Putin Watch


Vladimir Putin has probed in all directions regarding Ukraine’s presidential election, held this past Sunday. At first, he wasn’t going to stand for it – he would unleash the separatists countrywide if Ukraine dared hold elections. Then he warned that he would not recognize whatever the Ukrainian people decided. Most recently, he has stated that he would honor the elections and work with the Kiev government to resolve the unrest. What happened along the way explains a lot.

At first it appeared that Yulia Tymoshenko, the fiercely Western former foreign minister and close second to Russia’s puppet Viktor Yanukovych, would be the runaway winner, and Mr Putin knew he couldn’t work with any government headed by her. Then he began making inroads into Eastern Ukraine, setting in motion fears of Crimea II. Then Mr Petro Poroshenko, a billionaire businessman, burst onto the scene. He has worked well with both Europe and Russia in the past, and seemed to represent someone with whom Mr Putin could work.

Mr Putin has entered what is known as an operational pause – he is consolidating current gains, and continues to posture around next moves. He is waiting to see what, if anything, the West will do, and what, if anything, Mr Poroshenko will do.

As mentioned earlier in these pages, as soon as the regular occupation troops entered Crimea, Spetsnaz special operators again donned their unmarked black uniforms and ski masks, and began rabblerousing in the eastern cities of Kramatorsk, Donetsk and the rebel stronghold of Slaviansk, each containing large numbers of Russian-speakers like Crimea. But unlike Crimea, the energy density of the demonstrations weren’t as great. There was more pushback from those who would rather remain Ukrainian, or become more European. While any actual resistance would be easily crushed, it would result in an unseemly display of Russians killing Ukrainians. Mr Putin has sent in more Spetsnaz and SVR[1] (KGB’s new name) operators to shape events in the east. His cavalry and armor units have been pulled back to ~ten kilometers from the Ukrainian border. Air operations have been largely curtailed in Ukrainian airspace.

He’s taken his finger off the trigger, but the crosshairs are still on-target.

The West (read: Obama and Merkel) aren’t going to do much. NATO will continue to conduct exercises in Poland and the Czech Republic, Estonia and the Balkans. Sectoral sanctions (placing entire economic sectors under sanction) aren’t likely to be implemented, and aren’t likely to succeed if they are. $3.5 billion of the IMF’s $17 billion rescue package to Kiev will have to go to paying Ukraine’s unpaid gas bill to Russia, thus Mr Putin is having the West partially pay for his adventurism. Mr Poroshenko has agreed to implement reforms as part of the rescue package. Those reforms call for a steep increase in taxes and domestic gas prices, coupled with austerity measures to reduce spending – unpopular moves that could challenge Mr Poroshenko’s political resolve. Even with such reforms, the IMF predicts a 5% contraction in Ukraine’s economy in 2014 and says more bailout money could be required.

There are many variables in this situation, and Mr Putin has the undisputed upper hand – he can maneuver into a nearly no-loss takeover of as much of Ukraine as he wants, given enough time. He knows that the Western mind is notoriously impatient and easily bored. All he has to do is adjust his operational tempo to growing Western disinterest.

[1] Sluzhba Vneshney Razvedki (Russian: Служба Внешней Разведки).


Here We Go Again

Yet another scandal, yet another clueless White House.

Like Fast and Furious, like the IRS scandal and NSA surveillance of Angela Merkel, and like the suicidal conditions in Benghazi, the president admitted (through Jay Carney) to finding out about the Veterans Administration’s falsification of records and indifference for ailing veterans from press reports about the Phoenix secret “wait list.” Except that’s not true. VA officials warned the Obama-Biden transition team in the weeks after the 2008 presidential election that the department shouldn’t trust the wait times that its facilities were reporting. “This is not only a data integrity issue in which [Veterans Health Administration] reports unreliable performance data; it affects quality of care by delaying – and potentially denying – deserving veterans timely care,” the officials wrote[1]. In 2008. Six years ago. Nine recommendations arising from IG audits from 2005 to 2007 were not implemented by 2008 when officials prepared the report for the incoming administration, and have not been implemented in the six years since[2].

The president insists he did take immediate measures – he applied the liberal cure-all: he threw money at the VA. The problem only metastasized. Nineteen states and counting at latest figures. VA fired the medical director, Dr Robert Petzel, with full benefits and pension (!) He was retiring anyway in a month. But this was the administration’s “answer” to the problem. That, and they are going to open an investigation – never mind the three previous IG reports in General Shinseki’s files. And that will be that. “We don’t comment on open investigations,” will become the standard answer to queries, and after a year or so, it will be, “Dude, that was a year ago! It’s old news.”

This isn’t rocket science, it’s rationing. It’s too few doctors seeing too many patients. The secret wait lists are a way of making the official waits list average a two-week wait for an appointment (nobody above water was to know about the months – and for some, years – to move from the secret list to the official list), which got those involved bonuses. The VA was working like a Swiss watch in reports to Washington. This is government-run healthcare in action. Medicare is racing for bankruptcy and an ever-decreasing pool of doctors will even talk to Medicaid patients.

The is the Utopia for which we are all headed.

[1] Jim McElhatton, He KNEW! Obama told of Veterans Affairs health care debacle as far back as 2008, in Washington Times, May 18 2014.

[2] Ron Fournier, Quiz: How Dumb Does Obama Think We Are?, in National Journal, May 20 2014.

Noel Canning Calls the President’s Bluff


Noel Canning, a Yakima [WA] Pepsi bottler and subsidiary of the Noel Corporation, got in a bit of tiff with its union, the International Brotherhood of Teamsters Local 760, which resulted in the union bringing Noel up on charges in front of the National Labor Relations Board, which found in the union’s favor. Noel Canning refused to implement the ruling, and the case went on a march through the courts. On January 13 2014, it was argued in front of the Supreme Court of the United States[1].

National Labor Relations Board v Noel Canning, et al (12-1281) is an interesting case in that it asks who can declare the Senate to be in recess, the president or the Senate itself? The Constitution says that the Houses of Congress sets their own rules, which includes when they are in session and when they are not[2]. It also states that the president can “fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session[3].” The problem, argues Noel Canning, is that the Senate was not in recess when President Obama appointed three members to the NLRB on January 4 2012, thus attaining a quorum, without which the Board could not rule on matters before it. The president claimed the authority under the Recess Appointment Clause of the Constitution, even though the Senate was holding regular pro forma sessions for the expressed purpose of keeping the body out of recess.

The case comes from the Fourth District Federal Court and the United States Court of Appeals for DC, both of which found for Noel. At issue before the Supreme Court are: can the President exercise the recess-appointment power during a recess while the Senate is still in session? Can the President use the recess-appointment power to fill any vacancy that exists during a recess, or only to fill those vacancies that arose during the recess? Additionally, the Court directed the parties to brief and argue whether the President’s recess-appointment power may be exercised when the Senate is convening every 3 days in pro forma sessions.

Notice the black-letter law – what the Constitution actually says – “the recess of the Senate,” and “commissions which shall expire at the end of their next session.” This obviously refers to the enumerated sessions of Congress and the intervening recess. This is the logic utilized by the lower courts. And, “fill up all vacancies that may happen during the recess of the Senate,” raising the question of whether a president can wait for Congress to recess before appointing to an existing vacancy, or if the vacancy must occur during the recess. This subject was directly addressed by Alexander Hamilton: “The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments ‘during the recess of the Senate, by granting commissions which shall expire at the end of their next session[4]’.”

The question the Supreme Court asked litigants to brief about the legitimacy of pro forma sessions for the expressed purpose of keeping the Senate out of recess is untested territory, and it will be interesting to hear the Court’s opinion.

[1] Holly Tao and Chihiro Tomioka, National Labor Relations Board v Noel Canning, Cornell University Law School, January 16 2014.

[2] Article I, Section 5, Clause 2, Constitution of the United States of America.

[3] Article II, Section 2, C1ause 3, Constitution of the United States of America.

[4] Alexander Hamilton, Federalist Paper No 67, in New York Packet, March 11 1788.



We will be treated to yet another philosophically interesting Supreme Court decision this year. In Riley v California 13-1312, we have a case where San Diego police perused an arrestee’s cellphone, after which he was charged with additional crimes. Stanford law professor Jeffrey Fisher, representing Mr Riley, urged the justices to require officers to obtain a search warrant before examining a smartphone. California Solicitor General Edward DuMont said the Justices should uphold the authority of police officers to check smartphones when they make an arrest. The two-hour oral arguments yielded the appearance of the Justices being split along predictable lines.

Of import here is that the search was conducted after Mr Riley was arrested – not merely stopped, not just ticketed. Arrested. That seems to satisfy the Fourth Amendment unreasonable search and seizure prohibition, as well as the Fifth Amendment stricture against self-incrimination. At question here is whether the search could be conducted sans search warrant.

Justice Elena Kagan urged her colleagues to insist on protecting privacy. “People carry their entire lives on their cellphone,” she said, “such a search could include every single eMail, all their bank records, all their medical records … as well as GPS data that would show everywhere they had traveled recently.” But Justice Samuel A Alito Jr pressed the opposite view. Police who make an arrest have always been permitted to check a wallet, a billfold or a purse, and that might include personal photos. “What’s the difference if the photos are in a billfold or on smartphone?” he asked. The smartphone may include more, but “I don’t see there’s much difference.” He went on to note that if an arrestee had his “Black Book” on him, the police would be entitled to examine every entry, identify every phone number, address and name contained therein. The same for a pocket scheduler, and so on[1]. The fact that a person chooses to combine all these records into a single device, and chooses to have that device on their person at a time of arrest, is neither required by law nor the fault of the police.

Several justices said they faced a stark choice: either permit officers to search phones at the scene of every arrest, or require them to always obtain a search warrant from a magistrate before looking inside a phone, laptop computer or other digital device. It was not clear where the majority would line up[2].

My feelings align with Justice Kegan when considering bank and medical records, and eMails – those, in my view, should require a search warrant. They are data that people without cell phones would not normally have in their possession. But with photos, schedules, phone numbers, notepad entries, and the like, I align with Justice Alito.

My thinking is that, until Congress considers it necessary to legislate specific rules concerning mobile devices, those things which might normally be found on an arrestee’s person during a pre-cellphone arrest and booking should be fair game for the police. Those things unique to cellphone use – such as the archiving of eMails, medical and banking records, should be privy to investigators only under warrant, as if they were kept in an office or residence (which would be the typical pre-cellphone practice). The car’s GPS, fair game; the cellphone’s GPS, no.

Police always ask if you have “any weapons or sharp objects?” during the pre-transport pat-down, and should such a transaction reveal an unregistered gun (or one that turns out to have a body on it) or syringe filled with a controlled substance, they are fairly obtained evidence subject to the filing of additional charges. An arrestee’s pocket litter and car are typically impounded and subject to warrantless search, post-arrest. This is all settled law.

What’s at question here seems to be records that are unique to typical practice involving mobile electronic devices, and are not in common practice to be carried on one’s person in their absence. To me, it’s not a question of volume, but of type. I don’t find the argument compelling that while a person might have a hundred or more photos on a cellphone, but only a dozen or less in a wallet – of import here is that a person might reasonably have photos in a wallet. This would not hold true for medical or bank records, detailed itinerary, memos, etc.

I look forward to the decision.

[1] David Savage, Justices split on whether police can search cellphones during arrests, in Los Angeles Times, April 29 2014, 1115PDT.

[2] Ibid.