of families (30th to 80th percentile) whose median income was $64,000 in 2008--"resents professionals but admires the rich," said Joan C. Williams in her election post-mortem. And they despise the poor.

This working class sentiment is shared by much of today's GOP establishment in the United States, and by many of the wealthy in society everywhere. The wealthy believe they are deserving because they are "job creators" (as the refrain had it here a couple of election cycles past), because they are smart, industrious, and innovative. They worked hard in school. They worked hard in business. For society to succeed, they say, we only need to unleash the power of the smart, hard working, and innovative. It's hard to argue with success.  

President Trump, heartily supported by Paul Ryan, Mitch McConnell and their Congressional co-leadership, says "unburden the smart, hard working, innovative, and rich from their tax burdens and from the hobbles of regulation" and we'll make America Great Again! 

According to this world view shared by the working class and the rich, the rich are deserving and the poor are moochers, "who believe they are entitled to  healthcare, food, and housing" in Mitt Romney's "deplorables" phrase.  The poor, those families in the bottom 30%, are resented, despised, and forgotten by both the working class and the rich. Let the churches look after them! is the sentiment. 

But this world view of just deserts shared by the working class and the wealthy is an illusion says Brad DeLong. The truth is the rich are overpaid. They are cashing in a disproportionate share of our societal dividend. The truth is, the rich are not worth what they are paid. They are not "deserving;" they are "lucky."   

The illusion of "just deserts" fails to recognize that we, the 100%, are all one society.  Elizabeth Warren, of course, said something similar in 2012 during her  campaign for the Senate. 

Here's Brad DeLong: 
In [our world there are] mammoth increasing returns to unowned knowledge and to networks. [In such a world] no individual and no community is especially valuable. Those who receive good livings are those who are lucky–as Carrier’s workers in Indiana have been lucky in living near Carrier’s initial location. It’s not that their contribution to society is large or that their luck is replicable: if it were, they would not care (much) about the departure of Carrier because there would be another productive network that they could fit into a slot in. 
Think of the iMac computer I type this on. How did it get here? There is no person in the world who knows how to build one of these machines, much less how to design it, build it, and bring it to market. There are some who know computer programming; there are some who know about designing computer chips; there are some who know more broadly about the guts of this hardware; there are some who know how to organize a factory in China; there are some who know how to create that polished, scratch resistant glass; there are some who know how to form those shiny aluminum cases, or keyboards; there are some who know how to harvest/create the raw materials used in all the different components; there are some skilled in putting all these components together; there are some who know about supply chains; about bar codes; there are stevedores and ship captains; there are store clerks; there are some who know how to educate all these people so they can do what they do; there are some who can design or build the buildings Apple is housed in, the roads Apple employees drive on; the aircraft carriers that keep the sea lanes safe . . . . The point is: they are all needed.  Without any one of these, I don't have a computer sitting on my desk. Apple's CEO, Tim Cook is paid ~$10 million annually and, in addition, he has a stock compensation package worth hundreds of millions.  Tim Cook doesn't have a clue how to build an iMac or get it to my desk--why does he "deserve" so much?
All of this “what you deserve” language is tied up with some vague idea that you deserve what you contribute–that what your work adds to the pool of society’s resources is what you deserve.

This illusion is punctured by [the necessary] recognition that there is a large societal dividend to be distributed, . . .
It is a dividend that Tim Cook did not create.  This societal dividend does not belong to the rich; it is more like a commons, the natural resources like air, water, and open land, that is is accessible to all members of a society.

But we like the illusion that we receive what we "deserve." And because we like this illusion. . .
the government is supposed to, somehow, via clever redistribution, rearrange the pattern of market power in the economy so that the increasing-returns knowledge- and network-based societal dividend is pre-distributed in a relatively egalitarian way so that everybody can pretend that their income is just “to each according to his work”, and that they are not heirs and heiresses coupon clipping off of the societal capital of our predecessors’ accumulated knowledge and networks.
But it is an illusion, and it doesn't work. When Tim Cook collects $10 million in salary each year and hundreds of millions in stock compensation, he is coupon clipping off of the societal capital of our predecessors' accumulated knowledge and networks.

What about those poor workers who used to have steady, good paying jobs for themselves and their offspring at General Electric in Erie Pennsylvania, and now don't, . . . and so voted for Trump, while despising the professional class represented by Hillary Clinton and despising the poor?
[I]n a market capitalist society, nobody has a right to the preservation of their local communities, to their income levels, or to an occupation in their industrial specialization. In a market capitalist society, those survive only if they pass a market profitability test. And so the only rights that matter are those property rights that at the moment carry with them market power–the combination of the (almost inevitably low) marginal societal products of your skills and the resources you own, plus the (sometimes high) market power that those resources grant to you.
And this market power, we know, is largely a matter of luck . . .  "This wish to believe that you are not a moocher," says DeLong, "is what keeps people from seeing issues of distribution and allocation clearly–and generates hostility to social insurance and to wage supplement policies." In order to realize that we are all one society, we must "rip the veil off of the idea that (we) deserve to be highly paid because (we) are worth it. (We) aren’t," says DeLong.
And this ties itself up with regional issues: regional decline can come very quickly whenever a region finds that its key industries have, for whatever reason, lost the market power that diverted its previously substantial share of the knowledge- and network-based societal dividend into the coffers of its firms. The resources cannot be simply redeployed in other industries unless those, too, have market power to control the direction of a share of the knowledge- and network-based societal dividend. And so communities decline and die. And the social contract–which was supposed to have given you a right to a healthy community–is broken.
It's a matter of psychology, says DeLong.
[H]umans are, at a very deep and basic level, gift-exchange animals. We create and reinforce our social bonds by establishing patterns of “owing” other people and by “being owed”. We want to enter into reciprocal gift-exchange relationships. We create and reinforce social bonds by giving each other presents. We like to give. We like to receive. We like neither to feel like cheaters nor to feel cheated. We like, instead, to feel embedded in networks of mutual reciprocal obligation. We don’t like being too much on the downside of the gift exchange: to have received much more than we have given in return makes us feel very small. We don’t like being too much on the upside of the gift exchange either: to give and give and give and never receive makes us feel like suckers.
We want to be neither cheaters nor saps.

It is, psychologically, very hard for most of us to feel like we are being takers: that we are consuming more than we are contributing, and are in some way dependent on and recipients of the charity of others. It is also, psychologically, very hard for most of us to feel like we are being saps: that others are laughing at us as they toil not yet consume what we have produced. 
And it is on top of this . . .  “natural propensity to truck, barter, and exchange”–-[that] we have built our complex economic division of labor. We construct property and market exchange(s). . .  to set and regulate expectations of what the fair, non-cheater non-sap terms of gift-exchange over time are. We devise money as an institution as a substitute  of the trust needed in a gift-exchange relationship, and we thus construct a largely-peaceful, global, 7.4 Billion-strong highly-productive societal division of labor, built on
assigning things to owners—who thus have both the responsibility for stewardship and the incentive to be good stewards…
But we are blind to the commons, the societal capital we have jointly inherited. And we don't know how to properly value and distribute that societal capital.

Tim Cook is the CEO in charge of a very large, highly productive societal division of labor, whose end product is an iMac on my desk. He has both the incentive and the responsibility to be a good steward of this "very large-scale web of win-win exchanges…mediated and regulated by market prices…"
There are enormous benefits to arranging things this way. As soon as we enter into a gift-exchange relationship with someone or something we will see again–perhaps often–it will automatically shade over into the friend zone. This is just who we are. And as soon as we think about entering into a gift-exchange relationship with someone, we think better of them. Thus a large and extended division of labor mediated by the market version of gift-exchange is a ver powerful creator of social harmony.
It's the opposite of protectionism. When we retreat into nationalist protectionism, as the people who voted for Trump this election have done, we have lost sight of the fact that we are all one society, 7.4 Billion strong.
This is what the wise Albert Hirschman called the doux commerce thesis. People, as economists conceive them, are not “Hobbesians” focusing on their narrow personal self-interest, but rather “Lockeians”: believers in live-and-let live, respecting others and their spheres of autonomy, and eager to enter into reciprocal gift-exchange relationships—both one-offs mediated by cash alone and longer-run ones as well.
Trumpism is to focus on the narrower personal self-interest. . .; it is to lose track of a proper accounting of our societal capital; it is to ignore the benefits of society, the live-and-let-live attitude that respects others and their spheres of autonomy, eager to enter into gift-exchange relationships . . ., and to lose track of the fact that without all, that iMac does not sit on my desk.

Ultimately, however, we do it, we need to get everybody to understand that:
[N]o, none of us is worth what we are paid. We are all living, to various extents, off of the dividends from our societal capital. Those of us (Tim Cook) who are doing especially well are those of us who have managed to luck into situations in which we have market power–in which the resources we control are (a) scarce, (b) hard to replicate quickly, and (c) help produce things that rich people have a serious jones for right now.
When we behold a global supply chain like the one for the iMac, we can admire the stewardship at the top and the individual ingenuity, hard work, and dedication all up and down the line. But above, all, we must remember that from Tim Cook to the miners of precious metals, everyone is living off a global societal inheritance, and that this societal inheritance belongs to everyone. . ., even those in the bottom 30 percent, and those left on an empty side-track in Erie Pennsylvania. 

We must not lose sight of the fact that we are all one society. 

P.S.  DeLong's thoughts were triggered by some suggestions from Noah Smith for how to properly distribute some of our societal dividend in the depressed Midwest, in places like Erie Pennsylvania.  Read the entire piece HERE.  And this week,  Dietrich Vollrath, associate professor of economics at the University of Houston had an article about DeLong's post HERE.  Vollrath examines DeLong's comments in terms of Trust and Scale, and he says: " I found [this] to be a unique justification for the public sector."

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The Trump Administration Seeks to Increase Enforcement of our Broken Immigration Laws

President Trump's executive order on immigration, issued on January 27, 2017, blocked travel from seven Muslim countries, suspended our refugee program, and sought to reform our refugee program to prioritize Christians over Muslims. Implementation of the order was halted by the courts, and the Trump administration, it appears, has opted to craft a new order instead of pursuing further appeals.

Things are not likely to get kinder or gentler anytime soon.

The Kelly Memoranda

Over the weekend, Secretary of Homeland Security, John Kelly, signed two memoranda that contain sweeping new guidelines directing federal authorities to more aggressively detain and deport illegal immigrants at the border and inside the country.

"Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens," says the memo.  That covers 11 million undocumented residents of the U.S., many of whom have been here for decades. Excluded--for now-- are President Obama's DACA program (directing prosecutorial discretion not to enforce the immigration laws against individuals who came to the United States as children, and President Obama's DAPA program with respect to certain individuals who are parents of U.S. citizens or permanent residents).

Secretary Kelly has directed the Department to expeditiously hire 10,000 ICE enforcement officers (for enforcement in the interior of the country) and to take enforcement actions commensurate with available resources. In order to increase police resources, the Department is directed to enlist local law enforcement personnel as much as possible.

The memo directs that all resources currently used to advocate on behalf of the undocumented community, and all outreach programs, be terminated and the resources redirected to work with "victims of crime" and (presumably?) citizen informants.

ICE is directed to no longer afford privacy act protection to undocumented individuals. Effectively this means that any information or data that enters the system, which must be maintained private for citizens and permanent residents, will be shared across federal agencies.

The memo calls for regulations to collect fines and penalties from undocumented workers "and those who facilitate their unlawful presence in the United States."

By a separate memorandum, Secretary Kelly directs the Department to expand its detention facilities and to hire 5,000 additional CBP border patrol agents.

The Department is directed to collect data and to engage in propaganda publicizing and emphasizing anyone convicted of crimes.

No Significant Immigration Reform Since 1986

The last major immigration legislation in 1986 granted amnesty, and a path to citizenship for some undocumented workers who had been in the U.S. continuously since 1982.  The legislation criminalized the knowing hiring of illegal workers, but imposed no duty to check on employee status.

After implementation of the amnesty program in the 1986 legislation, there remained an illegal population of at least 2 million.  Thereafter illegal immigration increased substantially until it stabilized in 2008 at 12 million, and thereafter slightly decreased.

The 1986 law sought to secure the border with Mexico by authorizing additional border fencing, surveillance technology, and increased CBP staffing. As the net decrease in undocumented workers after the 2008 Greater Recession demonstrates, illegal immigration responds to market demand. [Changes in the Mexican economy and increased enforcement from the mid-1990's on also played a role] The U.S. farming, construction, restaurant, and hospitality industries had a great need for workers for which there was not a ready domestic supply, and immigration from Latin America filled the need. The 1986 legislation was defective in that it failed to establish a legal mechanism to fill this need.

By failing to provide a reasonable mechanism to accommodate the immigration needs of the economy, we have caused a sizable undocumented workforce to build up in our country. This workforce is more industrious than Americans in general (they are employed at higher rates than U.S. citizens and permanent residents), and immigrants in general are more law abiding than Americans in general.

This community exists because Congress has been gridlocked on the issue of immigration for the past 30 years. The result is a cruel situation where 11 million workers and their families, two thirds of whom have been here for more than 10 years, lack proper documentation, don't receive their fair share of social benefits, and are living in a state of peril and uncertainty.

We are about to make their lives worse. Shame on us.

Watch this five minute story of Marisol Conde-Hernandez and here family, first published in The Atlantic in May 2016.

Thursday, February 16, 2017

Your Cell Phone and Computer at the Border

"Let's see your computer. . . What's your password?
A record number of Americans, about 73 million, travelled abroad in 2015; an equal number visited the United States from abroad, about 77 million. That makes for approximately 150 million border crossings. Those crossings are primarily monitored by the Customs and Border Protection Service (CBP), a division of the Department of Homeland Security.

Border crossings can be tense: “where have you been?” “Where do you live?” “What do you do?” Agents wear guns. They don’t mean to put us at ease; they are trained to intimidate, to be direct, and firm. It mostly comes off as rude. It increases blood pressure at the best of times.

The U.S. Supreme Court has recognized that when we approach a border we enter a kind of no-mans-land when it comes to our constitutional protections against searches and seizures, and arbitrary treatment. There is a “long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country,” said the court in U.S. v. Ramsey, 431 U.S. at 616. At the border, officers can detain us for secondary questioning at a whim; they can make us miss our planes.

Foreign visitors can be arbitrarily denied entry, and in the current hysterical climate regarding terrorism more and more of them are being turned away. Trump’s recent Executive Order on immigration suspended our refugee program for four months even though the risk of getting killed in a terrorist attack by a refugee is infinitesimal: 1 in 3.64 billion. [Compare that to the 1 in 10,000 chance of being killed in a car crash; and we’re not seeing politicians clamoring for a four months suspension of all driving "so we can figure out what’s going on!”]

In Israel, since Netanyahu assumed power in 2009, the arbitrary detention and rejection of visitors at the border has increased eleven fold. Trump’s executive order on immigration signals that he aims to impose a similar hockey stick graph on our border statistics.

Trump has been talking about “extreme vetting” of refugees. In a recent NPR interview, Trump’s Director of Homeland Security, John Kelly, explained what he has in mind:

 “The thing that we're looking for is when a person comes in . . . we ask them to give us a list of websites that they visit and the passwords to get on those websites to see what they're looking at . . . –(what) social media, to see what they tweet; cell phones - cell phone conversations or cell phone contact books to where we can run them against databases, telephone numbers, people's names. Europe, the United States maintains databases and shares those databases. So these are some of the things we're thinking about.”

Our immigration officials at the border don’t mean to limit such inquiries to refugees. On December 8, 2016, the Electronic Frontier Foundation described three examples of such detention and questioning: one, a Canadian photojournalist, two, a U.S. citizen and reporter for the Wall Street Journal, and three, a dual Iranian-U.S. citizen. On January 30, 2017, a U.S. born NASA scientist, Sidd Bikannavar, was detained for questioning at customs in Houston, and not allowed to leave until he provided the password information to his smart phone.

Are we Really Required to Hand over our Computers and Cell Phones to CBP and Give them our Passwords when they Ask?

The Fourth Amendment to the U.S. constitution generally prohibits unreasonable searches and seizure and requires that searches be made pursuant to a warrant granted upon a showing of probable cause.  The border search doctrine and the “search incident to arrest” doctrine are two exceptions to the rule.

The Supreme Court said in U.S. v. Ramsey (1977) that the right to question people crossing the border, and to search goods, and mail, crossing the border is “plenary” and does not require probable cause. “It’s the border, stupid” and this makes such searches reasonable. The court observed that the border exception is similar to the “search incident to arrest” doctrine.

In U.S. v. Cotterman 709 F.3d 952 (9th Circuit 2013) the court reiterated the broad sovereign interests that prevail at the border, but emphasized that, even at the border it’s not “anything goes.” The 4th Amendment still applies and “reasonableness” is the standard. But the court held that in the border context, it is reasonable for officers to snoop through your computer without any reasonable suspicion. In U.S. v. Arnold 533 F.3dd 1003 (2008) the court said: "we are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”

So you can see where John Kelly gets the idea that his policy of inspecting our phones and computers on a whim during border searches will stand muster.

[In Cotterman the court also held that a forensic examination of your computer by customs officials requires “reasonable suspicion,” but let’s set that aside for now]

The CBP also thinks they have the authority to force you to tell them your password. They point to 19 U.S.C 507 as statutory authority. Section 507 says “every customs official  shall. . . have authority to seek the assistance of any person in making . . . any search. . . .” Orin Kerr, an expert on the 4th Amendment and computer law at George Washington Law School, is skeptical that this says we must turn over our computer and phone passwords when asked, and he suggests there are no cases interpreting the statute in such a manner. It also seems that a compulsion to disclose a password would violate the 5th Amendment right against self-incrimination. See Miranda v. Arizona 384 U.S. 436 (1966)(extending the Fifth Amendment protection against self-incrimination to encompass any situation outside of the courtroom that involves the curtailment of personal freedom).

U.S. v. Riley

But there is reason to believe that Cotterman, Arnold, and other cases holding immigration officials have the right to examine the contents of our cellphones and computers without probable cause (or any articulable suspicion), will not survive a trip to the Supreme Court.

In U.S. v. Riley 573 U.S. __ (2014) a unanimous Supreme Court removed cell phones (and by implication computers) from the “search incident to arrest” exception to the 4th Amendment probable cause and warrant requirement. Cell phones are different from other personal property we carry around. Cell phones are uniquely private. They contain digitial data, much of which is not even located on the phone, but in remote locations (“the cloud”) that are only accessed through the phone. Cell phones contain our whole life: our communications for months and years, what we look at, where we’ve been, what we’re interested in; they reflect our inner most private thoughts and concerns, our photo albums, our address books. Digital data is as different from a crumpled cigarette pack as, in John Robert’s memorable phrase, a trip down a country lane in a buggy is different from a rocket ride to the moon.

“Absent more precise guidance from the founding era,” explained the Chief Justice in Riley, “we generally determine whether to exempt a given type of search from the warrant requirement by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other hand, the degree to which it is needed for the promotion of legitimate government interests.” In the case of an arrest, the legitimate interests of the police are (1) to remove any weapon that presents a threat, and that might lead to resistance or escape; and (2) to seize evidence on the person relevant to the crime that is the subject of the arrest to prevent its concealment or destruction. The right or warrantless search extends to an area within the immediate control of the defendant. The examination of a cell phone serves neither of these purposes, the Riley court found, and so the police may not examine cell phones incident to making an arrest without probable cause and a search warrant.

The same analysis should apply to the warrantless examination of cell phones and computers during a border search. As the court noted in Ramsey (1977), there is a two-part rationale for border searches: (1) to have the traveler identify himself or herself as being someone legally entitled to enter the country; and (2) to verify that the traveler’s belongings are things that may lawfully be brought into the country. These rationales do not support invading the heightened privacy interest we have in cell phones and computers (as recognized by Riley) without probable cause and a warrant—certainly not for citizens and other lawful residents.

Citizens automatically have a legal right to enter the country. Compare the opinions of ACLU lawyer, Nathan Freed Wessler, as reported in this ARS Technica article, and Orin Kerr’s analysis. Detaining a citizen is a seizure and a seizure can’t be unlimited, notes Kerr. The sovereign has no right to exclude a citizen, and absent probable cause that it contains evidence of a crime, there is no basis to seize a computer or cell phone and to examine the digital data these devices contain. Personal computers are not objects prohibited from entering the country.

The situation is less clear for foreign visitors. The role of CBP is to have the traveler identify himself or herself as being someone legally entitled to enter the country. An examination of a cell phone or computer might be relevant to such an identification. If you sport a picture of Bin Laden or Mohammad Atta as your screen shot—this might legitimately prompt some follow up questions.

[Constitutional rights generally apply to anyone present in the country alike, i.e. to citizens and non-citizens alike; but that’s another issue]


CBP has cases they can point to in support of their desire to look at your cell phone and computer at a  whim without probable cause or reasonable suspicion that it contains evidence of any wrongdoing. Riley suggests they shouldn’t have that right.

We have gotten used to universal searches at airports before boarding a plane. The mechanical and universal way TSA now conducts these searches is reasonably unobtrusive. But imagine that Silicone Valley develops a way to down-load all the contents of your computer and cell phone data as easily as we now scan our computers for explosives before boarding a plane!  Do we really want to sit by and let the government do this every time we cross a border?  I don’t think so.

The only way to guard our privacy is to stand up for it. I, for one, am resolved that if asked to turn over my phone or computer at a border check I will not voluntarily do so . . . , and I will not provide a password to these devices to CBP short of torture. 

Like with all things Trump, the watchword is RESIST.

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Saturday, February 11, 2017

Let's Explore What is This, Through Literature . . .

Van Leer Institute, Jerusalem
Yehuda Shenhav is a professor of sociology at Tel Aviv University, an Israeli theorist on bureaucracy, management, and capitalism, and a writer on the Israel/Palestinian conflict. He has taught in the United States at Stanford, Princeton, University of Wisconsin—Madison, and Columbia. His critical essay, Beyond the Two State Solution (2012) argued that the world’s fixation on Israel’s Green Line (the 1948 cease fire line), and Israeli settlements beyond the Green Line since 1967, is counter-productive and offers no long-term solution. See reviews of his position by Alex Kane Here and Here. Gilad Halpern and Dahlia Scheindlin, now co-hosts of the podcast series The Tel Aviv Review, interviewed him on their most recent program.  

Shenhav has lost faith in the ability of academic scholarship to bridge the gap between Israeli and Palestinian society, and so he is turning to literature. With the support of the Van Leer Institute in Jerusalem he is translating novels written by Palestinians about the Palestinian condition from Arabic into Hebrew. The first book in the series, Salman Natur’s Walking on the Wind, will be launched at the Van Leer Jerusalem Institute on Wednesday February 15, 2017. 

Translation of literature is needed, says Shenhav, because the number of Jewish Israelis who speak Arabic (outside of the security services) is approximately none. The translation of Arabic literature, he hopes, will help bridge the gap between these languages and cultures. Literature, he hopes, can help forge a common language and that might represent a tentative step towards a shared society.

Literature, thinks Shenhav, can approach topics that our political discourse can not: 
 “I think that literature is a better battlefield than academia. To be honest, I lost some faith in academia and research. . . .  It has to do with my identity. We were three or four good friends. One of them was Adi Ophir and Hanan Chever; one of them  (was) a prominent philosopher and (the other) a literary researcher, (and they) said very nasty things against the Jewish state. The Zionist state. Then comes me, who says similar things. Then comes (an Israeli Palestinian) who says more lenient arguments—he is not as critical. . . (but) the interpretation of what he says is mediated by his position in  society: if you are an Ashkenazi Jew (European) the latitude of what you can say is wider; when you are Mizrahi (Jew from Muslim lands) it narrows down; when you’re an Arab . . . you can go to hell.
Or you can write a novel. . . .  in Arabic.
"I always told [my Palestinian friends who cause a political uproar]. . . if I say what you have said, nothing would have happened. . . . (But, still) my position as a Mizrahi, who is potentially an Arab Jew, is much more alerting than if my dear friend Hanan Chever agrees with me. He is the (accepted) black sheep of the family. [The Palestinian Israeli's criticism] is beyond the pale; I am in between. (So) identity mediates very much what you say.  This is (a). And (b) . . . I don’t think this whole project of the two-state-solution and the idea of dividing (the land is viable). . .
It's something better approached through literature, because when it comes to political discourse "I think that the left in Israel is not less fascist than the right winger is, and sometimes more.  . . ."
"The Nakbah, which I call (painfully) 'the ethnic cleansing of Palestine,' was done by the Israeli Left. By the Jewish Left.  Hashomer Hatza’ir, the most radical leftist (Social Worker’s party movement), swallowed most of the Palestinian lands and (their) story (is that) the war of ’48 (justified everything). . . This is bullshit, because most of the Palestinians were kicked out prior to ’48. I say that painfully. 
"I could have been an ardent Zionist. I was. I was. But I feel as a Jew, an Israeli Jew who grew up here--I’m from the ’73 cohort; that’s when I was in the army--I was betrayed. . . . I wouldn’t say (betrayed) by this country, but by this (Zionist) ideology. And I realize that this is not what we were told all these years. And somebody who feels he was cheated thinks twice afterwards. And where we were cheated, and why we were cheated, . . . we—the Sabra Jews who were really, really (patriotic). . . .
. . . and Shenhav trails off into shared, traumatic, memory; memories best left to literature.

Halpern prods him: “The whole outlook that you now paint is very bleak. Do you have any hope whatsoever in the future? You said you lost faith in the ability of academia to change (the dialogue) and now you’re engaged in this cultural/literary project. . . .

And Scheindlein chimes in: “I think this is very clear—for everything you have lost faith in, you have something to replace it: you’ve lost faith in academia, but you replaced it with literature; you’ve lost faith in the two-state-solution, and you have replaced it with . . .  ?”

Shenhav gives it a try: we cannot divide the land! 
“I would say (we cannot divide the land). There is no way we can divide the land because the Palestinians and the Jews are like Siamese twins. You cannot separate them.  You know how they (try to) separate them here: they call them Palestinians in the West Bank, and Israeli Arabs here. But this is bullshit. . . . This is like in South Africa: they had 14 definitions of blacks just to divide them and rule . . .”
Jews and Muslims cannot be separate from their close embrace in the small land that is Israel Palestine, not much larger than Los Angeles. We may as well learn each other's language, read each other's literature, suggests Shenhav . . . .
“I remember, Dahlia, that we met in New York once, after the debate with Peter Beinart (on Broadway, on the upper East Side). We were all going out to a restaurant, . . .  Peter Beinart, if you put a gun to his head and ask him—‘so at the end, what do you want?’  (He answers) ‘A Jewish state.' 
Not enough Arab literature in that, suggests, Shenhav. It'll never work . . . .

In the 1990’s, with Rabin and the peace process, Shenhav believed in the two-state-solution. He protested against the settlements. . . “all these kind of things. . . ."

Not today. Today . . . "I believe today that you should not kick out people, expel people from their homes, even if . . .   It’s a bad practice; it’s a bad practice. And I think we should be very careful with those kind of practices."

In 2005 Israel withdrew its troops from inside Gaza, while continuing to control passage in and out of Gaza of goods and people. . . . It was a mistake:
“Had it been today. . . , I would protest against the government with the settlers. However, I also believe in the right of return. I think it's possible. I think it is desirable, and I think to some extent it will happen.  . . . ."
"For all sides: for Jews, for Palestinians, and for Jews in the West Bank and Gaza," asks Halperin. “Why not?” says Shenhav. In other words, giving up Gaza was a mistake, but not for the usual reasons.
“I don’t have anything against settlements. . .  [But] let me end with a non-provocative statement.  There is no single settlement that causes (as) much trouble to Palestinians as Modi'in and Karmiel (two Jewish cities inside Israel).  There are 19 years that separate ’67 and ’48. What is the difference between these settlements and other settlements?  So we cannot object to settlements (per se).  The funny decision that the Green Line has become . . . 
Non-provocative perhaps only in literature . . . .

Dahlia Scheindlin recalled attending a demonstration by Palestinians at Tel Aviv University some years ago. . . ("it must have been Nakba Day," she says)  There she observed Baruch Marzel (the Kach movement settler) wearing a blue T-shirt with the words “Al-Shaykh Muwannis." That was the name of the old Palestinian village where Tel Aviv University sits today.  Surely he wore the T-shirt sarcastically, Scheindlin suggested.

Members of Harel Brigade, Sheik Muwannis (1948)
“No. No,” said Shenhav. “If you are going to talk about settlements, they want to speak of the old places as well. They want this idea (that there is no difference between pre-'48 and post-'67 Israel) to trickle down.  And I say the same. So my students went out from class when they saw that, and they protested with him against the Meretz (left wing) voters, who denied (this Marzel view). . . 
"This is the paradox, that the Meretz voters denied that this was an Arab village, and Baruch Marzel acknowledged it. So you know that something is crooked here. You know that something is upside down here. You know that something is not right here. So let’s explore, what is this? . . .
Through literature . . .

Listen to the program at TLV1 HERE.

Follow me on Twitter @RolandNikles

Friday, February 10, 2017

State of Washington v. Trump: No It's not Political, Why do You Ask?

This cartoon decorated a post in 2012
worrying about Obama's overreach
and it'll serve here.
The State of Washington, proud birthplace of our daughter, is doing the country proud. Joined by the state of Minnesota, Washington is challenging President Trump's Executive Order 13769, which seeks to suspend entry to aliens from seven countries (Iraq, Iran, Lybia, Syria, Sudan, Yemen, and Somalia) for three months, to deny the right of some U.S. residents to leave and then re-enter the country, to suspend the entry of all refugees for four months, and then to reform our refugee program to prioritize Christians over others.

The order is widely seen as fulfilling a campaign promise by candidate Trump to ban all Muslims from entering the country "until our country's representatives can figure out what's going on." Rudy Giuliani has bragged about his role in drafting this order in a way that would pass constitutional scrutiny. So far the score is Constitution 2--Giuliani 0.

A week ago, judge James Robart in Seattle placed a nationwide halt on the Executive Order pending a hearing on the merits. In response, President Trump called Robart a "so called judge," ridiculed his abilities, and accused him of making a political decision. But this is no political decision. Indeed, Judge Robart was appointed by a Republican president (George W. Bush, 2004). Yesterday Judge Robart's halt on enforcement was upheld in a temperate and well reasoned decision by the Court of Appeals in San Francisco.

The Trump administration has made the remarkable claim that the president's authority over who enters the country, when motivated by national security concerns, is absolute and not reviewable by the courts. The Court of Appeals was direct and clear in its rejection of this claim yesterday. That's not "political," that's fundamental to our form of government.

Here are the three justices on the appellate panel in the Ninth Circuit in their per curiam (unanimous) decision:
[T]he Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case. 
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionallypermissible means of implementing that power”). Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995) . . . .
 . . . Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict. See, e.g., Boumediene, 553 U.S. 723 (striking down a federal statute purporting to deprive federal courts of jurisdiction over habeas petitions filed by non-citizens being held as “enemy combatants” after being captured in Afghanistan or elsewhere and accused of authorizing, planning, committing, or aiding the terrorist attacks perpetrated on September 11, 2001); Aptheker v. Sec’y of State, 378 U.S. 500 (1964) (holding unconstitutional a statute denying passports to American members of the Communist Party despite national security concerns); Ex parte Endo, 323 U.S. 283 (1944) (holding unconstitutional the detention of a law-abiding and loyal American of Japanese ancestry during World War II and affirming federal court jurisdiction over habeas petitions by such individuals). As a plurality of the Supreme Court cautioned in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (plurality opinion).
In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action. 
And once we allow a role for the courts to review executive action that infringes on liberty, the question is what are the factual premises for such an action, and what are the constitutional standards?

5th Amendment Due Process

The Constitution provides a right of due process to all persons present in the United States, whether they are citizens, non-citizens, here legally or illegally, here temporarily or permanently. Due process requires that before the liberty interest of any person may be infringed, there must be notice and an opportunity to respond and be heard, and the government must have some rational and proper basis to infringe on liberty. 

The order infringes on several constitutional liberty interests: the ability to travel, to leave and return, the ability of citizens and permanent residents to have family and friends visit from other countries, the ability of universities to admit students, and hire professors. Trump's Executive Order failed to provide notice and an opportunity to be heard on these infringements, and the government has failed to demonstrate a rational and proper basis for its order.

Here is the Court of Appeals again: 
"The Government has not shown that a stay is necessary to avoid irreparable injury. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years. The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above. 
"Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated. 
"In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that." 
As Will Baude notes at Volokh ("The Ninth Circuit and the Evidence Gap"), this lack of a rational basis  is likely to be a recurrent theme in court review of Trump actions.

1st Amendment Establishment Clause; Equal Protection Clause

The Executive Order also seeks to restructure our refugee program by prioritizing the admission of Christians over Muslims from the Middle East.  "We're going to help them," said President Trump, referring to Syrian Christians. The First Amendment, however, prohibits any law "respecting an establishment of religion." A law that has a religious and not a secular purpose violates this law; and a law that discriminates among groups of people based on religion violates the Equal Protection clause. This is not "political;" this is fundamental to our system of government.  

As I have pointed out previously, the United States is also signatory to the United Nations convention on refugees which states that refugees must be accepted without discrimination based on race, ethnicity, or country of origin.  

"We'll see you in court!" said President Trump when he learned of the Ninth Circuit's order yesterday.  
So far so good. 

For further reading see: 

Ilya Somin at Volokh Conspiracy. 
Jonathan Hafez at Balkanization

Follow me on Twitter @RolandNikles